EXECUTION
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
AURORA LOAN SERVICES INC., as Master Servicer,
Bank One, National Association, as Trustee,
and
▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Securities Administrator
---------------------------
TRUST AGREEMENT
Dated as of July 1, 2000
---------------------------
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-3
Table of Contents
Page
Article I
DEFINITIONS
Section 1.01. Definitions.................................................................................7
Section 1.02. Calculations Respecting Mortgage Loans. ...................................................43
Article II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans. .....................44
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation for Trust Fund. ..............47
Section 2.03. Representations and Warranties of the Depositor. ..........................................49
Section 2.04. Discovery of Breach. ......................................................................50
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans. ...................................51
Section 2.06. Grant Clause. .............................................................................52
Article III
THE CERTIFICATES
Section 3.01. The Certificates. .........................................................................52
Section 3.02. Registration. .............................................................................53
Section 3.03. Transfer and Exchange of Certificates. ....................................................53
Section 3.04. Cancellation of Certificates. .............................................................56
Section 3.05. Replacement of Certificates. ..............................................................56
Section 3.06. Persons Deemed Owners. ....................................................................57
Section 3.07. Temporary Certificates. ...................................................................57
Section 3.08. Appointment of Paying Agent. ..............................................................57
Section 3.09. Book-Entry Certificates. ..................................................................57
Article IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. .......................................................................59
Section 4.02. Application of Funds in the Collection Account. ...........................................61
Section 4.03. Reports to Certificateholders. ............................................................62
Section 4.04. Certificate Account. ......................................................................65
Section 4.05. Determination of LIBOR. ...................................................................66
Section 4.06. The Class 2-A5 Reserve Fund. ..............................................................68
Section 4.07. Securities Administrator Account...........................................................68
Article V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. ..................................................................70
Section 5.02. Distributions from the Certificate Account. ...............................................70
Section 5.03. Allocation of Realized Losses. ............................................................77
Section 5.04. Advances by Master Servicer and Trustee. ..................................................78
Section 5.05. Compensating Interest Payments. ...........................................................79
Section 5.06. Distributions of Principal on Redemption Certificates......................................79
Section 5.07. The Class 2-A5 Certificate Insurance Policy. ..............................................84
Article VI
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee and Securities Administrator. ...........................................87
Section 6.02. Certain Matters Affecting the Trustee and the Securities Administrator. ...................89
Section 6.03. Trustee Not Liable for Certificates. ......................................................91
Section 6.04. Trustee May Own Certificates. .............................................................91
Section 6.05. Eligibility Requirements for Trustee and Securities Administrator..........................91
Section 6.06. Resignation and Removal of Trustee and Securities Administrator............................92
Section 6.07. Successor Trustee and Successor Securities Administrator...................................93
Section 6.08. Merger or Consolidation of Trustee or Securities Administrator.............................93
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian...................................94
Section 6.10. Authenticating Agents......................................................................95
Section 6.11. Indemnification of Trustee and Securities Administrator....................................96
Section 6.12. Fees and Expenses of Securities Administrator, Custodian and Trustee.......................97
Section 6.13. Collection of Monies.......................................................................97
Section 6.14. Events of Default; Trustee To Act; Appointment of Successor................................97
Section 6.15. Additional Remedies of Trustee Upon Event of Default......................................101
Section 6.16. Waiver of Defaults........................................................................101
Section 6.17. Notification to Holders...................................................................101
Section 6.18. Directions by Certificateholders and Duties of Trustee During Event of Default............101
Section 6.19. Action Upon Certain Failures of the Master Servicer and Upon Event of Default.............102
Section 6.20. Preparation of Tax Returns and Other Reports..............................................102
Article VII
PURCHASE AND TERMINATION OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or Liquidation of All Mortgage Loans............103
Section 7.02. Procedure Upon Termination of Trust Fund..................................................104
Section 7.03. Additional Trust Fund Termination Requirements............................................105
Article VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders...........................................................105
Section 8.02. Access to List of Holders.................................................................106
Section 8.03. Acts of Holders of Certificates...........................................................107
Article IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer.............................................................107
Section 9.02. Master Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy....................................................................................108
Section 9.03. Master Servicer's Financial Statements and Related Information............................108
Section 9.04. Power to Act; Procedures..................................................................109
Section 9.05. Servicing Agreements Between the Master Servicer and Servicers; Enforcement of
Servicers' Obligations....................................................................110
Section 9.06. Collection of Taxes, Assessments and Similar Items........................................111
Section 9.07. Termination of Servicing Agreements; Successor Servicers..................................111
Section 9.08. Master Servicer Liable for Enforcement....................................................112
Section 9.09. No Contractual Relationship Between Servicers and Trustee, Securities
Administrator or Depositor................................................................112
Section 9.10. Assumption of Servicing Agreement by Trustee..............................................112
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements..............................................113
Section 9.12. Release of Mortgage Files.................................................................113
Section 9.13. Documents, Records and Funds in Possession of Master Servicer To Be Held for
Trustee...................................................................................114
Section 9.14. Representations and Warranties of the Master Servicer.....................................115
Section 9.15. Closing Certificate and Opinion...........................................................117
Section 9.16. Standard Hazard and Flood Insurance Policies..............................................117
Section 9.17. Presentment of Claims and Collection of Proceeds..........................................118
Section 9.18. Maintenance of the Primary Mortgage Insurance Policies....................................118
Section 9.19. Trustee To Retain Possession of Certain Insurance Policies and Documents..................118
Section 9.20. Realization Upon Defaulted Mortgage Loans.................................................119
Section 9.21. Compensation to the Master Servicer.......................................................119
Section 9.22. REO Property..............................................................................119
Section 9.23. [Omitted].................................................................................120
Section 9.24. Reports to the Trustee....................................................................120
Section 9.25. Annual Officer's Certificate as to Compliance.............................................120
Section 9.26. Annual Independent Accountants' Servicing Report..........................................121
Section 9.27. Merger or Consolidation...................................................................121
Section 9.28. Resignation of Master Servicer............................................................122
Section 9.29. Assignment or Delegation of Duties by the Master Servicer.................................122
Section 9.30. Limitation on Liability of the Master Servicer and Others.................................122
Section 9.31. Indemnification; Third-Party Claims.......................................................123
Article X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration......................................................................123
Section 10.02. Prohibited Transactions and Activities....................................................125
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of REMIC Status....................126
Section 10.04. REO Property..............................................................................126
Article XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment...................................................127
Section 11.02. Entire Agreement..........................................................................127
Section 11.03. Amendment.................................................................................127
Section 11.04. Voting Rights.............................................................................128
Section 11.05. Provision of Information..................................................................129
Section 11.06. Governing Law.............................................................................129
Section 11.07. Notices...................................................................................129
Section 11.08. Severability of Provisions................................................................130
Section 11.09. Indulgences; No Waivers...................................................................130
Section 11.10. Headings Not To Affect Interpretation.....................................................130
Section 11.11. Benefits of Agreement.....................................................................130
Section 11.12. Special Notices to the Rating Agencies....................................................130
Section 11.13. Counterparts..............................................................................131
Section 11.14. Transfer of Servicing.....................................................................131
Section 11.15. Matters Relating to the Class 2-A5 Certificate Insurance Policy...........................132
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 [Reserved]
Exhibit B-2 [Reserved]
Exhibit B-3 [Reserved]
Exhibit B-4 Form of Endorsement
Exhibit C [Reserved]
Exhibit D-l Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreements
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K Custodial Agreement
Exhibit L Insurance Agreement
Exhibit M Class 2-A5 Certificate Insurance Policy
Schedule A Mortgage Loan Schedule
Schedule B Principal Amount Schedules
This TRUST AGREEMENT, dated as of July 1, 2000 (the "Agreement"), is
by and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation,
as depositor (the "Depositor"), AURORA LOAN SERVICES INC., as master servicer
(the "Master Servicer"), BANK ONE, NATIONAL ASSOCIATION, a national banking
association, as trustee (the "Trustee") and ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
a national banking association, as securities administrator (the "Securities
Administrator").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from ▇▇▇▇▇▇ Capital, A
Division of ▇▇▇▇▇▇ Brothers Holdings Inc. (the "Seller") and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by it to the Trustee for inclusion in the Trust Fund. On the Closing Date, the
Depositor will acquire the Certificates from the Trust Fund, as consideration
for its transfer to the Trust Fund of the Mortgage Loans (exclusive of any
Retained Interest on such Mortgage Loans) and the other property constituting
the Trust Fund. The Depositor has duly authorized the execution and delivery
of this Agreement to provide for the conveyance to the Trustee of the Mortgage
Loans and the other property constituting the Trust Fund. All covenants and
agreements made by the Depositor, the Master Servicer, Trustee and the
Securities Administrator herein with respect to the Mortgage Loans and the
other property constituting the Trust Fund are for the benefit of the Holders
from time to time of the Certificates and the Class 2-A5 Certificate Insurer.
The Depositor, the Master Servicer and the Securities Administrator are
entering into this Agreement, and the Trustee is accepting the Trust Fund
created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be
treated for federal income tax purposes as comprising two real estate mortgage
investment conduits (each a "REMIC" or, in the alternative, the Lower Tier
REMIC and the Upper Tier REMIC, respectively). Each Certificate, other than
the Class R Certificate, represents ownership of a regular interest in the
Upper Tier REMIC for purposes of the REMIC Provisions. The Class R Certificate
represents ownership of the sole class of residual interest in each of the
Lower Tier REMIC and the Upper Tier REMIC for purposes of the REMIC
Provisions. The Upper Tier REMIC shall hold as assets the several classes of
uncertificated Lower Tier Interests, other than the Class LTR Interest, set
out below. Each such Lower Tier Interest, other than the Class LTR Interest,
is hereby designated as a regular interest in the Lower Tier REMIC.
Corresponding Class
Lower Tier Certificate Initial Class of Certificates
Class Designation Interest Rate Principal Amount (or Components)
----------- ------------- ---------------- ---------------
Class LT1-A1 9.50% $103,000,000 Class 1-A1
(1) Class 1-A2
Class LT1-A3 9.50% 108,500,000 Class 1-A3
(2) Class 1-A4
Class LT1-A5 9.50% 3,955,000 Class 1-A5
(3) Class 1-A6
Class LT1-A7 9.50% 46,400,000 Class 1-A7
(4) Class 1-A8
Class LT1-AP 0.00% 3,840,569 Class 1-AP
Class LT2-A1 8.25% 59,640,000 Class 2-A1
(5) Class 2-A2
Class LT2-A3 8.25% 90,000,000 Class 2-A3
(6) Class 2-A4
Class LT2-A5 8.25% 25,000,000 Class 2-A5
Class LT2-A6 8.25% 34,000,000 Class 2-A6
(7) Class 2-A7
Class LT2-AP 0.00% 1,371,539 Class 2-AP
Class LT3-A1 8.25% 74,836,000 Class 3-A1
Class LT3-AP 0.00% 716,219 Class 3-AP
Class LT3-AX 8.25% (8) Class 3-AX
Class LT4-A1 8.25% 44,963,000 Class 4-A1
Class LT4-AP 0.00% 153,481 Class 4-AP
Class LTB1(1) 9.50% 8,759,000 B1(1) Component
(9) B1(X1) Component
Class LTB1(2) 9.50% 6,418,000 B1(2) Component
(10) B1(X2) Component
Class LTB1(3) 8.25% 2,578,000 B1(3) Component
Class LTB1(4) 8.25% 2,028,000 B1(4) Component
Class LTB2(1) 9.50% 6,570,000 B2(1) Component
Class LTB2(2) 8.25% 3,491,000 B2(2) Component
Class LTB2(3) 8.25% 475,000 B2(3) Component
Class LTB2(4) 8.25% 1,268,000 B2(4) Component
Class LTB3(1) 9.50% 4,671,000 B3(1) Component
Class LTB3(2) 8.25% 1,690,000 B3(2) Component
Class LTB3(3) 8.25% 238,000 B3(3) Component
Class LTB3(4) 8.25% 760,000 B3(4) Component
Class LTB4(1) 9.50% 2,336,000 B4(1) Component
Class LTB4(2) 8.25% 1,351,000 B4(2) Component
Class LTB4(3) 8.25% 199,000 B4(3) Component
Class LTB4(4) 8.25% 507,000 B4(4) Component
Class LTB5(1) 9.50% 1,898,000 B5(1) Component
Class LTB5(2) 8.25% 1,126,000 B5(2) Component
Class LTB5(3) 8.25% 119,000 B5(3) Component
Class LTB5(4) 8.25% 507,000 B5(4) Component
Class LTB6(1) 9.50% 2,044,221 B6(1) Component
Class LTB6(2) 8.25% 1,126,645 B6(2) Component
Class LTB6(3) 8.25% 159,104 B6(3) Component
Class LTB6(4) 8.25% 507,316 B6(4) Component
Class LTR (11) (11) Class R
Class LT1-Q 9.50% 100 Class R
---------------------------
(1) The Class 1-A2 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT1-A1 Interest.
(2) The Class 1-A4 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT1-A3 Interest.
(3) The Class 1-A6 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT1-A5 Interest.
(4) The Class 1-A8 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT1-A7 Interest.
(5) The Class 2-A2 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT2-A1 Interest.
(6) The Class 2-A4 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT2-A5 Interest.
(7) The Class 2-A7 Certificates are entitled to receive on each
Distribution Date a specified portion of the interest payable on the
Class LT2-A6 Interest.
(8) The Class LT3AX Interest has a notional principal balance that
will at all times equal the product of (i) a fraction, the numerator of
which is the weighted average of the Net Mortgage Rates of the
Non-Discount Mortgage Loans in Pool 3 at the beginning of the related
Due Period minus 8.25%, the denominator of which is 8.25% and (ii) the
aggregate Class Principal Amount of the Non-AP Senior Certificates.
(9) The B1(X1) Component of the Class BX Certificate is entitled to
receive on each Distribution Date a specified portion of the interest
payable on the Class LTB1(1) Interest.
(10) The B1(X2) Component of the Class BX Certificate is entitled to
receive on each Distribution Date a specified portion of the interest
payable on the Class LTB1(2) Interest.
(11) The Class LTR Interest is the sole class of residual interest in
the Lower Tier REMIC. It does not have a stated principal amount or a
stated interest rate. Ownership of the Class LTR Interest is evidenced
by the Class R Certificate.
The Lower Tier REMIC shall hold as assets all assets included in the
Trust Fund other than the Class 2-A5 Reserve Fund, the Class 2-A5 Certificate
Insurance Policy, the Class 2-A5 Policy Payments Account, and the Class 2-A5
Rounding Account.
Distributions of interest and principal on each class of Lower Tier
Interest for any Distribution Date shall correspond to the distributions of
interest and principal required to be made on the Corresponding Class of
Certificates on such Distribution Date. Realized Losses and Net Prepayment
Interest Shortfalls as of any Distribution Date shall be allocated among the
classes of Lower Tier Interests in the same manner that such items are
allocated among the Corresponding Classes of Certificates.
As used herein (i) each Component is "related" to the other
Components of the same Certificate Group and to the Mortgage Pool having the
identical numerical designation as such Certificate Group, (ii) each
Certificate Group is "related" to the Mortgage Pool having the identical
numerical designation, and (iii) each Senior Certificate is "related" to the
Mortgage Pool and Certificate Group having the identical numerical
designation.
When reference is made herein to the "ranking" of a Certificate, the
highest ranking Certificate is the Certificate with the lowest numerical
designation and the lowest ranking Certificate is the Certificate with the
highest numerical designation. When reference is made herein to the "ranking"
of a Component, the highest ranking Component is the Component with the lowest
non-parenthetical numerical designation and the lowest ranking Component is
the Component with the highest non-parenthetical numerical designation.
The following table sets forth the Class designation, Certificate
Interest Rate, initial Class Principal Amount and minimum denomination or
minimum percentage interest for each Class of Certificates comprising the
interests in the Trust Fund created hereunder.
Minimum
Denomination
Certificate Initial Class or Minimum
Class Designation Interest Rate Principal Amount Percentage Interest
----------------- ------------- ---------------- -------------------
Class 1-A1 7.75% $103,000,000 $25,000
Class 1-A2 9.50% (1) 20%
Class 1-A3 (2) 108,500,000 $25,000
Class 1-A4 (3) (4) $1,000,000
Class 1-A5 8.00% 3,955,000 $1,000
Class 1-A6 9.50% (5) 20%
Class 1-A7 8.00% 46,400,000 $25,000,000
Class 1-A8 9.50% (6) 20%
Class 1-AP 0.00% 3,840,569 $25,000,000
Class 2-A1 7.75% 59,640,000 $25,000
Class 2-A2 8.25% (7) 20%
Class 2-A3 8.25% 90,000,000 $25,000
Class 2-A4 8.25% (8) 20%
Class 2-A5 7.65% 25,000,000 $1,000
Class 2-A6 8.00% 34,000,000 $25,000
Class 2-A7 8.25% (9) 20%
Class 2-AP 0.00% 1,371,539 $25,000
Class 3-A1 8.25% 74,836,000 $25,000
Class 3-AP 0.00% 716,219 $25,000
Class 3-AX 8.25% (10) 20%
Class 4-A1 8.25% 44,963,000 $25,000
Class 4-AP 0.00% 153,481 $25,000
Class B1 8.25% 19,783,000 $100,000
Class B2 8.25% 11,804,000 $100,000
Class BX 9.50% (12) 25%
Class B3 (11) 7,359,000 $100,000
Class B4 (11) 4,393,000 $250,000
Class B5 (11) 3,650,000 $250,000
Class B6 (11) 3,837,289 $250,000
Class R 9.50% 100 100
---------------------------
(1) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 1-A2 Certificates will
equal the product of (a) 18.4210526316% and (b) the Class Principal
Amount of the Class 1-A1 Certificates immediately preceding such
Distribution Date.
(2) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) for the Class 1-A3 Certificates
is the per annum rate equal to (a) 7.25%, with respect to the first
Distribution Date, and (b) thereafter, the lesser of (i) LIBOR plus
0.60% and (ii) 9.50%, subject to a minimum rate of 0.60%.
(3) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) for the Class 1-A4 Certificates
is the per annum rate equal to (a) 2.25%, with respect to the first
Distribution Date, and (b) thereafter, 8.90% minus LIBOR, subject to a
minimum rate of 0.00%.
(4) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 1-A4 Certificates will
equal the Class Principal Amount of the Class 1-A3 Certificates
immediately preceding such Distribution Date.
(5) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 1-A6 Certificates will
equal the product of (i) 15.7894736842% and (ii) the Class Principal
Amount of the Class 1-A5 Certificates immediately preceding such
Distribution Date.
(6) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 1-A8 Certificates will
equal the product of (i) 15.7894736842% and (ii) the Class Principal
Amount of the Class 1-A7 Certificates immediately preceding such
Distribution Date.
(7) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 2-A2 Certificates will
equal the product of (i) 6.0606060606% and (ii) the Class Principal
Amount of the Class 2-A1 Certificates immediately preceding such
Distribution Date.
(8) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 2-A4 Certificates will
equal the product of (i) 6.▇▇▇▇▇▇▇▇▇▇% and (ii) the Class Principal
Amount of the Class 2-A5 Certificates immediately preceding such
Distribution Date.
(9) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 2-A7 Certificates will
equal the product of (i) 3.0303030303% and (ii) the Class Principal
Amount of the Class 2-A6 Certificates immediately preceding such
Distribution Date.
(10) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 3-AX Certificates will
equal the product of (i) a fraction, the numerator of which is the
weighted average of the Net Mortgage Rates of the Non-Discount Mortgage
Loans in Pool 3 at the beginning of the related Due Period minus 8.25%,
the denominator of which is 8.25% and (ii) the sum of the principal
balances of the Non-Discount Mortgage Loans in Pool 3 for such date.
(11) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) for each of the Class B3, Class
B4, Class B5 and Class B6 Certificates is the per annum rate equal to
the weighted average of the Component Interest Rates for the Components
of such Class for such Distribution Date, weighted on the basis of the
Component Principal Amounts of such Components immediately preceding
such Distribution Date.
(12) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class BX Certificates will
equal the sum of the Component Notional Amount of the B1(X1) Component
immediately preceding such Distribution Date and the Component Notional
Amount of the B1(X2) Component immediately preceding such Distribution
Date. The initial Class Notional Amount of the Class BX Certificates
will be $2,016,973.68.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $647,202,199.00.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
hereby agree as follows:
Article I
DEFINITIONS
Section 1.01. Definitions. The following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage servicing practices of prudent
mortgage servicing institutions that service or master service mortgage loans
of the same type and quality as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, to the extent applicable to the
Trustee or the Master Servicer or (y) as provided in the applicable Servicing
Agreement, to the extent applicable to the Servicer.
Accountant: A person engaged in the practice of accounting who
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accretion Directed Certificate: None.
Accretion Termination Date: The first Distribution Date following the
Credit Support Depletion Date.
Accrual Amount: As to any Class of Accrual Certificates and each
Distribution Date through the Credit Support Depletion Date, the sum of (x)
any amount of Accrued Certificate Interest allocable to such Class pursuant to
Section 5.02(a)(iii) on such Distribution Date and (y) any Interest Shortfall
allocable to such Class pursuant to Section 5.02(a)(iv) on such Distribution
Date. As to any Class of Accrual Certificates and each Distribution Date after
the Credit Support Depletion Date, zero.
Accrual Certificate: None.
Accrual Component: None.
Accrual Period: With respect to any Distribution Date and any Class
of Certificates (other than any Class of Principal Only Certificates and any
LIBOR Certificates), the one-month period beginning immediately following the
end of the preceding Accrual Period (or from the Cut-off Date, in the case of
the first Accrual Period) and ending on the last day of the month preceding
the month in which such Distribution Date occurs. With respect to any
Distribution Date and any Class of LIBOR Certificates, the period beginning on
the Distribution Date in the calendar month preceding the month in which the
related Distribution Date occurs (or from the Closing Date, in the case of the
first Accrual Period) and ending on the day immediately preceding the related
Distribution Date.
Accrued Certificate Interest: As to any Class of Certificates (other
than any Principal Only Certificates and any Subordinate Certificates) and any
Component, and any Distribution Date, the product of the Certificate Interest
Rate for such Class of Certificates (or the Component Interest Rate for such
Component) and the Class Principal Amount (or Class Notional Amount) of such
Class of Certificates (or the Component Principal Amount or Component Notional
Amount of such Component) immediately preceding such Distribution Date, as
reduced by such Class's or Component's share (as provided herein) of (1) the
interest portion of any related Excess Losses for such Distribution Date, and
(2) the interest portion of any related Relief Act Reduction, in each case
allocable among the Class A Certificates and Components of the related
Certificate Group pro rata based on the Accrued Certificate Interest otherwise
distributable thereto. As to any Class of Subordinate Certificates on any
Distribution Date, the aggregate of Accrued Certificate Interest on the
Components of such Class.
Act: As defined in Section 3.03(c).
Additional Collateral: None.
Adjustable Rate Mortgage Loan: None.
Advance: An advance of the aggregate of payments of principal and
interest (net of the Servicing Fee) on one or more Mortgage Loans that were
due on the Due Date in the related Due Period and not received as of the close
of business on the related Determination Date, required to be made by or on
behalf of the Master Servicer and any Servicer (or by the Trustee) pursuant to
Section 5.04.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Class 2-A5 Certificate Insurance Premium: As to any
Distribution Date, the sum of (a) the Class 2-A5 Certificate Insurance Premium
for such Distribution Date and (b) the amount of any Class 2-A5 Certificate
Insurance Premium that was not distributed to the Class 2-A5 Certificate
Insurer on any prior Distribution Date.
Aggregate Master Servicing Compensation: Not applicable.
Aggregate Principal Balance: The aggregate of the Scheduled Principal
Balances for all Mortgage Loans at any date of determination.
Aggregate Subordinate Percentage: Not applicable.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
AP Percentage: As to any Discount Mortgage Loan, the percentage
equivalent of a fraction, the numerator of which is the applicable Designated
Rate minus the Net Mortgage Rate of such Discount Mortgage Loan and the
denominator of which is the applicable Designated Rate. As to any Non-Discount
Mortgage Loan in any Mortgage Pool, 0.00%.
AP Principal Distribution Amount: For any Distribution Date and for
each Certificate Group, the sum of the following amounts:
(i) the applicable AP Percentage of the principal portion of
each Scheduled Payment (without giving effect to any Debt Service
Reduction occurring prior to the Bankruptcy Coverage Termination
Date) on each Mortgage Loan in the related Mortgage Pool due during
the related Due Period;
(ii) the applicable AP Percentage of each of the following
amounts: (1) each Principal Prepayment collected on a Mortgage Loan
in the related Mortgage Pool during the applicable Prepayment Period,
(2) each other unscheduled collection, including Insurance Proceeds
and Net Liquidation Proceeds (other than with respect to any Mortgage
Loan in the related Mortgage Pool that was finally liquidated during
the applicable Prepayment Period), representing or allocable to
recoveries of principal of such Mortgage Loan in the related Mortgage
Pool received during the applicable Prepayment Period and (3) the
principal portion of all proceeds of the purchase of any Mortgage
Loan in the related Mortgage Pool (or, in the case of a permitted
substitution, amounts representing a principal adjustment) actually
received by the Trustee with respect to the applicable Prepayment
Period;
(iii) with respect to unscheduled recoveries allocable to
principal of any Mortgage Loan in the related Mortgage Pool that was
finally liquidated during the related Prepayment Period, the
applicable AP Percentage of the related net Liquidation Proceeds
allocable to principal; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
Apportioned Principal Balance: Not applicable.
Appraised Value: With respect to any Mortgage Loan, the amount set
forth in an appraisal made in connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however, that
neither the Trustee nor the Custodian shall be responsible for determining
whether any such assignment is in recordable form.
Aurora: Aurora Loan Services Inc. or its successor in interest, in
its capacity as a Servicer.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's
Certificate on behalf of the Depositor.
Available Distribution Amount: As to each Mortgage Pool and on any
Distribution Date, the sum of the following amounts:
(i) the total amount of all cash received by the Master
Servicer through the Remittance Date applicable to each Servicer and
deposited by the Master Servicer by the Master Servicer Remittance
Date for such Distribution Date on the Mortgage Loans of such
Mortgage Pool (including proceeds of any Insurance Policy and any
other credit support relating to such Mortgage Loans), plus all
Advances made by the Master Servicer or any Servicer (or the Trustee)
for such Distribution Date, any Compensating Interest Payment for
such date and Mortgage Pool and any amounts paid by any Servicer in
respect of Prepayment Interest Shortfalls in respect of the related
Mortgage Loans for such date, but not including:
(A) all amounts distributed pursuant to Section 5.02 on
prior Distribution Dates;
(B) all Scheduled Payments of principal and interest
collected but due on a date subsequent to the related Due
Period;
(C) all Principal Prepayments received or identified by the
applicable Servicer after the applicable Prepayment Period
(together with any interest payments received with such
prepayments to the extent that they represent the payment of
interest accrued on the related Mortgage Loans for the period
subsequent to the applicable Prepayment Period);
(D) any other unscheduled collection, including Net
Liquidation Proceeds and Insurance Proceeds, received by the
Master Servicer after the applicable Prepayment Period;
(E) all fees and amounts due or reimbursable to the Master
Servicer, the Trustee, the Custodian, the Securities
Administrator or any Servicer pursuant to the terms of this
Agreement, the Custodial Agreement or the applicable Servicing
Agreement;
(F) any Prepayment Penalty Amounts;
(G) any Prepayment Interest Excess; and
(H) such portion of each payment in respect of interest
representing Retained Interest; and
(ii) any other payment made by the Master Servicer, any
Servicer, the Seller, the Depositor, or any other Person with respect
to such Distribution Date (including the Purchase Price with respect
to any Mortgage Loan repurchased by the Seller, the Depositor or any
other Person).
Average Rate: Not applicable.
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator, dissolution, or termination, as the case may
be, of such Person pursuant to the provisions of either the United States
Bankruptcy Code of 1986, as amended, or any other similar state laws.
Bankruptcy Coverage Termination Date: As to any Mortgage Pool, the
Distribution Date on which the Bankruptcy Loss Limit has been reduced to zero
(or less than zero).
Bankruptcy Loss Limit: As of the Cut-off Date, with respect to Pool
1, $149,620; with respect to Pool 2, $192,545; with respect to Pool 3,
$100,000; and with respect to Pool 4, $103,464; which amounts shall be reduced
from time to time by the amount of Bankruptcy Losses allocated to the related
Certificates.
Bankruptcy Losses: With respect to the Mortgage Loans in the related
Mortgage Pool, losses that are incurred as a result of Deficient Valuations
and any reduction, in a bankruptcy proceeding, of the amount of the Scheduled
Payment on a Mortgage Loan other than as a result of a Deficient Valuation.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the
Trustee to the effect that any proposed transfer will not (i) cause the assets
of the Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor or the Trustee.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are
no longer permitted and Definitive Certificates are to be issued to
Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." As of the Closing Date, the following Classes of
Certificates constitute Book-Entry Certificates: the Class 1-A1, Class 1-A2,
Class 1-A3, Class 1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class
1-AP, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2A-6,
Class 2A-7, Class 2-AP, Class 3-A1, Class 3-AP, Class 3-AX, Class 4-A1, Class
4-AP, Class B1, Class B2, Class BX and Class B3.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a
day on which banking institutions in Maryland, Minnesota, New York, New York
or, if other than New York, the city in which the Class 2-A5 Certificate
Insurer is located, the city in which the Corporate Trust Office of the
Trustee is located, or the State of Colorado, or (iii) with respect to any
Remittance Date or any Servicer reporting date, the States specified in the
definition of "Business Day" in the applicable Servicing Agreement, are
authorized or obligated by law or executive order to be closed.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in
accordance with the provisions of Section 4.04.
Certificate Group: The Group 1 Certificates, Group 2 Certificates,
Group 3 Certificates or Group 4 Certificates, as applicable.
Certificate Interest Rate: With respect to each Class of
Certificates, the applicable per annum rate specified or determined as
provided in the Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Senior Certificate
other than a Notional Certificate, at the time of determination, the maximum
specified dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the initial principal amount
set forth on the face of such Certificate (plus, in the case of any Negative
Amortization Certificate, any Deferred Interest allocated thereto on previous
Distribution Dates, and plus, in the case of any Accrual Certificate, its
Percentage Interest of any related Accrual Amount for each previous
Distribution Date), less the amount of all principal distributions previously
made with respect to such Certificate, all Realized Losses allocated to such
Certificate; with respect to any Subordinate Certificate other than a Class BX
Certificate, at the time of determination, the sum of the Component Principal
Amounts of the Components of such Class. For purposes of Article V hereof,
unless specifically provided to the contrary, Certificate Principal Amounts
and Component Principal Amounts shall be determined as of the close of
business of the immediately preceding Distribution Date, after giving effect
to all distributions made on such date. Notional Certificates are issued
without Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of
"Holder."
Class: All Certificates bearing the same class designation.
Class 1-A7 Percentage: As to any Distribution Date, the lesser of (i)
100% and (ii) the percentage equivalent of the fraction, the numerator of
which is equal to the sum of (a) the Class Principal Amount of the Class 1-A7
Certificates immediately prior to such date and (b) $7,800,000, and the
denominator of which is equal to the Group 1 Non-AP Pool Balance for the
immediately preceding Distribution Date.
Class 1-A7 Prepayment Shift Percentage: As to any Distribution Date
occurring during the five years beginning on the first Distribution Date, 0%.
As to any Distribution Date occurring on or after the fifth anniversary of the
first Distribution Date, the following percentage for each applicable
Distribution Date: for any Distribution Date in the first year after such
fifth anniversary, 30%; for any Distribution Date in the second year
thereafter, 40%; for any Distribution Date in the third year thereafter, 60%;
for any Distribution Date in the fourth year thereafter, 80%; and for any
subsequent Distribution Date, 100%.
Class 1-A7 Priority Amount: As to any Distribution Date, an amount
equal to the lesser of (i) the sum of (x) the product of the Class 1-A7
Percentage for such date, the Class 1-A7 Scheduled Principal Percentage for
such date and the Group 1 Scheduled Principal Amount for such date and (y) the
product of the Class 1-A7 Percentage for such date, the Class 1-A7 Prepayment
Shift Percentage for such date and the Group 1 Unscheduled Principal Amount
for such date, and (ii) the Class Principal Amount of the Class 1-A7
Certificates immediately prior to such date.
Class 1-A7 Scheduled Principal Percentage: As to any Distribution
Date occurring during the five years beginning on the first Distribution Date,
0%. As to any Distribution Date occurring on or after the fifth anniversary of
the first Distribution Date, 100%.
Class 2-A5 Certificate Insurance Policy: The Certificate Guaranty
Insurance Policy No. 32818 dated the Closing Date issued by the Class 2-A5
Certificate Insurer to the Trustee for the benefit of the Holders of the Class
2-A5 Certificates, a copy of which is attached as Exhibit M hereto.
Class 2-A5 Certificate Insurance Premium: With respect to any
Distribution Date and with respect to the Class 2-A5 Certificate Insurance
Policy, an amount equal to 1/12th of the product of (a) the Class Principal
Amount of the Class 2-A5 Certificates as of such Distribution Date (prior to
giving effect to any distribution thereon on such Distribution Date) and (b)
the Class 2-A5 Premium Percentage.
Class 2-A5 Certificate Insurer: MBIA Insurance Corporation, or any
successor thereto, as issuer of the Class 2-A5 Certificate Insurance Policy.
Class 2-A5 Certificate Insurer Default: The occurrence and
continuance of any of the following events:
(a) the Class 2-A5 Certificate Insurer shall have failed to make a
payment required to be made under the Class 2-A5 Certificate Insurance Policy
in accordance with its terms;
(b) the Class 2-A5 Certificate Insurer shall have (i) filed a
petition or commenced a case or proceeding under any provision or chapter of
the United States Bankruptcy Code or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) made a general assignment for the benefit of its
creditors, or (iii) had an order for relief entered against it under the
United States Bankruptcy Code or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization that is final and nonappealable; or
(c) a court of competent jurisdiction, the Office of the Commissioner
of Insurance of the State of New York or other competent regulatory authority
shall have entered a final and nonappealable order, judgment or decree (i)
appointing a custodian, trustee, agent or receiver for the Class 2-A5
Certificate Insurer or for all or any material portion of its property or (ii)
authorizing the taking of possession by a custodian, trustee, agent or
receiver of the Class 2-A5 Certificate Insurer (or the taking of possession of
all or any material portion of the property of the Class 2-A5 Certificate
Insurer).
Class 2-A5 Guaranteed Distributions: (a) With respect to any
Distribution Date, (i) the Accrued Certificate Interest for the Class 2-A5
Certificates for such Distribution Date, including the amount of any Net
Prepayment Interest Shortfalls relating to prepayments and any Relief Act
Reductions allocable to the Class 2-A5 Certificates on such Distribution Date
that are not covered by the Class 2-A5 Reserve Fund and (ii) the amount of any
Realized Loss allocated to the Class 2-A5 Certificates on such Distribution
Date and (b) for the Final Scheduled Distribution Date, the Class Principal
Amount of the Class 2-A5 Certificates to the extent unpaid on the Final
Scheduled Distribution Date.
Class 2-A5 Policy Payments Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 5.07(c) in the name
of the Trustee for the benefit of the Class 2-A5 Certificateholders and
designated, "Bank One, National Association, Class 2-A5 Policy Payments
Account in trust for registered holders of Structured Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 2000-3, Class 2-A5."
Funds in the Class 2-A5 Policy Payments Account shall be held in trust for the
benefit of the Class 2-A5 Certificateholders for the uses and purposes set
forth in this Agreement.
Class 2-A5 Premium Percentage: The meaning assigned to such term in
the Insurance Agreement.
Class 2-A5 Reserve Fund: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06 with a depository
institution in the name of the Trustee for the benefit of the Class 2-A5
Certificateholders and designated "Bank One, Class 2-A5 Reserve Fund in trust
for registered holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2000-3, Class 2-A5." The Class 2-A5 Reserve
Fund shall not be a part of any REMIC and, for all federal and state income
tax purposes, shall be beneficially owned by ▇▇▇▇▇▇ Brothers Inc.
Class 2-A5 Rounding Account: The separate Eligible Account
established and maintained by the Trustee pursuant to Section 5.06(e) in the
name of the Trustee for the benefit of the Class 2-A5 Certificateholders and
designated "Bank One, Class 2-A5 Rounding Account in trust for registered
holders of Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2000-3, Class 2-A5." Funds in the Rounding Account shall
be held in trust for the benefit of the Class 2-A5 Certificateholders for the
uses and purposes set forth in this Agreement. The Class 2-A5 Rounding Account
shall not be a part of any REMIC and, for all federal and state income tax
purposes, shall be beneficially owned by ▇▇▇▇▇▇ Brothers Inc.
Class 2-A6 Percentage: As to any Distribution Date, the lesser of (i)
100% and (ii) the percentage equivalent of the fraction, the numerator of
which is equal to the sum of (a) the Class Principal Amount of the Class 2-A6
Certificates immediately prior to such date and (b) $25,000,000, and the
denominator of which is equal to the Group 2 Non-AP Pool Balance for the
immediately preceding Distribution Date.
Class 2-A6 Prepayment Shift Percentage: As to any Distribution Date
occurring during the five years beginning on the first Distribution Date, 0%.
As to any Distribution Date occurring on or after the fifth anniversary of the
first Distribution Date, the following percentage for each applicable
Distribution Date: for any Distribution Date in the first year after such
fifth anniversary, 30%; for any Distribution Date in the second year
thereafter, 40%; for any Distribution Date in the third year thereafter, 60%;
for any Distribution Date in the fourth year thereafter, 80%; and for any
subsequent Distribution Date, 100%.
Class 2-A6 Priority Amount: As to any Distribution Date, an amount
equal to the lesser of (i) the sum of (x) the product of the Class 2-A6
Percentage for such date, the Class 2-A6 Scheduled Principal Percentage for
such date and the Group 2 Scheduled Principal Amount for such date and (y) the
product of the Class 2-A6 Percentage for such date, the Class 2-A6 Prepayment
Shift Percentage for such date and the Group 2 Unscheduled Principal Amount
for such date, and (ii) the Class Principal Amount of the Class 2-A6
Certificates immediately prior to such date.
Class 2-A6 Scheduled Principal Percentage: As to any Distribution
Date occurring during the five years beginning on the first Distribution Date,
0%. As to any Distribution Date occurring on or after the fifth anniversary of
the first Distribution Date, 100%.
Class A Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class
1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class 1-AP, Class 2-A1,
Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2-A6, Class 2-A7, Class
2-AP, Class 3-A1, Class 3-AP, Class 3-AX, Class 4-A1 or Class 4-AP
Certificate.
Class AP Certificate: Any Class 1-AP, Class 2-AP, Class 3-AP or Class
4-AP Certificate.
Class AP Deferred Amount: As to any Distribution Date on or prior to
the Credit Support Depletion Date, (i) with respect to each Class of the Class
1-AP, Class 2-AP, Class 3-AP and Class 4-AP Certificates, the aggregate of the
applicable AP Percentage of the principal portion of each Realized Loss for
such Distribution Date on a Discount Mortgage Loan in the related Mortgage
Pool.
Class B Certificate: Any Class B1, Class B2, Class BX, Class B3,
Class B4, Class B5 or Class B6 Certificate.
Class LTR Interest: The sole residual interest in the Lower Tier
REMIC.
Class Notional Amount: With respect to each Class of Notional
Certificates, the applicable class notional amount calculated as provided in
the Preliminary Statement hereto.
Class Percentage: With respect to each Component, for each
Distribution Date, the percentage obtained by dividing the Component Principal
Amount of such Component immediately prior to such Distribution Date by the
sum of the Class Principal Amounts of all Classes of related Senior
Certificates and the Component Principal Amounts of all related Components,
immediately prior to such date.
Class Principal Amount: With respect to each Class of Certificates
other than any Class of Notional Certificates, the aggregate of the
Certificate Principal Amounts of all Certificates of such Class at the date of
determination. With respect to each Class of Notional Certificates, zero.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: July 28, 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.
Compensating Interest Payment: With respect to each Mortgage Pool and
any Distribution Date, an amount equal to the excess of (x) the aggregate of
any Prepayment Interest Shortfalls with respect to such Mortgage Pool and such
Distribution Date over (y) the aggregate of any amounts required to be paid by
any Servicer in respect of such shortfalls but not paid; provided that the
aggregate Compensating Interest Payment to be paid by the Master Servicer for
any Distribution Date shall not exceed the Master Servicing Fee that would be
payable to the Master Servicer without giving effect to any Compensating
Interest Payment.
Component: Each of the components having the designations, initial
Component Principal Amounts or Component Notional Amounts and Component
Interest Rates as follows:
Initial Component
Principal Amount
or Component Component
Designation Notional Amount Interest Rate
B1(1) $8,759,000 8.25%
B1(X1) 1,152,500 9.50%
B1(2) 6,418,000 8.25%
B1(X2) 864,473 9.50%
B1(3) 2,578,000 8.25%
B1(4) 2,028,000 8.25%
B2(1) 6,570,000 8.25%
B2(2) 3,491,000 8.25%
B2(3) 475,000 8.25%
B2(4) 1,268,000 8.25%
B3(1) 4,671,000 9.50%
B3(2) 1,690,000 8.25%
B3(3) 238,000 8.25%
B3(4) 760,000 8.25%
B4(1) 2,336,000 9.50%
B4(2) 1,351,000 8.25%
B4(3) 199,000 8.25%
B4(4) 507,000 8.25%
B5(1) 1,898,000 9.50%
B5(2) 1,126,000 8.25%
B5(3) 119,000 8.25%
B5(4) 507,000 8.25%
B6(1) 2,044,221 9.50%
B6(2) 1,126,645 8.25%
B6(3) 159,104 8.25%
B6(4) 507,316 8.25%
Component Certificate: Any Class B1, B2, BX, B3, B4, B5 or B6
Certificate.
Component Interest Rate: With respect to each Component, the
applicable per annum rate specified for such Component in the definition of
the term "Component".
Component Notional Amount: With respect to any Distribution Date and
the B1(X1) Component, the product of (i) 13.1578947368% and (ii) the Component
Principal Amount of the B1(1) Component immediately prior to such Distribution
Date; with respect to any Distribution Date and the B1(X2) Component, the
product of (i) 13.1578947368% and (ii) the Component Principal Amount of the
B1(2) Component immediately prior to such Distribution Date.
Component Principal Amount: With respect to any Distribution Date and
any Component, the Initial Component Principal Amount thereof (as set forth in
the definition of the term "Component") less the sum of (x) all amounts
distributed in reduction thereof on previous Distribution Dates pursuant to
Section 5.02, (y) the amount of all Realized Losses allocated thereto pursuant
to Section 5.03 and (z) any Component Writedown Amount allocated to such
Component.
Component Writedown Amount: As to any Distribution Date and any
Component, the amount by which the sum of the aggregate Certificate Principal
Amount of the related Senior Certificates and the aggregate Component
Principal Amount of the related Components (after giving effect to
distributions of principal and allocation of Realized Losses on such date)
exceeds the aggregate Scheduled Principal Balance of the Mortgage Loans in the
related Mortgage Pool for such Distribution Date.
Control: The meaning specified in Section 8-106 of the UCC.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Veterans Administration.
Converted Mortgage Loan: None.
Convertible Mortgage Loan: None.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and
a Proprietary Lease.
Cooperative Loan Documents: As to any Cooperative Loan, (i) the
Cooperative Shares, together with a stock power in blank; (ii) the original
executed Security Agreement and the assignment of the Security Agreement
endorsed in blank; (iii) the original executed Proprietary Lease and the
assignment of the Proprietary Lease endorsed in blank; (iv) the original
executed Recognition Agreement and the assignment of the Recognition Agreement
(or a blanket assignment of all Recognition Agreements) endorsed in blank; (v)
the executed UCC-1 financing statement with evidence of recording thereon,
which has been filed in all places required to perfect the security interest
in the Cooperative Shares and the Proprietary Lease; and (vi) executed UCC-3
financing statements (or copies thereof) or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the Cooperative Shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at 1 Bank ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Global
Corporate Trust Services.
Corresponding Class: With respect to any class of Lower Tier
Interests, the Class of Certificates or Component so designated in the
Preliminary Statement hereto. With respect to any Class of Certificates or
Component, the class or classes of Lower Tier Interests so designated in the
Preliminary Statement hereto.
Corresponding Component: None.
Credit Score: With respect to any Mortgage Loan, a numerical
assessment of default risk with respect to the Mortgagor under such Mortgage
Loan, determined on the basis of a methodology developed by Fair, ▇▇▇▇▇ & Co.,
Inc.
Credit Support Depletion Date: With respect to each Certificate
Group, the Distribution Date on which, giving effect to all distributions on
such date, the aggregate Component Principal Amount of the Components in any
Certificate Group is reduced to zero.
Credit Support Percentage: As to any Component and any Distribution
Date, the sum of the Class Percentages of all Components in the related
Certificate Group that rank lower in priority than such Component.
Custodial Agreement: Each custodial agreement attached as Exhibit K
hereto, and any custodial agreement subsequently executed by the Trustee
substantially in the form thereof.
Custodian: Each custodian appointed by the Trustee pursuant to a
Custodial Agreement, and any successor thereto.
Cut-off Date: July 1, 2000.
Cut-off Date Aggregate Principal Balance: With respect to the
Mortgage Loans in the Trust Fund on the Closing Date, the Aggregate Principal
Balance for all such Mortgage Loans as of the Cut-off Date.
DCR: Duff & ▇▇▇▇▇▇ Credit Rating Co., or any successor in interest.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction of the Scheduled Payment that the related Mortgagor is obligated to
pay on any Due Date as a result of any proceeding under Bankruptcy law or any
similar proceeding.
Deceased Holder: With respect to a Holder of a Redemption
Certificate, as defined in Section 5.06(b).
Deferred Interest: With respect to any Class of Negative Amortization
Certificates and any Distribution Date, the lesser of (x) the applicable
Interest Distribution Amount for such date (without giving effect to any
Deferred Interest) and (y) the aggregate Mortgage Loan Negative Amortization,
if any, for the related Due Period.
Deficiency Amount: The meaning assigned to such term in the Class
2-A5 Certificate Insurance Policy.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding indebtedness under such Mortgage Loan, which
valuation results from a proceeding under Bankruptcy law or any similar
proceeding.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Deposit Date: With respect to each Distribution Date, the Business
Day immediately preceding such Distribution Date.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Designated Rate: With respect to Pool 1, 9.50% per annum; with
respect to Pool 2, 8.25% per annum; with respect to Pool 3, 8.25% per annum;
and with respect to Pool 4, 8.25% per annum.
Determination Date: With respect to each Distribution Date, the day
of the latest Remittance Date immediately preceding such Distribution Date.
Discount Mortgage Loan: With respect to Pool 1, any Mortgage Loan
with a Net Mortgage Rate less than 9.50% per annum; with respect to Pool 2,
any Mortgage Loan with a Net Mortgage Rate less than 8.25% per annum; with
respect to Pool 3, any Mortgage Loan with a Net Mortgage Rate less than 8.25%
per annum; and with respect to Pool 4, any Mortgage Loan with a Net Mortgage
Rate less than 7.25% per annum.
Disqualified Organization: Either (i) the United States, (ii) any
state or political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative
described in section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax imposed
by section 511 of the Code, (vii) any organization described in section
1381(a)(2)(C) of the Code, (viii) any "electing large partnership" described
in section 775 of the Code, or (ix) any other entity designated as a
Disqualified Organization by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of the
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by such governmental unit.
Distribution Date: The 25th day of each month, or, if such 25th day
is not a Business Day, the next succeeding Business Day commencing in August
2000.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable
to the Rating Agencies or (ii) an account or accounts the deposits in which
are insured by the FDIC to the limits established by such corporation,
provided that any such deposits not so insured shall be maintained in an
account at a depository institution or trust company whose commercial paper or
other short term debt obligations (or, in the case of a depository institution
or trust company which is the principal subsidiary of a holding company, the
commercial paper or other short term debt or deposit obligations of such
holding company or depository institution, as the case may be) have been rated
by each Rating Agency in its highest short-term rating category, or (iii) a
segregated trust account or accounts (which shall be a "special deposit
account") maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity, in
a manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts
may bear interest.
Eligible Investments: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the
United States of America or any agency or instrumentality of the
United States of America the obligations of which are backed by the
full faith and credit of the United States of America ("Direct
Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries
of foreign depositories and the Trustee or any agent of the Trustee,
acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any state
thereof and subject to supervision and examination by federal or
state banking authorities, so long as at the time of investment or
the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, FNMA or FHLMC with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC,
if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which have a credit rating
from each Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest short-term credit ratings of each Rating Agency;
provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the Aggregate Principal
Balance and the aggregate principal amount of all Eligible
Investments in the Certificate Account; provided, further, that such
securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating
Agency;
(v) commercial paper (including both non
interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more than
180 days after the date of issuance thereof) rated by each Rating
Agency in its highest short-term ratings;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct
ownership interests in future interest or principal payments on
obligations of the United States of America or its agencies or
instrumentalities (which obligations are backed by the full faith and
credit of the United States of America) held by a custodian in
safekeeping on behalf of the holders of such receipts; and
(viii) any other demand, money market fund, common trust
fund or time deposit or obligation, or interest-bearing or other
security or investment (including those managed or advised by the
Securities Administrator or an Affiliate thereof), (A) rated in the
highest rating category by each Rating Agency or (B) that would not
adversely affect the then current rating by either Rating Agency of
any of the Certificates (in the case of the Class 2-A5 Certificates,
determined without regard to the Class 2-A5 Certificate Insurance
Policy).
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.
Entitlement Holder: The meaning specified in Section 8-102(a)(7) of
the UCC.
Entitlement Order: The meaning specified in Section 8-102(a)(8) of
the UCC (i.e., generally, an order directing the transfer or redemption of any
Financial Asset).
ERISA-Restricted Certificate: Any Group 3 Certificate or any
Subordinate Certificate.
Escrow Account: Any account established and maintained by the
applicable Servicer pursuant to the applicable Servicing Agreement.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.14(a).
Excess Loss: With respect to each Mortgage Pool, any Bankruptcy Loss,
or portion thereof, in excess of the then-applicable Bankruptcy Loss Limit,
any Fraud Loss, or portion thereof, in excess of the then-applicable Fraud
Loss Limit, and any Special Hazard Loss, or portion thereof, in excess of the
then-applicable Special Hazard Loss Limit.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: July 25, 2030.
Financial Asset: The meaning specified in Section 8-102(a)(9) of the
UCC.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fitch: Fitch IBCA, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loss: With respect to each Mortgage Pool, losses on a
Liquidated Mortgage Loan sustained by reason of a default arising from fraud,
dishonesty or misrepresentation in connection with the related Mortgage Loan,
as reported by the Servicer to the Master Servicer.
Fraud Loss Limit: As of any Distribution Date after the Cut-off Date
(x) prior to the first anniversary of the Cut-off Date, with respect to Pool
1, $5,839,477; with respect to Pool 2, $4,504,283; with respect to Pool 3,
$793,203; and with respect to Pool 4, $1,013,876; less the aggregate of the
related Fraud Losses since the Cut-off Date, and (y) from the first to the
fourth anniversary of the Cut-off Date, an amount equal to (1) the lesser of
(a) the Fraud Loss Limit as of the most recent anniversary of the Cut-off Date
and (b) 1% of the aggregate principal balance of all the related Mortgage
Loans as of the most recent anniversary of the Cut-off Date. On or after the
fifth anniversary of the Cut-off Date, the Fraud Loss Limit shall be zero.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Group 1: All of the Group 1 Certificates.
Group 1 Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class
1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class 1-AP, Class BX or
Class R Certificate, and any B1(1), B1(X1), B1(X2), B2(1), B3(1), B4(1), B5(1)
and B6(1) Component.
Group 1 Scheduled Principal Amount: With respect to any Distribution
Date and each Pool 1 Mortgage Loan, the amount described in clause (i)
(without application of the related Senior Percentage) of the definition of
Senior Principal Distribution Amount for Group 1.
Group 1 Unscheduled Principal Amount: With respect to any
Distribution Date and each Pool 1 Mortgage Loan, the sum of the amounts
described in clauses (ii) and (iii) (without application of the related Senior
Prepayment Percentage) of the definition of Senior Principal Distribution
Amount hereunder for Group 1.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class 2-A1, Class 2-A2, Class 2-A3, Class
2-A4, Class 2-A5, Class 2-A6, Class 2-A7 or Class 2-AP Certificate, and any
B1(2), B2(2), B3(2), B4(2), B5(2) and B6(2) Component.
Group 2 Scheduled Principal Amount: With respect to any Distribution
Date and each Pool 2 Mortgage Loan, the amount described in clause (i)
(without application of the related Senior Percentage) of the definition of
Senior Principal Distribution Amount for Group 2.
Group 2 Unscheduled Principal Amount: With respect to any
Distribution Date and each Pool 2 Mortgage Loan, the sum of the amounts
described in clauses (ii) and (iii) (without application of the related Senior
Prepayment Percentage) of the definition of Senior Principal Distribution
Amount for Group 2.
Group 3: All of the Group 3 Certificates.
Group 3 Certificate: Any Class 3-A1, Class 3-AP or Class 3-AX
Certificate, and any B1(3), B2(3), B2(3), B3(3), B4(3), B5(3) and B6(3)
Component.
Group 4: All of the Group 4 Certificates.
Group 4 Certificate: Any Class 4-A1 or Class 4-AP Certificate, and
any B1(4), B2(4), B3(4), B4(4), B5(4) and B6(4) Component.
Group Subordinate Amount: Not Applicable.
Holder or Certificateholder: The registered owner of any Certificate
as recorded on the books of the Certificate Registrar except that, solely for
the purposes of taking any action or giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the
Trustee, the Master Servicer, any Servicer or any Affiliate thereof shall be
deemed not to be outstanding in determining whether the requisite percentage
necessary to effect any such consent has been obtained, except that, in
determining whether the Trustee shall be protected in relying upon any such
consent, only Certificates which a Responsible Officer of the Trustee knows to
be so owned shall be disregarded. The Trustee may request and conclusively
rely on certifications by the Depositor, the Master Servicer and any Servicer
in determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer or such Servicer.
Individual Redemption Certificate: A Redemption Certificate with a
$1,000 Certificate Principal Amount.
HUD: The United States Department of Housing and Urban Development,
or any successor thereto.
Independent: When used with respect to any Accountants, a Person who
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Initial LIBOR Rate: 6.65%.
Insurance Agreement: The Insurance Agreement dated as of July 1,
2000, among the Depositor, the Seller, the Trustee and the Class 2-A5
Certificate Insurer, a copy of which is attached as Exhibit L hereto.
Insurance Policy: Any Primary Mortgage Insurance Policy and any
standard hazard insurance policy, earthquake insurance policy or title
insurance policy relating to the Mortgage Loans or the Mortgaged Properties,
to be in effect as of the Closing Date or thereafter during the term of this
Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
the Servicer in connection with procuring such proceeds, (ii) to be applied to
restoration or repair of the related Mortgaged Property, (iii) required to be
paid over to the Mortgagor pursuant to law or the related Mortgage Note or
(iv) to be applied toward payment of any Retained Interest.
Insured Payment: The meaning assigned to such term in the Class 2-A5
Certificate Insurance Policy.
Interest Distribution Amount: Not applicable.
Interest Shortfall: With respect to any Class of Certificates (other
than a Principal Only Certificate) and any Distribution Date, any Accrued
Certificate Interest not distributed (or added to principal) with respect to
any previous Distribution Date, other than any Net Prepayment Interest
Shortfalls.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Latest Possible Maturity Date: The latest date specified in Section
7.01(a).
▇▇▇▇▇▇ Capital: ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers
Holdings Inc., or any successor in interest.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR
Rate. With respect to each subsequent Accrual Period, the per annum rate
determined pursuant to Section 4.05 on the basis of London interbank offered
rate quotations for one-month Eurodollar deposits, as such quotations may
appear on the display designated as page "LIUS01M" on the Bloomberg Financial
Markets Commodities News (or such other page as may replace such page on that
service for the purpose of displaying London interbank offered quotations of
major banks).
LIBOR Certificate: Any Class 1-A3 or Class 1-A4 Certificate.
LIBOR Component: None.
LIBOR Determination Date: The second London Business Day immediately
preceding the commencement of each Accrual Period with respect to any LIBOR
Certificates other than the first such Accrual Period.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Master Servicer or the applicable Servicer has determined that all amounts
that it expects to recover on behalf of the Trust Fund from or on account of
such Mortgage Loan have been recovered.
Liquidation Expenses: Expenses that are incurred by the Master
Servicer or a Servicer in connection with the liquidation of any defaulted
Mortgage Loan and are not recoverable under the applicable Primary Mortgage
Insurance Policy, including, without limitation, foreclosure and
rehabilitation expenses, legal expenses and unreimbursed amounts expended
pursuant to Sections 9.06, 9.16 or 9.22.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, including any
amounts remaining in the related Escrow Account.
Living Holder: Any Holder of a Redemption Certificate other than a
Deceased Holder.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of
the principal balance of such Mortgage Loan at origination, or such other date
as is specified, to the Original Value thereof.
London Business Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England and New
York City.
Lower Tier Interest: Any one of the classes of lower tier interests
described in the Preliminary Statement hereto.
Lower Tier Interest Rate: As to each Lower Tier Interest, the
applicable interest rate, if any, as described in the Preliminary Statement
hereto.
Lower Tier REMIC: One of the two separate REMICs as described in the
Preliminary Statement hereto.
Maintenance: With respect to any Cooperative Unit, the rent or fee
paid by the Mortgagor to the Cooperative Corporation pursuant to the
Proprietary Lease.
Master Servicer: Aurora Loan Services Inc., or any successor in
interest, or if any successor master servicer shall be appointed as herein
provided, then such successor master servicer.
Master Servicer Remittance Date: No later than 2:00 p.m. eastern time
two Business Days after each Remittance Date.
Master Servicing Fee: As to any Distribution Date, all income and
gain realized from the investment of funds in the Collection Account during
the period from and including the Master Servicer Remittance Date in the
calendar month immediately preceding the month in which such Distribution Date
occurs, to but excluding the Master Servicer Remittance Date relating to such
Distribution Date.
Master Servicing Fee Rate: Not applicable.
Material Defect: As defined in Section 2.02(c) hereof.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
Corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related
Mortgage, or an Assignment of Mortgage, has been or will be recorded in the
name of MERS, as agent for the holder from time to time of the Mortgage Note.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor in
interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the
Trustee or a Custodian pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 or Section
2.05, including without limitation, each Mortgage Loan listed on the Mortgage
Loan Schedule, as amended from time to time.
Mortgage Loan Sale Agreement: The agreement, dated as of July 1,
2000, for the sale of the Mortgage Loans by ▇▇▇▇▇▇ Capital to the Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time pursuant to Section 2.02.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Any of Pool 1, Pool 2, Pool 3 or Pool 4.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
Mortgaged Property: Either of (x) the fee simple interest in real
property, together with improvements thereto including any exterior
improvements to be completed within 120 days of disbursement of the related
Mortgage Loan proceeds, or (y) in the case of a Cooperative Loan, the related
Cooperative Shares and Proprietary Lease, securing the indebtedness of the
Mortgagor under the related Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Negative Amortization Certificate: None.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds net of unreimbursed expenses incurred
in connection with liquidation or foreclosure and unreimbursed Advances,
Servicing Advances, Servicing Fees and Retained Interest, if any, received and
retained in connection with the liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage
Rate thereof reduced by the sum of the applicable Servicing Fee Rate, the
applicable Retained Interest Rate, if any, and, if applicable, the premium
rate on any lender-provided mortgage insurance.
Net Prepayment Interest Shortfall: With respect to each Mortgage Pool
and any Distribution Date, the excess, if any, of any Prepayment Interest
Shortfalls with respect to the Mortgage Loans in such Mortgage Pool for such
date over the sum of any amounts paid by the Servicers with respect to such
shortfalls and any amount that is required to be paid by the Master Servicer
in respect of such shortfalls pursuant to this Agreement.
Non-AP Percentage: As to any Discount Mortgage Loan, the percentage
equivalent of the fraction, the numerator of which is the Net Mortgage Rate of
such Discount Mortgage Loan and the denominator of which is the applicable
Designated Rate. As to any Non-Discount Mortgage Loan in any Mortgage Pool,
100%.
Non-AP Pool Balance: As to each Mortgage Pool and any Distribution
Date, the sum of the applicable Non-AP Percentage of the Scheduled Principal
Balance of each Mortgage Loan included in such Mortgage Pool.
Non-AP Senior Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3,
Class 1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class 2-A1, Class
2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2-A6, Class 2-A7, Class 3-A1,
Class 3-AX, Class 4-A1 or Class R Certificate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Discount Mortgage Loan: With respect to Pool 1, any Mortgage Loan
with a Net Mortgage Rate equal to or greater than 9.50% per annum; with
respect to Pool 2, any Mortgage Loan with a Net Mortgage Rate equal to or
greater than 8.25% per annum; with respect to Pool 3, any Mortgage Loan with a
Net Mortgage Rate equal to or greater than 8.25% per annum; and with respect
to Pool 4, any Mortgage Loan with a Net Mortgage Rate equal to or greater than
8.25% per annum.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than (i) a citizen or resident of
the United States; (ii) a corporation (or entity treated as a corporation for
tax purposes) created or organized in the United States or under the laws of
the United States or of any state thereof, including, for this purpose, the
District of Columbia; (iii) a partnership (or entity treated as a partnership
for tax purposes) organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in gross income for
United States income tax purposes regardless of its source; or (v) a trust, if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last
clause of the preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
U.S. Persons prior to such date, may elect to continue to be U.S. Persons.
Notice of Nonpayment: The notice to be delivered by the Trustee to
the Class 2-A5 Certificate Insurer with respect to any Distribution Date
pursuant to Section 5.07(a), which shall be in the form attached to the Class
2-A5 Certificate Insurance Policy.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class 1-A2, Class 1-A4, Class 1-A6, Class
1-A8, Class 2-A2, Class 2-A4, Class 2-A7, Class 3-AX or Class BX Certificate.
Notional Component: The B1(X1) or B1(X2) Component.
Offering Document: The Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee, and who may be in-house or
outside counsel to the Depositor, the Master Servicer or a Servicer but which
must be Independent outside counsel with respect to any such opinion of
counsel concerning the transfer of any Residual Certificate or concerning
certain matters with respect to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the taxation, or the federal income tax status,
of each REMIC. For purpose of Section 2.01(c)(i), the Opinion of Counsel
referred to therein may take the form of a memorandum of law or other
acceptable assurance.
Original Credit Support Percentage: With respect to each Component,
the Credit Support Percentage for such Component on the Closing Date.
Original Group Subordinate Amount: As to any Mortgage Pool, the
aggregate Initial Component Principal Amounts of the related Components (as
set forth in the definition of the term "Component").
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate and the related
Class, such Certificate's percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the same
Class as such Certificate. With respect to any Certificate other than a
Notional Certificate, the Percentage Interest evidenced thereby shall equal
the initial Certificate Principal Amount thereof divided by the initial Class
Principal Amount of all Certificates of the same Class. With respect to any
Notional Certificate, the Percentage Interest evidenced thereby shall be as
specified on the face thereof.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: ▇▇▇▇▇▇ Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. 2510.3-101.
Pool 1: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 1.
Pool 1 Mortgage Loan: Any Mortgage Loan in Pool 1.
Pool 2: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 2.
Pool 2 Mortgage Loan: Any Mortgage Loan in Pool 2.
Pool 3: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 3.
Pool 3 Mortgage Loan: Any Mortgage Loan in Pool 3.
Pool 4: The aggregate of the Mortgage Loans identified on the
Mortgage Loan Schedule as being included in Pool 4.
Pool 4 Mortgage Loan: Any Mortgage Loan in Pool 4.
Pool PMI Policy: Not applicable.
Preference Amount: The meaning assigned to such term in the Class
2-A5 Certificate Insurance Policy.
Prepayment Interest Excess: With respect to any Principal Prepayment
in full received on Mortgage Loans serviced by Aurora from the first day
through the sixteenth day of any month, all amounts paid in respect of
interest at the applicable Net Mortgage Rate on such Principal Prepayment.
Prepayment Interest Shortfall: With respect to any Distribution Date
and (x) any Principal Prepayment in part and, with respect to Mortgage Loans
serviced by Servicers other than Aurora, any Principal Prepayment in full and
(y) any Principal Prepayment in full with respect to Mortgage Loans serviced
by Aurora received on or after the seventeenth day of the month immediately
preceding the month of such Distribution Date, but on or before the last day
of the month immediately preceding the month of such Distribution Date, the
difference between (i) one full month's interest at the applicable Mortgage
Rate (giving effect to any applicable Relief Act Reduction), as reduced by the
applicable Servicing Fee Rate and the applicable Retained Interest Rate, if
any, on the outstanding principal balance of such Mortgage Loan immediately
prior to such prepayment and (ii) the amount of interest actually received
with respect to such Mortgage Loan in connection with such Principal
Prepayment.
Prepayment Penalty Amounts: With respect to any Distribution Date,
all premiums or charges paid by the obligors under the Mortgage Notes due to
Principal Prepayments collected by the Servicers during the immediately
preceding Prepayment Period.
Prepayment Period: With respect to any Distribution Date and any
Principal Prepayment in part and, with respect to Mortgage Loans serviced by
Servicers other than Aurora, any Principal Prepayment in full, the period from
the first day of the month immediately preceding the month of such
Distribution Date to the last day of the month of such Distribution Date. With
respect to any Distribution Date and a Principal Prepayment in full (including
any liquidation) with respect to Mortgage Loans serviced by Aurora, the period
from the seventeenth day of the month immediately preceding the month of such
Distribution Date to the sixteenth day of the month of such Distribution Date.
Primary Mortgage Insurance Policy: Mortgage guaranty insurance, if
any, on an individual Mortgage Loan, as evidenced by a policy or certificate.
Principal Amount Schedules: Not applicable.
Principal Only Certificate: Any Class 1-AP, Class 2-AP, Class 3-AP or
Class 4-AP Certificate.
Principal Prepayment: Any Mortgagor payment of principal (other than
a Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled
Due Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the applicable Servicing
Agreement.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The prospectus supplement dated July 26, 2000, relating
to the Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4, Class 1-A5, Class 1-A6,
Class 1-A7, Class 1-A8, Class 1-AP, Class 2-A1, Class 2-A2, Class 2-A3, Class
2-A4, Class 2-A5, Class 2A-6, Class 2A-7, Class 2-AP, Class 3-A1, Class 3-AP,
Class 3-AX, Class 4-A1, Class 4-AP, Class B1, Class B2, Class BX, Class B3 and
Class R Certificates.
Purchase Price: With respect to the repurchase of a Mortgage Loan
pursuant to this Agreement, an amount equal to the sum of (a) 100% of the
unpaid principal balance of such Mortgage Loan, (b) accrued interest thereon
at the Mortgage Rate, from the date as to which interest was last paid to (but
not including) the Due Date immediately preceding the related Distribution
Date and (c) any unreimbursed Servicing Advances with respect to such Mortgage
Loan. The Class 2-A5 Certificate Insurer shall be reimbursed from the Purchase
Price for any unpaid Reimbursement Amount due to the Class 2-A5 Certificate
Insurer with respect to such repurchased Mortgage Loan. The Master Servicer or
the applicable Servicer (or the Trustee, if applicable) shall be reimbursed
from the Purchase Price for any Mortgage Loan or related REO Property for any
Advances made with respect to such Mortgage Loan that are reimbursable to the
Master Servicer or such Servicer under this Agreement or the related Servicing
Agreement, as well as any unreimbursed Servicing Advances and accrued and
unpaid Master Servicing Fees or Servicing Fees, as applicable.
QIB: As defined in Section 3.03(c).
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Collection Account or the
Certificate Account and insuring a minimum, fixed or floating rate of return
on investments of such funds, which contract or surety bond shall:
(a) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency in one of its
two highest rating categories or, if such insurance company has no long-term
debt, whose claims paying ability is rated by each Rating Agency in one of its
two highest rating categories, and whose short-term debt is rated by each
Rating Agency in its highest rating category;
(b) provide that the Trustee may exercise all of the rights under
such contract or surety bond without the necessity of taking any action by any
other Person;
(c) provide that if at any time the then current credit standing of
the obligor under such guaranteed investment contract is such that continued
investment pursuant to such contract of funds would result in a downgrading of
any rating of the Certificates (which in the case of the Class 2-A5
Certificates is determined without regard to the Class 2-A5 Certificate
Insurance Policy), the Trustee shall terminate such contract without penalty
and be entitled to the return of all funds previously invested thereunder,
together with accrued interest thereon at the interest rate provided under
such contract to the date of delivery of such funds to the Trustee;
(d) provide that the Trustee's interest therein shall be transferable
to any successor trustee hereunder; and
(e) provide that the funds reinvested thereunder and accrued interest
thereon be returnable to the Collection Account or the Certificate Account, as
the case may be, not later than the Business Day prior to any Distribution
Date.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the related Mortgaged Properties are located,
duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided and whose claims paying
ability is rated by each Rating Agency in its highest rating category or whose
selection as an insurer will not adversely affect the rating of the
Certificates (which in the case of the Class 2-A5 Certificates is determined
without regard to the Class 2-A5 Certificate Insurance Policy).
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan, provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together
with interest thereon at the applicable Mortgage Rate net of the Master
Servicing Fee and the applicable Servicing Fee from the date as to which
interest was last paid through the end of the Due Period in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Trustee for deposit into the Certificate Account, and shall be treated as
a Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not lower than
the Net Mortgage Rate of the related Deleted Mortgage Loan; (iii) has a
remaining stated term to maturity not longer than, and not more than one year
shorter than, the remaining term to stated maturity of the related Deleted
Mortgage Loan; (iv) (A) has a Loan-to-Value Ratio as of the date of such
substitution of not greater than 80%, provided, however, that if the related
Deleted Mortgage Loan has a Loan-to-Value Ratio of greater than 80%, then the
Loan-to-Value Ratio of such substitute Mortgage Loan may be greater than 80%
but shall not be greater than the Loan-to-Value Ratio of the related Deleted
Mortgage Loan and (B) the addition of such substitute Mortgage Loan does not
increase the weighted average Loan-to-Value Ratio of the related Mortgage Pool
by more than 5%; (v) will comply with all of the representations and
warranties relating to Mortgage Loans set forth herein, as of the date as of
which such substitution occurs; (vi) is not a Cooperative Loan unless the
related Deleted Mortgage Loan was a Cooperative Loan; (vii) if applicable, has
the same index as and a margin not less than that of the related Deleted
Mortgage Loan; (viii) has not been delinquent for a period of more than 30
days more than once in the twelve months immediately preceding such date of
substitution; (ix) is covered by a Primary Mortgage Insurance Policy if the
related Deleted Mortgage Loan is so covered, and the Loan-to-Value Ratio of
such Mortgage Loan is greater than 80%; and (x) has a Credit Score not greater
than 20 points lower than the Credit Score of the related Deleted Mortgage
Loan, provided, however, that if the Deleted Mortgage Loan does not have a
Credit Score, then such substitute Mortgage Loan shall have a Credit Score
equal to or greater than 700. In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one mortgage
loan is substituted for one or more Deleted Mortgage Loans, then (a) the
Scheduled Principal Balance referred to in clause (i) above shall be
determined such that the aggregate Scheduled Principal Balance of all such
substitute Mortgage Loans shall not exceed the aggregate Scheduled Principal
Balance of all Deleted Mortgage Loans and (b) each of (1) the rate referred to
in clause (ii) above, (2) the remaining term to stated maturity referred to in
clause (iii) above, (3) the Loan-to-Value Ratio referred to in clause (iv)
above and (4) the Credit Score referred to in clause (x) above shall be
determined on a weighted average basis, provided that the final scheduled
maturity date of any Qualifying Substitute Mortgage Loan shall not exceed the
Final Scheduled Distribution Date of any Class of Certificates. Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan
pursuant to this Agreement, the party effecting such substitution shall
certify such qualification in writing to the Trustee.
Rating Agency: Each of S&P and Fitch.
Realized Loss: (a) with respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, plus (ii) interest at the applicable Net Mortgage
Rate from the date as to which interest was last paid up to the last day of
the month of such liquidation, minus (iii) Liquidation Proceeds received, net
of amounts that are reimbursable to the Master Servicer or any Servicer with
respect to such Mortgage Loan (other than Advances of principal and interest)
including expenses of liquidation, and (b) with respect to each Mortgage Loan
that has become the subject of a Deficient Valuation, the difference between
the unpaid principal balance of such Mortgage Loan immediately prior to such
Deficient Valuation and the unpaid principal balance of such Mortgage Loan as
reduced by the Deficient Valuation. In determining whether a Realized Loss on
a Liquidated Mortgage Loan is a Realized Loss of interest or principal,
Liquidation Proceeds shall be allocated, first, to payment of expenses related
to such Liquidated Mortgage Loan (including payment of any Retained Interest),
then to accrued unpaid interest and finally to reduce the principal balance of
the Mortgage Loan.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the related Cooperative Corporation and the originator of
such Mortgage Loan to establish the rights of such originator in the related
Cooperative Property.
Record Date: With respect to any Distribution Date and each Class of
Certificates other than any LIBOR Certificates, the close of business on the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs; with respect to any Distribution Date and any LIBOR
Certificates, the day immediately preceding the related Distribution Date.
Redemption Certificate: Any Class 2-A5 Certificate.
Reference Banks: As defined in Section 4.05.
Reimbursement Amount: As defined in Section 5.02(a)(vi).
Relevant UCC: The Uniform Commercial Code as in effect in the
applicable jurisdiction.
Relief Act Reduction: With respect to any Mortgage Loan as to which
there has been a reduction in the amount of interest collectible thereon as a
result of application of the Solders' and Sailors' Civil Relief Act of 1940,
as amended, any amount by which interest collectible on such Mortgage Loan for
the Due Date in the related Due Period is less than interest accrued thereon
for the applicable one-month period at the Mortgage Rate without giving effect
to such reduction.
REMIC: Each of the Lower Tier REMIC and the Upper Tier REMIC, as
described in the Preliminary Statement hereto.
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at sections
860A through 86OG of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the foregoing may be
in effect from time to time.
Remittance Date: The day in each month on which each Servicer is
required to remit payments to the account maintained by the Master Servicer,
as specified in the related Servicing Agreement.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Reserve Interest Rate: As defined in Section 4.05.
Residual Certificate: Any Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department and having direct responsibility for the administration of this
Agreement.
Restricted Certificate: Any Class B4, Class B5 or Class B6
Certificate.
Retained Interest: Interest in respect of each Pool 1 Mortgage Loan,
each Pool 2 Mortgage Loan and each Pool 4 Mortgage Loan, retained in each case
by the Retained Interest Holder at the Retained Interest Rate.
Retained Interest Holder: The Depositor or any successor in interest
by assignment or otherwise.
Retained Interest Rate: With respect to each Pool 1 Mortgage Loan,
each Pool 2 Mortgage Loan and each Pool 4 Mortgage Loan, the excess of the
Mortgage Rate of such Mortgage Loan over the applicable Trust Rate.
Rounding Account: The Class 2-A5 Rounding Account.
S&P: Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor in interest.
Scheduled Amount: Not applicable.
Scheduled Certificate: None.
Scheduled Component: None.
Scheduled Payment: Each scheduled payment of principal and interest
(or of interest only, if applicable) to be paid by the Mortgagor on a Mortgage
Loan, as reduced (except where otherwise specified herein) by the amount of
any related Debt Service Reduction (excluding all amounts of principal and
interest that were due on or before the Cut-off Date whenever received) and,
in the case of an REO Property, an amount equivalent to the Scheduled Payment
that would have been due on the related Mortgage Loan if such Mortgage Loan
had remained in existence. In the case of any bi-weekly payment Mortgage Loan,
all payments due on such Mortgage Loan during any Due Period shall be deemed
collectively to constitute the Scheduled Payment due on such Mortgage Loan in
such Due Period.
Scheduled Principal Amount: As to any Distribution Date and each
Mortgage Pool, an amount equal to the amount described in clause (i)(b) of the
definition of Senior Principal Distribution Amount.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as
of any Distribution Date, the principal balance of such Mortgage Loan at the
close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or before
the Due Date in the related Due Period, whether or not received from the
Mortgagor or advanced by any Servicer or the Master Servicer, and all amounts
allocable to unscheduled principal payments (including Principal Prepayments,
Net Liquidation Proceeds, Insurance Proceeds and condemnation proceeds, in
each case to the extent identified and applied prior to or during the
applicable Prepayment Period) and (ii) any REO Property as of any Distribution
Date, the Scheduled Principal Balance of the related Mortgage Loan on the Due
Date immediately preceding the date of acquisition of such REO Property by or
on behalf of the Trustee (reduced by any amount applied as a reduction of
principal on the Mortgage Loan). With respect to any Mortgage Loan and the
Cut-off Date, as specified in the Mortgage Loan Schedule.
Securities Administrator: ▇▇▇▇▇ Fargo Bank Minnesota, N.A., not in
its individual capacity but solely as Securities Administrator, or any
successor in interest, or if any successor Securities Administrator shall be
appointed as herein provided, then such successor Securities Administrator.
Securities Administrator Account: A separate account established
pursuant to Section 4.07.
Securities Administrator Fee: As to any Distribution Date, all income
and gain realized from the investment of funds in the Securities Administrator
Account during the period from and including the Deposit Date in the calendar
month immediately preceding the month in which such Distribution Date occurs,
to but excluding the Deposit Date relating to such Distribution Date.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Cooperative Shares and the
originator of the related Mortgage Note that defines the terms of the security
interest in such Cooperative Shares and the related Proprietary Lease.
Security Entitlement: The meaning specified in Section 8-102(a)(17)
of the UCC.
Seller: ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc.,
or any successor in interest.
Senior Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3, Class
1-A4, Class 1-A5, Class 1-A6, Class 1-A7, Class 1-A8, Class 1-AP, Class 2-A1,
Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2A-6, Class 2A-7, Class
2-AP, Class 3-A1, Class 3-AP, Class 3-AX, Class 4-A1, Class 4-AP or Class R
Certificate.
Senior Percentage: With respect to each Mortgage Pool and any
Distribution Date, the percentage equivalent of the fraction, the numerator of
which is the aggregate of the Certificate Principal Amounts of the Class 1-A1,
Class 1-A3, Class 1-A5, Class 1-A7 and Class R Certificates, in the case of
Pool 1, the Class 2-A1, Class 2-A3, Class 2-A5 and Class 2-A6 Certificates, in
the case of Pool 2, and the Class 3-A1 Certificates, in the case of Pool 3,
and the Class 4-A1 Certificates, in the case of Pool 4, immediately prior to
such Distribution Date and the denominator of which is the related Non-AP Pool
Balance for the immediately preceding Distribution Date.
Senior Prepayment Percentage: With respect to each Mortgage Pool and
any Distribution Date occurring during the five years beginning on the first
Distribution Date, 100%. With respect to each Mortgage Pool and for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date, the related Senior Percentage plus the following percentage
of the related Subordinate Percentage for such Distribution Date: for any
Distribution Date in the first year thereafter, 70%; for any Distribution Date
in the second year thereafter, 60%; for any Distribution Date in the third
year thereafter, 40%; for any Distribution Date in the fourth year thereafter,
20%; and for any subsequent Distribution Date, 0%; provided, however, that if
on any of the foregoing Distribution Dates the Senior Percentage for any
Mortgage Pool exceeds the initial Senior Percentage for such Mortgage Pool,
the Senior Prepayment Percentage for each Mortgage Pool on such Distribution
Date will once again equal 100% for such Distribution Date.
Notwithstanding the foregoing, no decrease in the Senior Prepayment
Percentage for any Mortgage Pool below the level in effect for the most recent
prior period set forth in the paragraph above shall be effective on any
Distribution Date if, as of the first Distribution Date as to which any such
decrease applies, (i) the average outstanding principal balance on such
Distribution Date and for the preceding five Distribution Dates of all
Mortgage Loans that were delinquent 60 days or more (including for this
purpose any Mortgage Loans in foreclosure and the Scheduled Payments that
would have been due on Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust Fund if the related Mortgage
Loan had remained in existence) is greater than or equal to 50% of the
aggregate Component Principal Amount of the related Components immediately
prior to such Distribution Date or (ii) cumulative Realized Losses with
respect to the Mortgage Loans in any Mortgage Pool exceed (a) with respect to
the Distribution Date on the fifth anniversary of the first Distribution Date,
30% of the related Original Group Subordinate Amount, (b) with respect to the
Distribution Date on the sixth anniversary of the first Distribution Date, 35%
of the related Original Group Subordinate Amount, (c) with respect to the
Distribution Date on the seventh anniversary of the first Distribution Date,
40% of the related Original Group Subordinate Amount, (d) with respect to the
Distribution Date on the eighth anniversary of the first Distribution Date,
45% of the related Original Group Subordinate Amount, and (e) with respect to
the Distribution Date on the ninth anniversary of the first Distribution Date
or thereafter, 50% of the related Original Group Subordinate Amount.
Senior Principal Distribution Amount: For each Certificate Group and
any Distribution Date, the sum of the following amounts:
(i) the sum of the product of (1) the related Senior
Percentage for such date and (2) the principal portion (multiplied by
the applicable Non-AP Percentage) of each Scheduled Payment (without
giving effect to any Debt Service Reduction occurring prior to the
Bankruptcy Coverage Termination Date), on each Mortgage Loan in the
related Mortgage Pool due during the related Due Period;
(ii) the product of (a) the related Senior Prepayment
Percentage for such date and (b) each of the following amounts
(multiplied by the applicable Non-AP Percentage): (1) each Principal
Prepayment on the Mortgage Loans in the related Mortgage Pool
collected during the related Prepayment Period, (2) each other
unscheduled collection, including Insurance Proceeds and Net
Liquidation Proceeds (other than with respect to any Mortgage Loan in
the related Mortgage Pool that was finally liquidated during the
related Prepayment Period) representing or allocable to recoveries of
principal received during the related Prepayment Period, and (3) the
principal portion of all proceeds of the purchase of any Mortgage
Loan in the related Mortgage Pool (or, in the case of a permitted
substitution, amounts representing a principal adjustment) actually
received by the Trustee during the related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable
to principal of any Mortgage Loan in the related Mortgage Pool that
was finally liquidated during the related Prepayment Period, the
lesser of (a) the related net Liquidation Proceeds allocable to
principal (multiplied by the applicable Non-AP Percentage) and (b)
the product of the related Senior Prepayment Percentage for such date
and the Scheduled Principal Balance (multiplied by the applicable
Non-AP Percentage) of such related Mortgage Loan at the time of
liquidation; and
(iv) any amounts described in clauses (i) through (iii) for
any previous Distribution Date that remain unpaid.
Servicer: Any Servicer that has entered into any of the Servicing
Agreements attached as Exhibit E hereto, or any successors in interest.
Initially, the Servicers are Aurora Loan Services Inc., Bank of America, N.A.,
Chase Manhattan Mortgage Corporation, Countrywide Home Loans, Inc., GreenPoint
Funding, ▇▇▇▇▇ Mortgage Corporation, Suntrust Mortgage, Inc. and ▇▇▇▇▇ Fargo
Home Mortgage, Inc.
Servicing Advances: Expenditures incurred by the Servicer in
connection with the liquidation or foreclosure of a Mortgage Loan which are
eligible for reimbursement under the Servicing Agreement.
Servicing Agreement: Each Servicing Agreement between a Servicer and
the Seller, dated as of July 1, 2000, attached hereto in Exhibit E.
Servicing Fee: The Servicing Fee specified in the applicable
Servicing Agreement (which shall include any Prepayment Interest Excess).
Servicing Fee Rate: With respect to any Servicer, as specified in the
applicable Servicing Agreement.
Servicing Officer: Any officer of the Master Servicer involved in or
responsible for the administration and servicing or master servicing of the
Mortgage Loans whose name appears on a list of servicing officers furnished by
the Master Servicer to the Trustee, as such list may from time to time be
amended.
Special Hazard Loss: With respect to the Mortgage Loans, (x) any
Realized Loss arising out of any direct physical loss or damage to a Mortgaged
Property which is caused by or results from any cause, exclusive of any loss
covered by a hazard policy or a flood insurance policy required to be
maintained in respect of such Mortgaged Property and any loss caused by or
resulting from (i) normal wear and tear, (ii) conversion or other dishonest
act on the part of the Trustee, the Master Servicer, the Servicer or any of
their agents or employees, or (iii) errors in design, faulty workmanship or
faulty materials, unless the collapse of the property or a part thereof
ensues, or (y) any Realized Loss arising from or related to the presence or
suspected presence of hazardous wastes, or hazardous substances on a Mortgaged
Property unless such loss is covered by a hazard policy or flood insurance
policy required to be maintained in respect of such Mortgaged Property, in any
case, as reported by the Servicer to the Master Servicer.
Special Hazard Loss Limit: As of the Cut-off Date, with respect to
Pool 1, $2,931,573; with respect to Pool 2, $7,529,638; with respect to Pool
3, $794,605; and with respect to Pool 4, $539,325; which amounts shall be
reduced from time to time to an amount equal on any Distribution Date to the
lesser of (a) the greatest of (i) 1% of the aggregate of the Scheduled
Principal Balances of the Mortgage Loans in the related Mortgage Pool; (ii)
twice the Scheduled Principal Balance of the Mortgage Loan in the related
Mortgage Pool having the highest Scheduled Principal Balance, and (iii) the
aggregate Scheduled Principal Balances of the Mortgage Loans in the related
Mortgage Pool secured by Mortgaged Properties located in the single California
postal zip code area having the highest aggregate Scheduled Principal Balance
of Mortgage Loans in the related Mortgage Pool of any such postal zip code
area and (b) the Special Hazard Loss Limit as of the Closing Date less the
amount, if any, of Special Hazard Losses incurred with respect to Mortgage
Loans in the related Mortgage Pool since the Closing Date.
Specified Rating: Not applicable.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Subordinate Certificate: Any Class B Certificate.
Subordinate Class Percentage: With respect to any Distribution Date
and any Class of Subordinate Certificates, the percentage obtained by dividing
the Class Principal Amount of such Class immediately prior to such
Distribution Date by the aggregate Certificate Principal Amount of all
Subordinate Certificates immediately prior to such Distribution Date.
Subordinate Component Percentage: With respect to each Component and
any Distribution Date, the percentage obtained by dividing the Component
Principal Amount of such Component immediately prior to such Distribution Date
by the aggregate Component Principal Amounts of all Components of the related
Certificate Group immediately prior to such Distribution Date.
Subordinate Percentage: With respect to each Mortgage Pool and any
Distribution Date, the difference between 100% and the related Senior
Percentage for such Distribution Date.
Subordinate Prepayment Percentage: With respect to each Mortgage Pool
and any Distribution Date, the difference between 100% and the related Senior
Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: For each Certificate Group
and any Distribution Date, the sum of the following:
(i) the sum of the product of (1) the related
Subordinate Percentage for such date and (2) the principal portion
(multiplied by the applicable Non-AP Percentage) of each Scheduled
Payment (without giving effect to any Debt Service Reduction
occurring prior to the Bankruptcy Coverage Termination Date) on each
Mortgage Loan in the related Mortgage Pool due during the related Due
Period;
(ii) the product of (a) the related Subordinate
Prepayment Percentage for such date and (b) each of the following
amounts (multiplied by the applicable Non-AP Percentage): (1) each
Principal Prepayment on the Mortgage Loans in the related Mortgage
Pool collected during the related Prepayment Period, (2) each other
unscheduled collection, including Insurance Proceeds and Net
Liquidation Proceeds (other than with respect to any Mortgage Loan in
the related Mortgage Pool that was finally liquidated during the
related Prepayment Period) representing or allocable to recoveries of
principal received during the related Prepayment Period, and (3) the
principal portion of all proceeds of the purchase of any Mortgage
Loan in the related Mortgage Pool (or, in the case of a permitted
substitution, amounts representing a principal adjustment) actually
received by the Trustee during the related Prepayment Period;
(iii) with respect to unscheduled recoveries allocable
to principal of any Mortgage Loan in the related Mortgage Pool that
was finally liquidated during the related Prepayment Period, the
related net Liquidation Proceeds allocable to principal (multiplied
by the applicable Non-AP Percentage) less any related amount paid
pursuant to subsection (iii) of the definition of Senior Principal
Distribution Amount for the related Certificate Group; and
(iv) any amounts described in clauses (i) through (iii) for
any previous Distribution Date that remain unpaid;
TAC Amount: Not applicable.
TAC Certificate: None.
TAC Component: None.
Tax Matters Person: The "tax matters person" as specified in the
REMIC Provisions.
Termination Price: As defined in Section 7.01 hereof.
Title Insurance Policy: A title insurance policy maintained with
respect to a Mortgage Loan.
Transfer Agreement: As defined in the Mortgage Loan Sale Agreement.
Transferor: Each seller of Mortgage Loans to ▇▇▇▇▇▇ Capital pursuant
to a Transfer Agreement.
Trust Fund: The corpus of the trust created pursuant to this
Agreement, consisting of the Mortgage Loans (other than any Retained
Interest), the assignment of the Depositor's rights under the Mortgage Loan
Sale Agreement, such amounts as shall from time to time be held in the
Collection Account, the Certificate Account, any Escrow Account, the
Securities Administrator Account, the Insurance Policies, any REO Property,
the Class 2-A5 Certificate Insurance Policy, the Class 2-A5 Reserve Fund, the
Class 2-A5 Rounding Account, the Class 2-A5 Policy Payments Account and the
other items referred to in, and conveyed to the Trustee under, Section
2.01(a).
Trust Rate: With respect to Pool 1 and each Pool 1 Mortgage Loan, the
sum of (i) 9.50%, (ii) the applicable Servicing Fee Rate and (iii) the premium
rate on any lender-provided mortgage insurance; with respect to Pool 2 and
each Pool 2 Mortgage Loan, the sum of (i) 8.25%, (ii) the applicable Servicing
Fee Rate and (iii) the premium rate on any lender-provided mortgage insurance;
and with respect to Pool 4 and each Pool 4 Mortgage Loan, the sum of (i)
8.25%, (ii) the applicable Servicing Fee Rate and (iii) the premium rate on
any lender-provided mortgage insurance.
Trustee: Bank One, National Association, not in its individual
capacity but solely as Trustee, or any successor in interest, or if any
successor trustee or any co-trustee shall be appointed as herein provided,
then such successor trustee and such co-trustee, as the case may be.
UCC: The Uniform Commercial Code as adopted in the State of New York.
Undercollateralization Distribution: Not applicable.
Undercollateralized Group: Not applicable.
Unscheduled Principal Amount: As to any Distribution Date and each
Mortgage Pool, the sum of the amounts described in clauses (ii)(b) and (iii)
(without regard to the reference in clause (iii) to the "Senior Prepayment
Percentage") of the definition of Senior Principal Distribution Amount.
Upper Tier REMIC: One of the two separate REMICs as described in the
Preliminary Statement hereto.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
99% of all Voting Interests shall be allocated to the Certificates other than
the Notional Certificates and 1% of all Voting Interests shall be allocated to
the Notional Certificates. Voting Interests allocated to the Notional
Certificates shall be allocated among the Classes of such Certificates (and
among the Certificates of each such Class) in proportion to their Class
Notional Amounts (or Notional Amounts). Voting Interests shall be allocated
among the other Classes of Certificates (and among the Certificates of each
such Class) in proportion to their Class Principal Amounts (or Certificate
Principal Amounts); provided, however, that on and after the date, if any, on
which the Class 2-A5 Certificate Insurer has paid a claim under the Class 2-A5
Certificate Insurance Policy in respect of the Class 2-A5 Certificates, the
Class 2-A5 Certificate Insurer shall be entitled to exercise all consent,
voting and related rights of such class.
Section 1.02. Calculations Respecting Mortgage Loans. Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan in the Trust Fund shall be made based upon current information as to the
terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans and payments to be made to the Securities
Administrator as supplied to the Securities Administrator by the Master
Servicer. The Securities Administrator shall not be required to recompute,
verify or recalculate the information supplied to it by the Master Servicer.
Article II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans. (a) Concurrently with the execution and delivery of this
Agreement, the Depositor does hereby transfer, assign, set over, deposit with
and otherwise convey to the Trustee, without recourse, subject to Sections
2.02, 2.04, 2.05 and 2.06, in trust, all the right, title and interest of the
Depositor in and to the Mortgage Loans. Such conveyance includes, without
limitation, the right to all distributions of principal and interest received
on or with respect to the Mortgage Loans on and after the Cut-off Date other
than, with respect to the Mortgage Loans, (i) any amounts representing
Retained Interest and (ii) payments of principal and interest due on or before
such date, and all such payments due after such date but received prior to
such date and intended by the related Mortgagors to be applied after such
date, together with all of the Depositor's right, title and interest in and to
the Collection Account and all amounts from time to time credited to and the
proceeds of the Collection Account, the Certificate Account and all amounts
from time to time credited to and the proceeds of the Certificate Account, any
Escrow Account established pursuant to Section 9.06 hereof and all amounts
from time to time credited to and the proceeds of any such Escrow Account, any
REO Property and the proceeds thereof, the Depositor's rights under any
Insurance Policies related to the Mortgage Loans, and the Depositor's security
interest in any collateral pledged to secure the Mortgage Loans, including the
Mortgaged Properties and any Additional Collateral, and any proceeds of the
foregoing, to have and to hold, in trust; and the Trustee declares that,
subject to the review provided for in Section 2.02, it has received and shall
hold the Trust Fund, as trustee, in trust, for the benefit and use of the
Holders of the Certificates and for the purposes and subject to the terms and
conditions set forth in this Agreement, and, concurrently with such receipt,
has caused to be executed, authenticated and delivered to or upon the order of
the Depositor, in exchange for the Trust Fund, Certificates in the authorized
denominations evidencing the entire ownership of the Trust Fund. In addition,
the Depositor has caused the Class 2-A5 Certificate Insurer to deliver the
Class 2-A5 Certificate Insurance Policy for the benefit of the Class 2-A5
Certificateholders and has made an initial deposit to the Class 2-A5 Reserve
Fund of $8,000.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sale Agreement (other than any right to receive
Retained Interest), including all rights of the Seller under the Servicing
Agreements to the extent assigned under the Mortgage Loan Sale Agreement, and
delegates its obligations thereunder. The Trustee hereby accepts such
assignment and delegation, and shall be entitled to exercise all rights of the
Depositor under the Mortgage Loan Sale Agreement as if, for such purpose, it
were the Depositor. The foregoing sale, transfer, assignment, set-over,
deposit and conveyance does not and is not intended to result in creation or
assumption by the Trustee of any obligation of the Depositor, the Seller, or
any other Person in connection with the Mortgage Loans or any other agreement
or instrument relating thereto except as specifically set forth herein.
(b) In connection with such transfer and assignment, the
Depositor does hereby deliver to, and deposit with, or cause to be delivered
to and deposited with, the Trustee, and/or any custodian acting on the
Trustee's behalf, if applicable, the following documents or instruments with
respect to each Mortgage Loan (each a "Mortgage File") so transferred and
assigned:
(i) with respect to each Mortgage Loan, the original Mortgage
Note endorsed without recourse in proper form to the order of the
Trustee, as shown in Exhibit B-4, or in blank (in each case, with all
necessary intervening endorsements as applicable);
(ii) the original of any guarantee executed in connection with
the Mortgage Note, assigned to the Trustee;
(iii) with respect to each Mortgage Loan other than a
Cooperative Loan, the original recorded Mortgage with evidence of
recording indicated thereon. If, in connection with any Mortgage
Loan, the Depositor cannot deliver the Mortgage with evidence of
recording thereon on or prior to the Closing Date because of a delay
caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost, the
Depositor shall deliver or cause to be delivered to the Trustee (or
its custodian), in the case of a delay due to recording, a true copy
of such Mortgage, pending delivery of the original thereof, together
with an Officer's Certificate of the Depositor certifying that the
copy of such Mortgage delivered to the Trustee (or its custodian) is
a true copy and that the original of such Mortgage has been forwarded
to the public recording office, or, in the case of a Mortgage that
has been lost, a copy thereof (certified as provided for under the
laws of the appropriate jurisdiction) and a written Opinion of
Counsel, memorandum of law or other written assurance acceptable to
the Trustee and the Depositor that an original recorded Mortgage is
not required to enforce the Trustee's interest in the Mortgage Loan;
(iv) The original of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loans, or,
as to any assumption, modification or substitution agreement which
cannot be delivered on or prior to the Closing Date because of a
delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for
recordation, a photocopy of such assumption, modification or
substitution agreement, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying
that the copy of such assumption, modification or substitution
agreement delivered to the Trustee (or its custodian) is a true copy
and that the original of such agreement has been forwarded to the
public recording office;
(v) with respect to each Non-MERS Mortgage Loan other than a
Cooperative Loan, the original Assignment of Mortgage for each
Mortgage Loan;
(vi) If applicable, such original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete
chain of assignment from the originator, or, in the case of an
Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Trustee that such original Intervening
Assignment is not required to enforce the Trustee's interest in the
Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or
certificate, if private mortgage guaranty insurance is required;
(viii) with respect to each Mortgage Loan other than a
Cooperative Loan, the original mortgagee title insurance policy or
attorney's opinion of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage or
equivalent executed in connection with the Mortgage or as to any
security agreement, chattel mortgage or their equivalent that cannot
be delivered on or prior to the Closing Date because of a delay
caused by the public recording office where such document has been
delivered for recordation, a photocopy of such document, pending
delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such
security agreement, chattel mortgage or their equivalent delivered to
the Trustee (or its custodian) is a true copy and that the original
of such document has been forwarded to the public recording office;
(x) with respect to any Cooperative Loan, the Cooperative Loan
Documents; and
(xi) in connection with any pledge of Additional Collateral, the
original additional collateral pledge and security agreement executed
in connection therewith, assigned to the Trustee.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
(c) (i) Assignments of Mortgage with respect to each Non-MERS
Mortgage Loan other than a Cooperative Loan shall be recorded; provided,
however, that such Assignments need not be recorded if, in the Opinion of
Counsel acceptable to the Trustee and the Rating Agencies, recording in such
states is not required to protect the Trustee's interest in the related
Non-MERS Mortgage Loans. Subject to the preceding sentence, as soon as
practicable after the Closing Date (but in no event more than 3 months
thereafter except to the extent delays are caused by the applicable recording
office), the Trustee, at the expense of the Depositor and with the cooperation
of the Servicer, shall cause to be properly recorded by the Servicer in each
public recording office where the related Mortgages are recorded each
Assignment of Mortgage referred to in subsection (b)(v) above with respect to
a Non-MERS Mortgage Loan. With respect to each Cooperative Loan, the Trustee,
at the expense of the Depositor and with the cooperation of the Servicer,
shall cause to be taken such actions as are necessary under applicable law in
order to perfect the interest of the Trustee in the related Mortgaged
Property.
(ii) With respect to each MERS Mortgage Loan, the Trustee, at
the expense of the Depositor and at the direction and with the
cooperation of the Servicer, shall cause to be taken such actions as
are necessary to cause the Trustee to be clearly identified as the
owner of each such Mortgage Loan on the records of MERS for purposes
of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS.
(d) In instances where a Title Insurance Policy is required to
be delivered to the Trustee, or to the applicable Custodian on behalf of the
Trustee, under clause (b)(viii) above and is not so delivered, the Depositor
will provide a copy of such Title Insurance Policy to the Trustee, or to the
applicable Custodian on behalf of the Trustee, as promptly as practicable
after the execution and delivery hereof, but in any case within 180 days of
the Closing Date.
(e) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
applicable Custodian on behalf of the Trustee, an Officer's Certificate which
shall include a statement to the effect that all amounts received in
connection with such prepayment that are required to be deposited in the
applicable Collection Account pursuant to Section 4.01 have been so deposited.
All original documents that are not delivered to the Trustee shall be held by
the Master Servicer or the applicable Servicer in trust for the benefit of the
Trustee and the Certificateholders.
Section 2.02. Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund. (a) The Trustee, by execution and delivery
hereof, acknowledges receipt of the Mortgage Files pertaining to the Mortgage
Loans listed on the Mortgage Loan Schedule, subject to review thereof by the
Trustee, or by the applicable Custodian on behalf of the Trustee, under this
Section 2.02. The Trustee, or the applicable Custodian on behalf of the
Trustee, will execute and deliver to the Depositor and the Master Servicer on
the Closing Date an Initial Certification in the form annexed annexed to the
applicable Custodial Agreement as Exhibit B-1.
(b) Within 45 days after the Closing Date, the applicable Custodian
will, on behalf of the Trustee and for the benefit of Holders of the
Certificates, review each Mortgage File to ascertain that all required
documents set forth in Section 2.01 have been received and appear on their
face to contain the requisite signatures by or on behalf of the respective
parties thereto, and shall deliver to the Depositor and the Master Servicer an
Interim Certification in the form annexed to the applicable Custodial
Agreement as Exhibit B-2 to the effect that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan prepaid in full or
any Mortgage Loan specifically identified in such certification as not covered
by such certification), (i) all of the applicable documents specified in
Section 2.01(b) are in its possession and (ii) such documents have been
reviewed by it and appear to relate to such Mortgage Loan. The Trustee, or the
applicable Custodian on behalf of the Trustee, shall make sure that the
documents are executed and endorsed, but shall be under no duty or obligation
to inspect, review or examine any such documents, instruments, certificates or
other papers to determine that the same are valid, binding, legally effective,
properly endorsed, genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded or are in recordable form or
that they are other than what they purport to be on their face. Neither the
Trustee nor any Custodian shall have any responsibility for verifying the
genuineness or the legal effectiveness of or authority for any signatures of
or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (b) above
the Trustee or the applicable Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear
regular on its face (i.e., is mutilated, damaged, defaced, torn or otherwise
physically altered) or appears to be unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule (each, a "Material Defect"), the
Trustee, or the applicable Custodian on behalf of the Trustee, shall promptly
identify the Mortgage Loan to which such Material Defect relates in the
Interim Certificate delivered to the Depositor or the Master Servicer (and to
the Trustee). Within 90 days of its receipt of such notice, the Depositor
shall be required to cure such Material Defect (and, in such event, the
Depositor shall provide the Trustee with an Officer's Certificate confirming
that such cure has been effected). If the Depositor does not so cure such
Material Defect, it shall, if a loss has been incurred with respect to such
Mortgage Loan that would, if such Mortgage Loan were not purchased from the
Trust Fund, constitute a Realized Loss, and such loss is attributable to the
failure of the Depositor to cure such Material Defect, repurchase the related
Mortgage Loan from the Trust Fund at the Purchase Price. A loss shall be
deemed to be attributable to the failure of the Depositor to cure a Material
Defect if, as determined by the Depositor, upon mutual agreement acting in
good faith, absent such Material Defect, such loss would not have been
incurred. Within the two year period following the Closing Date, the Depositor
may, in lieu of repurchasing a Mortgage Loan pursuant to this Section 2.02,
substitute for such Mortgage Loan a Qualifying Substitute Mortgage Loan
subject to the provisions of Section 2.05. The failure of the Trustee or the
applicable Custodian to give the notice contemplated herein within 45 days
after the Closing Date shall not affect or relieve the Depositor of its
obligation to repurchase any Mortgage Loan pursuant to this Section 2.02 or
any other Section of this Agreement requiring the repurchase of Mortgage Loans
from the Trust Fund.
(d) Within 180 days following the Closing Date, the Trustee, or the
applicable Custodian, shall deliver to the Depositor and the Master Servicer a
Final Certification substantially in the form annexed to the applicable
Custodial Agreement as Exhibit B-3 evidencing the completeness of the Mortgage
Files in its possession or control, with any exceptions noted thereto.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, the Certificateholders or the Class
2-A5 Certificate Insurer of any unsatisfied duty, claim or other liability on
any Mortgage Loan or to any Mortgagor.
(f) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and respective
certifications thereof as provided in this Section 2.02. The Custodian shall
make sure that the documents are executed and endorsed, but shall be under no
duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that the same are
valid, binding, legally effective, properly endorsed, genuine, enforceable or
appropriate for the represented purpose or that they have actually been
recorded or are in recordable form or that they are other than what they
purport to be on their face. The Custodian shall have no responsibility for
verifying the genuineness or the legal effectiveness of or authority for any
signatures of or on behalf of any party or endorser, or for determining
whether any documents listed in Section 2.01(a)(ii), (iv), (vii), (ix) or (xi)
are required.
Section 2.03. Representations and Warranties of the Depositor. (a)
The Depositor hereby represents and warrants to the Trustee, for the benefit
of Certificateholders, to the Class 2-A5 Certificate Insurer, to the
Securities Administrator and to the Master Servicer, as of the Closing Date or
such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation
and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter
into and perform its obligations under this Agreement, and to create
the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Depositor; neither the execution and delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will
conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties or the certificate of incorporation or bylaws of the
Depositor;
(iii) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any
other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by
the Trustee, the Securities Administrator and the Master Servicer,
constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of
the rights of creditors generally and (B) general principles of
equity regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened or likely to be asserted
against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by this Agreement or
(B) with respect to any other matter which in the judgment of the
Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially and adversely affect
it or its business, assets, operations or condition, financial or
otherwise, or adversely affect its ability to perform its obligations
under this Agreement; and
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good
and marketable title thereto, and had full right to transfer and sell
each Mortgage Loan to the Trustee free and clear, subject only to (1)
liens of current real property taxes and assessments not yet due and
payable and, if the related Mortgaged Property is a condominium unit,
any lien for common charges permitted by statute, (2) covenants,
conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage
acceptable to mortgage lending institutions in the area in which the
related Mortgaged Property is located and specifically referred to in
the lender's Title Insurance Policy or attorney's opinion of title
and abstract of title delivered to the originator of such Mortgage
Loan, and (3) such other matters to which like properties are
commonly subject which do not, individually or in the aggregate,
materially interfere with the benefits of the security intended to be
provided by the Mortgage, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and had
full right and authority, subject to no interest or participation of,
or agreement with, any other party, to sell and assign each Mortgage
Loan pursuant to this Agreement.
(b) The representations and warranties of each Transferor with
respect to the related Mortgage Loans in the applicable Transfer Agreement,
which have been assigned to the Trustee hereunder, were made as of the date
specified in the applicable Transfer Agreement (or underlying agreement, if
such Transfer Agreement is in the form of an assignment of a prior agreement).
To the extent that any fact, condition or event with respect to a Mortgage
Loan constitutes a breach of both (i) a representation or warranty of the
applicable Transferor under the applicable Transfer Agreement and (ii) a
representation or warranty of ▇▇▇▇▇▇ Capital under the Mortgage Loan Sale
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right to enforce the obligations of the applicable
Transferor under any applicable representation or warranty made by it. The
Trustee acknowledges that the representations and warranties of ▇▇▇▇▇▇ Capital
in Section 1.04(b) of the Mortgage Loan Sale Agreement are applicable only to
facts or conditions that arise or events that occur subsequent to the date as
of which the representations and warranties with respect to the related
Mortgage Loans in the Transfer Agreements were made, and which do not
constitute a breach of any representation or warranty made by the applicable
Transferor in the applicable Transfer Agreement. The Trustee acknowledges that
▇▇▇▇▇▇ Capital shall have no obligation or liability with respect to any
breach of a representation or warranty made by it with respect to the Mortgage
Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by the applicable
Transferor in the applicable Transfer Agreement, without regard to whether
such Transferor fulfills its contractual obligations in respect of such
representation or warranty. The Trustee further acknowledges that the
Depositor shall have no obligation or liability with respect to any breach of
any representation or warranty with respect to the Mortgage Loans (except as
set forth in Section 2.03(a)(vi)) under any circumstances.
Section 2.04. Discovery of Breach. It is understood and agreed that
the representations and warranties (i) set forth in Section 2.03, (ii) of
▇▇▇▇▇▇ Capital set forth in the Mortgage Loan Sale Agreement and assigned to
the Trustee by the Depositor hereunder and (iii) of each Transferor, assigned
by ▇▇▇▇▇▇ Capital to the Depositor pursuant to the Mortgage Loan Sale
Agreement and assigned to the Trustee by the Depositor hereunder shall each
survive delivery of the Mortgage Files and the Assignment of Mortgage of each
Mortgage Loan to the Trustee and shall continue throughout the term of this
Agreement. Upon discovery by either the Depositor, the Securities
Administrator, the Master Servicer, the Trustee or the Class 2-A5 Certificate
Insurer of a breach of any of such representations and warranties that
adversely and materially affects the value of the related Mortgage Loan, the
party discovering such breach shall give prompt written notice to the other
parties. Within 90 days of the discovery of a breach of any representation or
warranty given to the Trustee and the Class 2-A5 Certificate Insurer by the
Depositor or given by ▇▇▇▇▇▇ Capital and assigned to the Trustee, the
Depositor or ▇▇▇▇▇▇ Capital, as applicable, shall either (a) cure such breach
in all material respects, (b) repurchase such Mortgage Loan or any property
acquired in respect thereof from the Trustee at the Purchase Price or (c)
within the two year period following the Closing Date, substitute a Qualifying
Substitute Mortgage Loan for the affected Mortgage Loan. In the event of
discovery of a breach of any representation and warranty of any Transferor
assigned to the Trustee, the Trustee may enforce its rights under the
applicable Transfer Agreement for the benefit of Certificateholders.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.
(a) With respect to any Mortgage Loan repurchased by the Depositor pursuant to
this Agreement, by ▇▇▇▇▇▇ Capital pursuant to the Mortgage Loan Sale Agreement
or by any Transferor pursuant to the applicable Transfer Agreement, the
principal portion of the funds received by the Trustee in respect of such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
shall be deposited in the Collection Account. The Trustee, upon receipt of the
full amount of the Purchase Price for a Deleted Mortgage Loan, or upon receipt
of the Mortgage File for a Qualifying Substitute Mortgage Loan substituted for
a Deleted Mortgage Loan (and any applicable Substitution Amount), shall
release or cause to be released and reassign to the Depositor, ▇▇▇▇▇▇ Capital
or the applicable Transferor, as applicable, the related Mortgage File for the
Deleted Mortgage Loan and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, representation or
warranty, as shall be necessary to vest in such party or its designee or
assignee title to any Deleted Mortgage Loan released pursuant hereto, free and
clear of all security interests, liens and other encumbrances created by this
Agreement, which instruments shall be prepared by the Trustee (or its
custodian), and the Trustee shall have no further responsibility with respect
to the Mortgage File relating to such Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
applicable Transferor or ▇▇▇▇▇▇ Capital, as applicable, must deliver to the
Trustee (or its custodian) the Mortgage File for the Qualifying Substitute
Mortgage Loan containing the documents set forth in Section 2.01(b) along with
a written certification certifying as to the delivery of such Mortgage File
and containing the granting language set forth in Section 2.01(a); and (ii)
the Depositor will be deemed to have made, with respect to such Qualified
Substitute Mortgage Loan, each of the representations and warranties made by
it with respect to the related Deleted Mortgage Loan. As soon as practicable
after the delivery of any Qualifying Substitute Mortgage Loan hereunder, the
Trustee, at the expense of the Depositor and at the direction and with the
cooperation of the 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 Servicer if required pursuant to Section
2.01(c)(i), or (ii) with respect to a Qualifying Substitute Mortgage Loan that
is a MERS Mortgage Loan, cause to be taken such actions as are necessary to
cause the Trustee to be clearly identified as the owner of each such Mortgage
Loan on the records of MERS if required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding any other provision of this Agreement, the right
to substitute Mortgage Loans pursuant to this Article II shall be subject to
the additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee has
received an Opinion of Counsel (at the expense of the party seeking to make
the substitution) that, under current law, such substitution will not (A)
affect adversely the status of any REMIC established hereunder as a REMIC, or
of the related "regular interests" as "regular interests" in any such REMIC,
or (B) cause any such REMIC to engage in a "prohibited transaction" or
prohibited contribution pursuant to the REMIC Provisions.
Section 2.06. Grant Clause. It is intended that the conveyance of the
Depositor's right, title and interest in and to property constituting the
Trust Fund pursuant to this Agreement shall constitute, and shall be construed
as, a sale of such property and not a grant of a security interest to secure a
loan. However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) the Depositor hereby
grants to the Trustee for the benefit of the Holders of the Certificates and
the Class 2-A5 Certificate Insurer a first priority security interest in all
of the Depositor's right, title and interest in, to and under, whether now
owned or hereafter acquired, the Trust Fund and all proceeds of any and all
property constituting the Trust Fund to secure payment of the Certificates;
and (3) this Agreement shall constitute a security agreement under applicable
law. If such conveyance is deemed to be in respect of a loan and the Trust
created by this Agreement terminates prior to the satisfaction of the claims
of any Person holding any Certificate, the security interest created hereby
shall continue in full force and effect and the Trustee shall be deemed to be
the collateral agent for the benefit of such Person, and all proceeds shall be
distributed as herein provided.
Article III
THE CERTIFICATES
Section 3.01. The Certificates. (a) The Certificates shall be
issuable in registered form only and shall be securities governed by Article 8
of the New York Uniform Commercial Code. The Book-Entry Certificates will be
evidenced by one or more certificates, beneficial ownership of which will be
held in the dollar denominations in Certificate Principal Amount or Notional
Principal Amount, as applicable, or in the Percentage Interests, specified
herein. Each Class of Book-Entry Certificates shall be issued in the minimum
denominations in Certificate Principal Amount (or Notional Amount) or
Percentage Interest specified in the Preliminary Statement hereto and in
integral multiples of $1 or 5% (in the case of Certificates issued in
Percentage Interests) in excess thereof. Each Class of Non-Book Entry
Certificates other than the Residual Certificate shall be issued in
definitive, fully registered form in the minimum denominations in Certificate
Principal Amount (or Notional Amount) specified in the Preliminary Statement
hereto and in integral multiples of $1 in excess thereof. The Residual
Certificate shall be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100% of
the Percentage Interest of such Class. The Certificates may be issued in the
form of typewritten certificates. One Certificate of each Class of
Certificates other than any Class of Residual Certificates may be issued in
any denomination in excess of the minimum denomination.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of
the Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee or
the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
Section 3.02. Registration. The Trustee is hereby appointed, and
hereby accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the
transfer of Certificates (the "Certificate Register"). The Trustee may appoint
a bank or trust company to act as Certificate Registrar. A registration book
shall be maintained for the Certificates collectively. The Certificate
Registrar may resign or be discharged or removed and a new successor may be
appointed in accordance with the procedures and requirements set forth in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Master Servicer, any bank or trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided, however, that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. (a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
as the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the
Depositor or the Placement Agent, an affiliate (as defined in Rule
405 under the ▇▇▇▇ ▇▇▇) of the Depositor or the Placement Agent or
(y) being made to a "qualified institutional buyer" (a "QIB") as
defined in Rule 144A under the Securities Act of 1933, as amended
(the "Act") by a transferor that has provided the Trustee with a
certificate in the form of Exhibit F hereto; and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the
Act by a transferor who furnishes to the Trustee a letter of the
transferee substantially in the form of Exhibit G hereto.
(d) (i) No transfer of an ERISA-Restricted Certificate in the form of
a Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate substantially in the form of Exhibit H hereto from
such transferee or (B) an Opinion of Counsel satisfactory to the Trustee and
the Depositor to the effect that the purchase and holding of such a
Certificate will not constitute or result in the assets of the Trust Fund
being deemed to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will not subject the
Trustee or the Depositor to any obligation in addition to those undertaken in
the Agreement; provided, however, that the Trustee will not require such
certificate or opinion in the event that, as a result of a change of law or
otherwise, counsel satisfactory to the Trustee has rendered an opinion to the
effect that the purchase and holding of an ERISA-Restricted Certificate by a
Plan or a Person that is purchasing or holding such a Certificate with the
assets of a Plan will not constitute or result in a prohibited transaction
under ERISA or Section 4975 of the Code. The preparation and delivery of the
certificate and opinions referred to above shall not be an expense of the
Trust Fund, the Trustee or the Depositor. Notwithstanding the foregoing, no
opinion or certificate shall be required for the initial issuance of the
ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to (i) a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person is (A) not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Trustee with an effective Internal
Revenue Service Form 4224 or successor form at the time and in the manner
required by the Code (any such person who is not covered by clause (A) or (B)
above is referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale
or other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto
as Exhibit D-1 representing and warranting, among other things, that such
transferee is (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 and the Trustee satisfactory in
form and substance to the Depositor, that such proposed transferee or, if the
proposed transferee is an agent or nominee, the proposed beneficial owner, is
not a Disqualified Organization, agent or nominee thereof, or Non-permitted
Foreign Holder. Notwithstanding the registration in the Certificate Register
of any transfer, sale, or other disposition of a Residual Certificate to a
Disqualified Organization, an agent or nominee thereof, or Non-permitted
Foreign Holder, such registration shall be deemed to be of no legal force or
effect whatsoever and such Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to,
the receipt of distributions on such Residual Certificate. The Trustee shall
not be under any liability to any person for any registration or transfer of a
Residual Certificate to a Disqualified Organization, agent or nominee thereof,
or Non-permitted Foreign Holder or for the maturity of any payments due on
such Residual Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of the Agreement, so long as
the transfer was effected in accordance with this Section 3.03(f), unless the
Trustee shall have actual knowledge at the time of such transfer or the time
of such payment or other action that the transferee is a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder. The
Trustee shall be entitled to recover from any Holder of a Residual Certificate
that was a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder at the time it became a Holder or any subsequent
time it became a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder, all payments made on such Residual Certificate
at and after either such times (and all costs and expenses, including but not
limited to attorneys' fees, incurred in connection therewith). Any payment
(not including any such costs and expenses) so recovered by the Trustee shall
be paid and delivered to the last preceding Holder of such Residual
Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of transfer of a Residual Certificate that
is in fact not permitted by this Section 3.03(f), for making any payment due
on such Certificate to the registered Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered upon receipt of the affidavit described in
the preceding paragraph of this Section 3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this section.
Section 3.04. Cancellation of Certificates. Any Certificate
surrendered for registration of transfer or exchange shall be cancelled and
retained in accordance with normal retention policies with respect to
cancelled certificates maintained by the Trustee or the Certificate Registrar.
Section 3.05. Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or
(ii) the Trustee or any Authenticating Agent receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Depositor and any Authenticating Agent that such
destroyed, lost or stolen Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee or the Authenticating Agent)
connected therewith. Any replacement Certificate issued pursuant to this
Section 3.05 shall constitute complete and indefeasible evidence of ownership
in the applicable Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Subject to the provisions of
Section 3.09 with respect to Book-Entry Certificates, the Depositor, the
Master Servicer, the Trustee, the Certificate Registrar and any agent of any
of them may treat the Person in whose name any Certificate is registered upon
the books of the Certificate Registrar as the owner of such Certificate for
the purpose of receiving distributions pursuant to Sections 5.01 and 5.02 and
for all other purposes whatsoever, and neither the Depositor, the Master
Servicer, the Trustee, the Certificate Registrar nor any agent of any of them
shall be affected by notice to the contrary.
Section 3.07. Temporary Certificates. (a) Pending the preparation of
definitive Certificates, upon the order of the Depositor, the Trustee shall
execute and shall authenticate and deliver temporary Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08. Appointment of Paying Agent. The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to the Certificateholders. All funds remitted by the
Trustee to any such Paying Agent for the purpose of making distributions shall
be paid to Certificateholders on each Distribution Date and any amounts not so
paid shall be returned on such Distribution Date to the Trustee. If the Paying
Agent is not the Trustee, the Trustee shall cause to be remitted to the Paying
Agent on or before the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers.
Section 3.09. Book-Entry Certificates. (a) Each Class of Book-Entry
Certificates, upon original issuance, shall be issued in the form of one or
more typewritten Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Depositor. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full force
and effect;
(ii) the Depositor, the Securities Administrator, the Master
Servicer, the Paying Agent, the Registrar and the Trustee may deal
with the Clearing Agency for all purposes (including the making of
distributions on the Book-Entry Certificates) as the authorized
representatives of the Certificate Owners and the Clearing Agency
shall be responsible for crediting the amount of such distributions
to the accounts of such Persons entitled thereto, in accordance with
the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions
of this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Unless and until Definitive Certificates are
issued pursuant to Section 3.09(c), the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on
the Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer's Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Transferor nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable, with respect to such
Definitive Certificates and the Trustee shall recognize the holders of the
Definitive Certificates as Certificateholders hereunder.
Article IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. Collection Account. (a) On the Closing Date, the Master
Servicer shall open and shall thereafter maintain an account held in trust
(the "Collection Account"), entitled "Aurora Loan Services Inc., as Master
Servicer, in trust for the benefit of the Holders of Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2000-3." The
Collection Account shall relate solely to the Certificates issued by the Trust
Fund hereunder, and funds in such Collection Account shall not be commingled
with any other monies.
(b) The Collection Account shall be an Eligible Account. If an
existing Collection Account ceases to be an Eligible Account, the Master
Servicer shall establish a new Collection Account that is an Eligible Account
within 30 days and transfer all funds on deposit in such existing Collection
Account into such new Collection Account.
(c) The Master Servicer shall give to the Trustee prior written
notice of the name and address of the depository institution at which the
Collection Account is maintained and the account number of such Collection
Account. On each Master Servicer Remittance Date, the entire amount on deposit
in the Collection Account (subject to permitted withdrawals set forth in
Section 4.02), excluding such amounts not included in the Available
Distribution Amount for such Distribution Date pursuant to clauses (a) through
(g) of paragraph (1) of the definition thereof, shall be remitted to the
Securities Administrator for deposit into the Securities Administrator Account
by wire transfer in immediately available funds. The Master Servicer, at its
option, may choose to make daily remittances from the Collection Account to
the Securities Administrator for deposit into the Securities Administrator
Account.
(d) The Master Servicer shall deposit or cause to be deposited into
the Collection Account, no later than the Business Day following the Closing
Date, any amounts representing Scheduled Payments on the Mortgage Loans due
after the Cut-off Date and received by the Master Servicer on or before the
Closing Date. Thereafter, the Master Servicer shall deposit or cause to be
deposited in the Collection Account on the applicable Remittance Date the
following amounts received or payments made by it (other than in respect of
principal of and interest on the Mortgage Loans due on or before the Cut-Off
Date):
(i) all payments on account of principal, including Principal
Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
(other than payments due prior to the Cut-off Date), net of the
premium rate on any related Pool PMI Policy, if any, the Servicing
Fee and Master Servicing Fee with respect to each such Mortgage Loan,
but only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections 5.04
and 9.21;
(iii) any unscheduled payment or other recovery with respect to
a Mortgage Loan not otherwise specified in this paragraph (d),
including all Net Liquidation Proceeds with respect to the Mortgage
Loans and REO Property, and all amounts received in connection with
the operation of any REO Property, net of any unpaid Servicing Fees
and Master Servicing Fees with respect to such Mortgage Loans, but
only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections 5.04
and 9.21; provided that if a Servicer is also the Retained Interest
Holder with respect to any Mortgage Loan, payments on account of
interest on the Mortgage Loans as to which such Servicer is the
Retained Interest Holder may also be made net of the Retained
Interest with respect to each such Mortgage Loan.
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or any Servicer
pursuant to Section 5.04 or the applicable Servicing Agreement; and
(vi) all proceeds of any Mortgage Loan purchased by any Person.
(e) Funds in the Collection Account may be invested in Eligible
Investments (selected by and at the written direction of the Master Servicer)
which shall mature not later than the earlier of (a) the Master Servicer
Remittance Date (except that if such Eligible Investment is an obligation of
the Trustee or the Paying Agent, if other than the Trustee, and such
Collection Account is maintained with the Trustee or the Paying Agent, if
other than the Trustee, then such Eligible Investment shall mature not later
than such applicable Distribution Date) or (b) the day on which the funds in
such Collection Account are required to be remitted to the Securities
Administrator for deposit into the Securities Administrator Account, and any
such Eligible Investment shall not be sold or disposed of prior to its
maturity. All such Eligible Investments shall be made in the name of the
Trustee (in its capacity as such) or its nominee. All income and gain realized
from any such investment shall be for the benefit of the Master Servicer and
shall be subject to its withdrawal on order from time to time, subject to
Section 5.04, and shall not be part of the Trust Fund. The amount of any
losses incurred in respect of any such investments shall be deposited in such
Collection Account by the Master Servicer out of its own funds, without any
right of reimbursement therefor, immediately as realized. The foregoing
requirements for deposit in the Collection Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Collection Account and payments in the
nature of late payment charges or assumption fees need not be deposited by the
Master Servicer in the Collection Account and may be retained by the Master
Servicer or the applicable Servicer as additional servicing compensation. If
the Master Servicer deposits in the Collection Account any amount not required
to be deposited therein, it may at any time withdraw such amount from such
Collection Account. In the event the Master Servicer does not provide written
direction to the Trustee pursuant to this Section, all funds on deposit in the
Collection Account shall remain uninvested.
Section 4.02. Application of Funds in the Collection Account. The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to reimburse itself or any Servicer for Advances made by it
or by such Servicer pursuant to Section 5.04 or the applicable
Servicing Agreement; the Master Servicer's right to reimburse itself
pursuant to this subclause (i) is limited to amounts received on or
in respect of particular Mortgage Loans (including, for this purpose,
Liquidation Proceeds and amounts representing Insurance Proceeds with
respect to the property subject to the related Mortgage) which
represent late recoveries (net of the applicable Servicing Fee and
the Master Servicing Fee) of payments of principal or interest
respecting which any such Advance was made, it being understood, in
the case of any such reimbursement, that the Master Servicer's or
Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(ii) to reimburse itself or any Servicer for any Servicing
Advances made by it or by such Servicer that it determines in good
faith will not be recoverable from amounts representing late
recoveries of payments of principal or interest respecting the
particular Mortgage Loan as to which such Servicing Advance was made
or from Liquidation Proceeds or Insurance Proceeds with respect to
such Mortgage Loan, it being understood, in the case of any such
reimbursement, that such Master Servicer's or Servicer's right
thereto shall be prior to the rights of the Certificateholders;
(iii) to reimburse itself or any Servicer from Liquidation
Proceeds for Liquidation Expenses and for amounts expended by it
pursuant to Sections 9.20 and 9.22(a) or the applicable Servicing
Agreement in good faith in connection with the restoration of damaged
property and, to the extent that Liquidation Proceeds after such
reimbursement exceed the unpaid principal balance of the related
Mortgage Loan, together with accrued and unpaid interest thereon at
the applicable Mortgage Rate less the applicable Servicing Fee and
the Master Servicing Fee for such Mortgage Loan to the Due Date next
succeeding the date of its receipt of such Liquidation Proceeds, to
pay to itself out of such excess the amount of any unpaid assumption
fees, late payment charges or other Mortgagor charges on the related
Mortgage Loan and to retain any excess remaining thereafter as
additional servicing compensation, it being understood, in the case
of any such reimbursement or payment, that such Master Servicer's or
Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(iv) to reimburse itself or any Servicer for expenses incurred
by and recoverable by or reimbursable to it or such Servicer pursuant
to Section 9.04, 9.06, 9.16 or 9.22(a) or pursuant to the applicable
Servicing Agreement, and to reimburse itself for any expenses
reimbursable to it pursuant to Section 10.01(c);
(v) to pay to the applicable Person, with respect to each
Mortgage Loan or REO Property acquired in respect thereof that has
been repurchased by such Person pursuant to this Agreement, all
amounts received thereon and not distributed on the date on which the
related repurchase was effected;
(vi) subject to Section 5.05, to pay to itself income earned on
the investment of funds deposited in the Collection Account;
(vii) to make payments to the Securities Administrator for
deposit into the Securities Administrator Account in the amounts and
in the manner provided for in Section 4.07;
(viii) to make distributions of the Retained Interest to the
Retained Interest Holder on each Distribution Date (other than any
Retained Interest not deposited into the Collection Account in
accordance with Section 4.01(d)(iii));
(ix) to make payment to itself, the Trustee, the Securities
Administrator and others pursuant to any provision of this Agreement;
(x) to withdraw funds deposited in error in the Collection
Account;
(xi) to clear and terminate any Collection Account pursuant to
Section 7.02;
(xii) to reimburse a successor Master Servicer (solely in its
capacity as successor Master Servicer), for any fee or advance
occasioned by a termination of the Master Servicer, and the
assumption of such duties by the Trustee or a successor Master
Servicer appointed by the Trustee pursuant to Section 6.14, in each
case to the extent not reimbursed by the terminated Master Servicer,
it being understood, in the case of any such reimbursement or
payment, that the right of the Master Servicer or the Trustee thereto
shall be prior to the rights of the Certificateholders; and
(xiii) to reimburse any Servicer for such amounts as are due
thereto under the applicable Servicing Agreement and have not been
retained by or paid to such Servicer to the extent provided in such
Servicing Agreement.
Each Servicer shall be entitled to retain as additional servicing
compensation any Prepayment Penalty Amounts or Prepayment Interest Excess.
In connection with withdrawals pursuant to subclauses (i), (iii),
(iv) and (vi) above, the Master Servicer's or Servicer's entitlement thereto
is limited to collections or other recoveries on the related Mortgage Loan.
The Master Servicer shall therefore keep and maintain a separate accounting
for each Mortgage Loan it master services for the purpose of justifying any
withdrawal from the Collection Account it maintains pursuant to such subclause
(i), (iii), (iv) and (vi).
Section 4.03. Reports to Certificateholders. (a) On each Distribution
Date, the Securities Administrator shall have prepared (based solely on
information provided by the Master Servicer) and shall make available to the
Trustee, each Certificateholder and the Class 2-A5 Certificate Insurer a
written report setting forth the following information, by Mortgage Pool and
Certificate Group (on the basis of Mortgage Loan level information obtained
from the Servicers):
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates, other
than any Class of Notional Certificates, and in respect of each
Component, to the extent applicable, allocable to principal on the
Mortgage Loans, including Liquidation Proceeds and Insurance
Proceeds, stating separately the amount attributable to scheduled
principal payments and unscheduled payments in the nature of
principal in each Mortgage Pool;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates, other
than any Class of Principal Only Certificates, allocable to interest
on the Mortgage Loans, including any Accrual Amount added to the
Class Principal Amount of any Class of Accrual Certificates;
(iii) the amount, if any, of any distribution to the Holders of
a Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be
made by or on behalf of the Master Servicer or any Servicer (or the
Trustee) with respect to such Distribution Date, (B) the aggregate
amount of such Advances actually made, and (C) the amount, if any, by
which (A) above exceeds (B) above;
(v) the Aggregate Principal Balance of the Mortgage Loans and
the Non-AP Pool Balance of each Mortgage Pool for such Distribution
Date, after giving effect to payments allocated to principal reported
under clause (i) above;
(vi) the Class Principal Amount (or Class Notional Amount) of
each Class of Certificates, to the extent applicable and the
Principal Component Amount of each Component, as of such Distribution
Date after giving effect to payments allocated to principal reported
under clause (i) above (and to the addition of any Accrual Amount in
the case of any Class of Accrual Certificates), separately
identifying any reduction of any of the foregoing Certificate
Principal Amounts due to Realized Losses:
(vii) any Realized Losses realized with respect to the Mortgage
Loans (x) in the applicable Prepayment Period and (y) in the
aggregate since the Cut-off Date, stating separately the amount of
Special Hazard Losses, Fraud Losses and Bankruptcy Losses and the
aggregate amount of such Realized Losses, and the remaining Special
Hazard Loss Amount, Fraud Loss Amount and Bankruptcy Loss Amount;
(viii) the amount of the Master Servicing Fees, Servicing Fees
and Securities Administrator Fee paid during the Due Period to which
such distribution relates;
(ix) the number and aggregate Scheduled Principal Balance of
Mortgage Loans, as reported to the Securities Administrator by the
Master Servicer, (a) remaining outstanding (b) delinquent one month,
(c) delinquent two months, (d) delinquent three or more months, and
(e) as to which foreclosure proceedings have been commenced as of the
close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(x) the deemed principal balance of each REO Property as of the
close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(xi) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the principal balance
of such Mortgage Loan and the number of such Mortgage Loans as of the
close of business on the Distribution Date in such preceding month;
(xii) with respect to substitution of Mortgage Loans in the
preceding calendar month, the Scheduled Principal Balance of each
Deleted Mortgage Loan, and of each Qualifying Substitute Mortgage
Loan;
(xiii) the aggregate outstanding Interest Shortfalls and Net
Prepayment Interest Shortfalls, if any, for each Class of
Certificates, after giving effect to the distribution made on such
Distribution Date;
(xiv) the Certificate Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates;
(xv) if applicable, the amount of any shortfall (i.e., the
difference between the aggregate amounts of principal and interest
which Certificateholders would have received if there were sufficient
available amounts in the Certificate Account and the amounts actually
distributed);
(xvi) any other "loan-level" information for any Mortgage Loans
that are delinquent three or more months and any REO Property held by
the Trust that is reported by the Master Servicer to the Trustee;
(xvii) any Insured Payments made in respect of Class 2-A5
Guaranteed Distributions paid under the Class 2-A5 Certificate
Insurance Policy; and
(xviii) any amounts withdrawn from the Class 2-A5 Reserve Fund
pursuant to Section 4.06 for that Distribution Date.
In the case of information furnished pursuant to subclauses (i), (ii)
and (viii) above, the amounts shall be expressed as a dollar amount per $1,000
of original principal amount of Certificates.
The foregoing information and reports shall be prepared and
determined by the Securities Administrator based solely on Mortgage Loan data
provided to the Securities Administrator by the Master Servicer in a
mutually-agreeable format no later than five Business Days prior to the
Distribution Date. In preparing or furnishing the Mortgage Loan data to the
Trustee, the Master Servicer shall be entitled to rely conclusively on the
accuracy of the information or data regarding the Mortgage Loans and the
related REO Property that has been provided to the Master Servicer by each
Servicer, and the Master Servicer shall not be obligated to verify, recompute,
reconcile or recalculate any such information or data.
The Securities Administrator may make the foregoing information (and,
at its option, any additional files containing the same information in an
alternative format) available each month to Certificateholders via the
Security Administrator's internet website which is located at
"▇▇▇.▇▇▇▇▇▇▇.▇▇▇" and its fax-on-demand service (which is accessible by
calling (▇▇▇) ▇▇▇-▇▇▇▇).
On each Distribution Date, the Securities Administrator shall also
provide or make available to the Depositor a copy of the above-described
written report, to the following address: Mortgage Finance Group, ▇▇▇▇▇▇
Brothers Inc., Three World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or to such other address as the
Depositor may designate.
(b) Upon the reasonable advance written request of any
Certificateholder that is a savings and loan, bank or insurance company, which
request, if received by the Trustee, will be promptly forwarded to the Master
Servicer, the Master Servicer shall provide, or cause to be provided, (or, to
the extent that such information or documentation is not required to be
provided by a Servicer under the applicable Servicing Agreement, shall use
reasonable efforts to obtain such information and documentation from such
Servicer, and provide) to such Certificateholder such reports and access to
information and documentation regarding the Mortgage Loans as such
Certificateholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to investment in the Certificates;
provided, however, that the Master Servicer shall be entitled to be reimbursed
by such Certificateholder for such Master Servicer's actual expenses incurred
in providing such reports and access.
(c) Upon request, within 90 days, or such shorter period as may be
required by statute or regulation, after the end of each calendar year, the
Securities Administrator shall have prepared and the Trustee shall send to
each Person who at any time during the calendar year was a Certificateholder
of record, and make available to Certificate Owners (identified as such by the
Clearing Agency) in accordance with applicable regulations, a report
summarizing the items provided to Certificateholders pursuant to Section
4.03(a) on an annual basis as may be required to enable such Holders to
prepare their federal income tax returns. Such information shall include the
amount of original issue discount accrued on each Class of Certificates and
information regarding the expenses of the Trust Fund. The Master Servicer
shall provide the Securities Administrator with such information as is
necessary for the Securities Administrator to prepare such reports.
Section 4.04. Certificate Account. (a) The Trustee shall establish
and maintain in its name, as trustee, a trust account (the "Certificate
Account"), to be held in trust for the benefit of the Certificateholders and
the Class 2-A5 Certificate Insurer until disbursed pursuant to the terms of
this Agreement. The Certificate Account shall be an Eligible Account. If the
existing Certificate Account ceases to be an Eligible Account, the Trustee
shall establish a new Certificate Account that is an Eligible Account within
20 Business Days and transfer all funds on deposit in such existing
Certificate Account into such new Certificate Account. The Certificate Account
shall relate solely to the Certificates issued hereunder and funds in the
Certificate Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies
of the Trustee held under this Agreement.
(b) The Trustee shall cause to be deposited into the Certificate
Account on the day on which, or, if such day is not a Business Day, the
Business Day immediately following the day on which, any monies are remitted
by the Securities Administrator to the Trustee all such amounts. The Trustee
shall make withdrawals from the Certificate Account only for the following
purposes:
(i) to withdraw amounts deposited in the Certificate Account in
error;
(ii) to pay the Securities Administrator any investment income
earned with respect to funds in the Certificate Account invested in
Eligible Investments as set forth in subsection (c) below, and to
make payments to itself and others pursuant to any provision of this
Agreement;
(iii) to make payments of the Master Servicing Fee (to the
extent not already withheld or withdrawn from the Collection Account
by the Master Servicer) to the Master Servicer;
(iv) to make distributions to the Certificateholders and the
Class 2-A5 Certificate Insurer pursuant to Article V; and
(v) to clear and terminate the Certificate Account pursuant to
Section 7.02.
(c) The Trustee may invest, or cause to be invested, funds held in
the Certificate Account, which funds, if invested, shall be invested in
Eligible Investments (which may be obligations of the Trustee described in
paragraph (viii) of the definition thereof). All such investments must be
payable on demand or mature no later than the next Distribution Date, and
shall not be sold or disposed of prior to their maturity. All such Eligible
Investments will be made in the name of the Trustee (in its capacity as such)
or its nominee. All income and gain realized from any such investment shall be
compensation for the Securities Administrator and shall be subject to its
withdrawal on order from time to time. The amount of any losses incurred in
respect of any such investments shall be paid by the Securities Administrator
for deposit in the Certificate Account out of its own funds, without any right
of reimbursement therefor, immediately as realized. Funds held in the
Certificate Account that are not invested shall be held in cash.
Section 4.05. Determination of LIBOR. (a) If the outstanding
Certificates include any LIBOR Certificates or consist of any LIBOR
Components, then on each LIBOR Determination Date the Securities Administrator
shall determine LIBOR on the basis of the offered LIBOR quotations of the
Reference Banks as of 11:00 a.m. London time on such LIBOR Determination Date
as follows:
(i) If on any LIBOR Determination Date two or more of the
Reference Banks provide such offered quotations, LIBOR for the next
Accrual Period will be the arithmetic mean of such offered quotations
(rounding such arithmetic mean if necessary to the nearest five
decimal places;
(ii) If on any LIBOR Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Accrual Period will be whichever is the higher of (x) LIBOR as
determined on the previous LIBOR Determination Date or (y) the
Reserve Interest Rate. The "Reserve Interest Rate" will be either (A)
the rate per annum which the Securities Administrator determines to
be the arithmetic mean (rounding such arithmetic mean if necessary to
the nearest five decimal places) of the one-month Eurodollar lending
rates that New York City banks selected by the Depositor are quoting,
on the relevant LIBOR Determination Date, to the principal London
offices of at least two leading banks in the London interbank market
or (B) in the event that the Securities Administrator can determine
no such arithmetic mean, the lowest one-month Eurodollar lending rate
that the New York City banks selected by the Depositor are quoting on
such LIBOR Determination Date to leading European banks; and
(iii) If on any LIBOR Determination Date the Securities
Administrator is required but is unable to determine the Reserve
Interest Rate in the manner provided in paragraph (ii) above, LIBOR
for the next Accrual Period will be LIBOR as determined on the
previous LIBOR Determination Date or, in the case of the first LIBOR
Determination Date, the Initial LIBOR Rate.
(b) The establishment of LIBOR by the Securities Administrator and
the Securities Administrator's subsequent calculation of the Certificate
Interest Rate or Component Interest Rate (or Rates) applicable to the LIBOR
Certificates and LIBOR Components for the relevant Accrual Period, in the
absence of manifest error, will be final and binding. In all cases, the
Securities Administrator may conclusively rely on quotations of LIBOR for the
Reference Banks as such quotations appear on the display designated "LIUS01M"
on the Bloomberg Financial Markets Commodities News.
(c) As used herein, "Reference Banks" shall mean four leading banks
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) whose quotations appear on the "Bloomberg Screen LIUS01M Index
Page" (as described in the definition of LIBOR) on the applicable LIBOR
Determination Date and (iii) which have been designated as such by the
Depositor and are able and willing to provide such quotations to the Depositor
on each LIBOR Determination Date. The Reference Banks initially shall be:
Barclay's plc, Bank of Tokyo, National Westminster Bank and Trust Company and
Bankers Trust Company. If any of the initial Reference Banks should be removed
from the Bloomberg Screen LIUS01M Index Page or in any other way fail to meet
the qualifications of a Reference Bank, the Depositor shall use its best
efforts to designate alternate Reference Banks.
(d) If (i) with respect to any LIBOR Determination Date LIBOR is
determined pursuant to clause (a)(iii) of this Section and (ii) on the next
succeeding LIBOR Determination Date LIBOR would, without giving effect to this
paragraph (d), be determined pursuant to such clause (a)(iii), then the
Depositor shall select an alternative interest rate index over which the
Depositor has no control that is used for determining Eurodollar lending rates
and is calculated and published (or otherwise made available) by an
independent third party, and such alternative interest rate index shall
constitute LIBOR for all purposes hereof.
Section 4.06. The Class 2-A5 Reserve Fund. (a) The Trustee shall
establish and maintain the Class 2-A5 Reserve Fund, which shall be an Eligible
Account into which there shall have been deposited the amount of $8,000 on the
Closing Date. No additional funds will be deposited in the Class 2-A5 Reserve
Fund after the Closing Date. All funds deposited in the Class 2-A5 Reserve
Fund, other than investment earnings thereon which shall be released by the
Trustee to ▇▇▇▇▇▇ Brothers Inc. from time to time by written order, shall be
held in trust for the benefit of the Holders of the Class 2-A5 Certificates
until withdrawn in accordance with Section 5.02(d). The Class 2-A5 Reserve
Fund shall be an "outside reserve fund" under the REMIC Provisions. ▇▇▇▇▇▇
Brothers Inc. shall be the beneficial owner of the Class 2-A5 Reserve Fund for
federal and state income tax purposes. The Trustee, upon the instructions of
the Depositor, may invest, or cause to be invested, funds in the Class 2-A5
Reserve Fund in Eligible Investments (which may be the obligation of the
Trustee).
(b) The Trustee shall from time to time make withdrawals from the
Class 2-A5 Reserve Fund on behalf of the Trust Fund for the following
purposes:
(i) prior to each Distribution Date, to withdraw from the Class
2-A5 Reserve Fund an amount equal to the lesser of (a) any Net
Prepayment Interest Shortfalls and any Relief Act Reductions for Pool
2 allocable to the Class 2-A5 Certificates for the related
Distribution Date, and (b) the amount on deposit in the Class 2-A5
Reserve Fund, and remit such amount to the Certificate Account for
distribution to the Class 2-A5 Certificateholders on such
Distribution Date; and
(ii) on the earlier of (a) the Distribution Date on which the
Class Principal Amount of the Class 2-A5 Certificates is reduced to
zero and (b) the termination of this Agreement pursuant to Section
7.01, to clear and terminate the Class 2-A5 Reserve Fund and to pay
all amounts on deposit therein to ▇▇▇▇▇▇ Brothers Inc. at the address
supplied by it to the Trustee for such purpose.
Section 4.07. Securities Administrator Account. (a) On the Closing
Date, the Securities Administrator shall open and shall thereafter maintain an
account held in trust (the "Securities Administrator Account"), entitled
"▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Securities Administrator, in trust for
the benefit of the Holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2000-3." The Securities Administrator
Account shall relate solely to the Certificates issued by the Trust Fund
hereunder, and funds in such Securities Administrator Account shall not be
commingled with any other monies.
(b) The Securities Administrator Account shall be an Eligible
Account. If an existing Securities Administrator Account ceases to be an
Eligible Account, the Securities Administrator shall establish a new
Securities Administrator Account that is an Eligible Account within 20
Business Days of notice thereof to the Securities Administrator, and shall
transfer all funds on deposit in such existing Securities Administrator
Account into such new Securities Administrator Account.
(c) The Securities Administrator shall make withdrawals from the
Securities Administrator Account only for the following purposes:
(i) to withdraw amounts deposited in the Securities
Administrator Account in error;
(ii) to make payments of the Securities Administrator Fee to
itself (or, to the extent agreed between the Securities Administrator
and the Trustee, to the Trustee);
(iii) to make payments to the Trustee for deposit into the
Certificate Account pursuant to Section 4.07(d); and
(iv) to clear and terminate the Securities Administrator Account
pursuant to Section 7.02.
(d) The Securities Administrator shall give to the Trustee prior
written notice of the name and address of the depository institution at which
the Securities Administrator Account is maintained and the account number of
such Securities Administrator Account. On each Deposit Date, the entire amount
on deposit in the Securities Administrator Account (less any amounts withdrawn
pursuant to Sections 4.07(c)(i) and (ii)), shall be remitted to the Trustee
for deposit into the Certificate Account by wire transfer in immediately
available funds. The Securities Administrator, at its option, may choose to
make daily remittances from the Securities Administrator Account to the
Trustee for deposit into the Certificate Account.
(e) The Securities Administrator shall cause to be deposited into the
Securities Administrator Account on the day on which, or, if such day is not a
Business Day immediately following the day on which, any monies are remitted
by the Master Servicer to the Securities Administrator all such amounts.
(f) The Securities Administrator may invest, or cause to be invested,
funds held in the Securities Administrator Account, which funds, if invested,
shall be invested in Eligible Investments (which may be obligations of the
Securities Administrator). All such investments must mature not later than the
Deposit Date, and shall not be sold or disposed of prior to its maturity. All
such Eligible Investments shall be made in the name of the Trustee (in its
capacity as such) or its nominee. All income and gain realized from any such
investment shall be for the benefit of the Securities Administrator and shall
be subject to its withdrawal on order from time to time, and shall not be part
of the Trust Fund. The amount of any losses incurred in respect of any such
investments shall be deposited in such Securities Administrator Account by the
Securities Administrator out of its own funds, without any right of
reimbursement therefor, immediately as realized. The foregoing requirements
for deposit in the Securities Administrator Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Securities Administrator Account need not
be deposited by the Securities Administrator in the Securities Administrator
Account and may be retained by the Securities Administrator as compensation.
If the Securities Administrator deposits in the Securities Administrator
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Securities Administrator Account. Funds held in
the Securities Administrator Account that are not invested shall be held in
cash.
Article V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. (a) Subject to Section 7.01
respecting the final distribution on the Certificates, on each Distribution
Date the Trustee or the Paying Agent shall make distributions in accordance
with this Article V. Such distributions shall be made by check mailed to each
Certificateholder's address as it appears on the Certificate Register of the
Certificate Registrar (which shall initially be the Trustee) or, upon written
request made to the Trustee at least three Business Days prior to the related
Distribution Date to any Certificateholder owning an aggregate initial
Certificate Principal Amount of at least $2,500,000, or, in the case of the
Notional Certificates and Principal Only Certificates, a Percentage Interest
of 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. Wire transfers will be made at the expense of the
Holder requesting such wire transfer by deducting a wire transfer fee from the
related distribution. Notwithstanding such final payment of principal of any
of the Certificates, each Residual Certificate will remain outstanding until
the termination of each REMIC and the payment in full of all other amounts due
with respect to the Residual Certificate and at such time such final payment
in retirement of any Residual Certificate will be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office of the Trustee
or at the office of the New York Presenting Agent. If any payment required to
be made on the Certificates is to be made on a day that is not a Business Day,
then such payment will be made on the next succeeding Business Day. Payments
to the Class 2-A5 Certificate Insurer shall in all cases be made by wire
transfer of immediately available funds.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Certificate Principal Amounts (or
initial Notional Amounts).
Section 5.02. Distributions from the Certificate Account. (a) On each
Distribution Date, the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account the Available Distribution Amount
with respect to each Mortgage Pool, and shall distribute such amount to the
Class 2-A5 Certificate Insurer, to itself and to the Holders of record of each
Class of Certificates, in the following order of priority based on the report
of the Securities Administrator:
(i) from the Available Distribution Amount for Pool 2, to the
Class 2-A5 Certificate Insurer, the Aggregate Class 2-A5 Certificate
Insurance Premium;
(ii) from the Available Distribution Amount for each Mortgage
Pool, to each Class of Senior Certificates in the related Certificate
Group (other than any Class of Principal Only Certificates), the
Accrued Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for the related Mortgage Pool for such
Distribution Date; provided, however, that any shortfall in available
amounts for each Mortgage Pool shall be allocated among the Classes
of the related Certificate Group in proportion to the amount of
Accrued Certificate Interest (as so reduced) that would otherwise be
distributable thereon;
(iii) from the Available Distribution Amount for each Mortgage
Pool, to each Class of Senior Certificates in the related Certificate
Group (other than any Class of Principal Only Certificates), any
related Interest Shortfall for such Distribution Date; provided,
however, that any shortfall in available amounts for each Mortgage
Pool shall be allocated among the Classes of the related Certificate
Group in proportion to the Interest Shortfall for each such Class on
such Distribution Date;
(iv) from the remaining Available Distribution Amount for each
Mortgage Pool, to the Senior Certificates of the related Certificate
Group (other than any Class of Notional Certificates), as follows:
(A) to the Class 1-A1, Class 1-A3, Class 1-A5, Class 1-A7,
Class 1-AP and Class R Certificates, from the Available
Distribution Amount for Pool 1 for such Distribution Date, in
reduction of their respective Class Principal Amounts,
concurrently, as follows:
(1) to the Class 1-A1, Class 1-A3, Class 1-A5, Class
1-A7 and Class R Certificates, the Senior Principal
Distribution Amount for Pool 1 for such Distribution Date,
in the following order of priority:
(a) to the Class 1-A7 Certificates, the lesser of
(i) the Class 1-A7 Priority Amount for such
Distribution Date and (ii) 98.6% of the Senior
Principal Distribution Amount for Pool 1 for such
Distribution Date, until the Class Principal Amount
thereof has been reduced to zero; and
(b) to the Class 1-A1, Class 1-A3, Class 1-A5 and
Class R Certificates, in reduction of their respective
Class Principal Amounts, the remaining Senior
Principal Distribution Amount for Pool 1 for such
Distribution Date, in the following order of priority:
(I) to the Class R Certificate, until the
Class Principal Amount thereof has been reduced
to zero;
(II) to the Class 1-A1 and Class 1-A3
Certificates, until a total of $1,650,000 has
been distributed under this clause
(iv)(A)(1)(b)(II) for each Distribution Date,
concurrently, as follows:
(x) to the Class 1-A1 Certificates,
$1,567,500 of the amount distributable under
clause (iv)(A)(1)(b)(II) for such
Distribution Date; and
(y) to the Class 1-A3 Certificates,
$82,500 of the amount distributable under
clause (iv)(A)(1)(b)(II) for such
Distribution Date;
(III) sequentially, to the Class 1-A3, Class
1-A1 and Class 1-A5 Certificates, in that order,
until the Class Principal Amount of each such
Class has been reduced to zero; and
(c) to the Class 1-A7 Certificates, until their
Class Principal Amount has been reduced to zero; and
(2) to the Class 1-AP Certificates, the AP
Principal Distribution Amount for Pool 1, until the Class
Principal Amount thereof has been reduced to zero;
(B) to the Class 2-A1, Class 2-A3, Class 2-A5, Class
2-A6 and Class 2-AP Certificates, from the Available
Distribution Amount for Pool 2 for such Distribution Date, in
reduction of their respective Class Principal Amounts,
concurrently, as follows:
(1) to the Class 2-A1, Class 2-A3, Class 2-A5
and Class 2-A6 Certificates, the Senior Principal
Distribution Amount for Pool 2 for such Distribution Date,
in the following order of priority:
(a) if the Distribution Date occurs on or after
the Distribution Date in August 2003, to the Class
2-A5 Certificates, an amount on each Distribution Date
up to $25,000 for each Distribution Date, until their
Class Principal Amount has been reduced to zero;
(b) to the Class 2-A6 Certificates, the
lesser of (i) the Class 2-A6 Priority Amount for such
Distribution Date and (ii) 98.6% of the Senior
Principal Distribution Amount for Pool 2 for such
Distribution Date, until Class Principal Balance
thereof has been reduced to zero; and
(c) to the Class 2-A1 and Class 2-A3
Certificates, until a total of $940,000 has been
distributed under this clause (iv)(B)(1)(c) for each
Distribution Date, concurrently, as follows:
(x) to the Class 2-A1 Certificates,
$846,000 of the amount distributable under
clause (iv)(B)(1)(c); and
(y) to the Class 2-A3 Certificates,
$94,000 of the amount distributable under
clause (iv)(B)(1)(c);
(d) sequentially, to the Class 2-A3 and Class
2-A1 Certificates, in that order, until the Class
Principal Amount of such Class has been reduced to
zero;
(e) to the Class 2-A5 until the Class Principal
Amount of such Class has been reduced to zero; and
(f) to the Class 2-A6 Certificates, until their
Class Principal Amount has been reduced to zero;
(2) to the Class 2-AP Certificates, the AP Principal
Distribution Amount for Pool 2 for such Distribution Date,
until the Class Principal Amount thereof has been reduced
to zero;
(C) to the Class 3-A1 and Class 3-AP Certificates, from the
Available Distribution Amount for Pool 3 for such Distribution
Date, in reduction of their respective Class Principal Amounts,
concurrently, as follows:
(1) to the Class 3-A1 Certificates, the Senior
Principal Distribution Amount for Pool 3 for such
Distribution Date, until the Class Principal Amount thereof
has been reduced to zero; and
(2) to the Class 3-AP Certificates, the AP
Distribution Amount for Pool 3 for such Distribution Date,
until the Class Principal Amount thereof has been reduced
to zero;
(D) to the Class 4-A1 and Class 4-AP Certificates, from the
Available Distribution Amount for Pool 4 for such Distribution
Date, in reduction of their respective Class Principal Amounts,
concurrently, as follows:
(1) to the Class 4-A1 Certificates, the Senior
Principal Distribution Amount for Pool 4 for such
Distribution Date, until the Class Principal Amount thereof
has been reduced to zero; and
(2) to the Class 4-AP Certificates, the AP
Distribution Amount for Pool 4 for such Distribution Date,
until the Class Principal Amount thereof has been reduced
to zero;
(v) to the Class 1-AP, Class 2-AP, Class
3-AP and Class 4-AP Certificates, to the extent of
the remaining Available Distribution Amount for the
related Mortgage Pool, the Class AP Deferred Amount
for such Class and Distribution Date, until the
Class Principal Amount thereof has been reduced to
zero; provided, however, that (A) distributions
pursuant to this priority shall not exceed the
Subordinate Principal Distribution Amount for the
related Mortgage Pool for such date; and (B) such
amounts will not reduce the Class Principal Amounts
of such Classes;
(vi) from the Available Distribution
Amount for Pool 2, to the Class 2-A5 Certificate
Insurer, any unreimbursed Insured Payments, plus
all amounts due to the Class 2-A5 Certificate
Insurer under the Insurance Agreement, together
with interest thereon at the rate specified in the
Insurance Agreement (collectively, the
"Reimbursement Amounts"); and
(vii) to the extent of the remaining
Available Distribution Amounts for each Mortgage
Pool, to the Subordinate Certificates and
Components of each Certificate Group, as follows:
(A) to the extent of the remaining Available Distribution
Amount for Pool 1, to payment to the B1(1), B1(X1), B2(1),
B1(X2), B3(1), B4(1), B5(1) and B6(1) Component, in their order
of seniority (i.e., the Component designated with the lowest
non-parenthetical number is the highest ranking Component,
followed in ascending order by the next highest number and so
forth, provided that the B1(X1) Component ranks the same as the
B1(1) Component and the B1(X2) Component ranks the same as the
B2(1) Component), of the following amounts, in the following
order of priority: (x) Accrued Certificate Interest thereon (as
reduced by any Net Prepayment Interest Shortfalls for the
related Mortgage Pool allocated to such Component on such
Distribution Date), (y) any outstanding Interest Shortfalls
previously allocated to such Component, and (z) such Component's
Subordinate Component Percentage of the Subordinate Principal
Distribution Amount for Group 1 for such Distribution Date,
except as provided below, in reduction of the Component
Principal Amounts thereof;
(B) to the extent of the remaining Available Distribution
Amount for Pool 2, to payment to the B1(2), B2(2), B3(2), B4(2),
B5(2) and B6(2) Component, in that order, of the following
amounts, in the following order of priority: (x) Accrued
Certificate Interest thereon (as reduced by any Net Prepayment
Interest Shortfalls for the related Mortgage Pool allocated to
such Component on such Distribution Date), (y) any outstanding
Interest Shortfalls previously allocated to such Component, and
(z) such Component's Subordinate Component Percentage of the
Subordinate Principal Distribution Amount for Group 2 for such
Distribution Date, except as provided below, in reduction of the
Component Principal Amounts thereof;
(C) to the extent of remaining Available Distribution
Amount for Pool 3, to payment to the B1(3), B2(3), B3(3), B4(3),
B5(3) and B6(3) Component, in that order, of the following
amounts, in the following order of priority: (x) Accrued
Certificate Interest thereon (as reduced by any Net Prepayment
Interest Shortfalls for the related Mortgage Pool allocated to
such Component on such Distribution Date), (y) any outstanding
Interest Shortfalls previously allocated to such Component, and
(z) such Component's Subordinate Component Percentage of the
Subordinate Principal Distribution Amount for Group 3 for such
Distribution Date, except as provided below, in reduction of the
Component Principal Amounts thereof; and
(D) to the extent of remaining Available Distribution
Amount for Pool 4, to payment to the B1(4), B2(4), B3(4), B4(4),
B5(4) and B6(4) Component, in that order, of the following
amounts, in the following order of priority: (x) Accrued
Certificate Interest thereon (as reduced by any Net Prepayment
Interest Shortfalls for the related Mortgage Pool allocated to
such Component on such Distribution Date), (y) any outstanding
Interest Shortfalls previously allocated to such Component, and
(z) such Component's Subordinate Component Percentage of the
Subordinate Principal Distribution Amount for Group 4 for such
Distribution Date, except as provided below, in reduction of the
Component Principal Amounts thereof.
(b) If on any Distribution Date the Component Principal Amounts of
each Component in any Certificate Group have each been reduced to zero, the
Available Distribution Amount with respect to the related Mortgage Pool
remaining after distribution of interest to the related Senior Certificates on
such date shall be distributed among the related Classes of Senior
Certificates proportionately, on the basis of their respective Class Principal
Amounts immediately prior to such Distribution Date, regardless of the
priorities and amounts set forth in Section 5.02(a)(v).
(c) (i) If on any Distribution Date the Credit Support Percentage for
any Component of the Class B1 Certificates is less than the Original Credit
Support Percentage for such Component, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
will be made in respect of the Components of the Class B2, Class B3, Class B4,
Class B5 or Class B6 Certificates in the related Certificate Group on such
Distribution Date. (ii) If on any Distribution Date the Credit Support
Percentage for any Component of the Class B2 Certificates is less than the
Original Credit Support Percentage for such Component, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount will be made in respect of the Components of the Class B3,
Class B4, Class B5 or Class B6 Certificates in the related Certificate Group
on such Distribution Date. (iii) If on any Distribution Date the Credit
Support Percentage for any Component of the Class B3 Certificates is less than
the Original Credit Support Percentage for such Component, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of amounts described in clauses (ii) and (iii) of the definition of
Subordinate Principal Distribution Amount will be made in respect of the
Components of the Class B4, Class B5 or Class B6 Certificates in the related
Certificate Group on such Distribution Date. (iv) If on any Distribution Date
the Credit Support Percentage for any Component of the Class B4 Certificates
is less than the Original Credit Support Percentage for such Component, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of amounts described in clauses (ii) and (iii) of the definition of
Subordinate Principal Distribution Amount will be made in respect of the
Components of the Class B5 or Class B6 Certificates in the related Certificate
Group on such Distribution Date. (v) If on any Distribution Date the Credit
Support Percentage for any Component of the Class B5 Certificates is less than
the Original Credit Support Percentage for such Component, then,
notwithstanding anything to the contrary in Section 5.02(a), no distribution
of amounts described in clauses (ii) and (iii) of the definition of
Subordinate Principal Distribution Amount will be made in respect of the
Components of the Class B6 Certificates in the related Certificate Group on
such Distribution Date.
Any amount not distributed in respect of any Component on any
Distribution Date pursuant to the immediately preceding paragraph will be
allocated among the remaining Components in proportion to their respective
Component Principal Amounts.
(d) On each Distribution Date, the Trustee shall distribute the
amount withdrawn from the Class 2-A5 Reserve Fund with respect to such
Distribution Date pursuant to Section 4.06, to the extent of funds on deposit
in the Class 2-A5 Reserve Fund, and shall apply such funds to distributions on
the Class 2-A5 Certificates, as interest thereon, in the amount of (i) any Net
Prepayment Interest Shortfalls for Pool 2 allocable to the Class 2-A5
Certificates on such Distribution Date and (ii) any Relief Act Reductions
allocable to the Class 2-A5 Certificates on such Distribution Date.
(e) On each Distribution Date, the Trustee shall distribute to the
Holder of the Class R Certificate any amounts remaining in the Upper Tier
REMIC for such Distribution Date after application of all amounts described in
paragraph (a) of this Section 5.02. Any distributions pursuant to this
paragraph (e) shall not reduce the Class Principal Amount of the Class R
Certificate.
Section 5.03. Allocation of Realized Losses. (a) On any Distribution
Date, (x) the applicable AP Percentage of the principal portion of each
Realized Loss (other than any Excess Loss) in respect of a Mortgage Loan in
each Mortgage Pool will be allocated to the related Class of Principal Only
Certificates until the Class Principal Amount thereof has been reduced to
zero; and (y) the applicable Non-AP Percentage of the principal portion of
each Realized Loss in respect of a Mortgage Loan in each Mortgage Pool will be
allocated in the following order of priority:
first, to the related Component of the Class B6
Certificates, until the Component Principal Amount thereof
has been reduced to zero;
second, to the related Component of the Class B5
Certificates, until the Component Principal Amount thereof
has been reduced to zero;
third, to the related Component of the Class B4
Certificates, until the Component Principal Amount thereof
has been reduced to zero;
fourth, to the related Component of the Class B3
Certificates, until the Component Principal Amount thereof
has been reduced to zero;
fifth, to the related Component of the Class B2
Certificates, until the Component Principal Amount thereof
has been reduced to zero;
sixth, to the related Component of the Class B1
Certificates, until the Component Principal Amount thereof
has been reduced to zero; and
seventh, to the Classes of Senior Certificates
(other than the Class AP Certificates) of the related
Certificate Group, pro rata, in accordance with their Class
Principal Amounts; provided, that any such loss allocated to
any Class of Accrual Certificates shall be allocated
(subject to Section 5.03(c)) on the basis of the lesser of
(x) the Class Principal Amount thereof immediately prior to
the applicable Distribution Date and (y) the Class Principal
Amount thereof on the Closing Date (as reduced by any
Realized Losses previously allocated thereto).
(b) With respect to any Distribution Date, the applicable Non-AP
Percentage of the principal portion of any Excess Loss in respect of a
Mortgage Loan shall be allocated, pro rata, to the Certificates and Components
of the related Certificate Group based on the respective Class Principal
Amounts or Component Principal Amounts thereof; provided, that any such loss
allocated to any Class of Accrual Certificates (and any Accrual Component)
shall be allocated (subject to Section 5.03(c)) on the basis of the lesser of
(x) the Class Principal Amount (or Component Principal Amount) thereof
immediately prior to the applicable Distribution Date and (y) the Class
Principal Amount (or Component Principal Amount) thereof on the Closing Date
(as reduced by any Realized Losses previously allocated thereto). The
applicable AP Percentage of the principal portion of an Excess Loss in a
Mortgage Pool will be applied to the related Class of Principal Only
Certificates until the Class Principal Amount thereof has been reduced to
zero.
(c) Any Realized Losses allocated to a Class of Certificates pursuant
to Section 5.03(a) or (b) shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Principal Amounts. In
addition, any Realized Losses allocated to any Class of Component Certificates
on a Distribution Date shall be allocated in reduction of the Component
Principal Amounts of the related Components (other than any Notional
Component) in proportion to their respective Component Principal Amounts
immediately prior to such Distribution Date. Any allocation of Realized Losses
pursuant to this paragraph (c) shall be accomplished by reducing the
Certificate Principal Amount (or, in the case of any Component, the Component
Principal Amount) of the related Certificates (or Components) on the related
Distribution Date in accordance with Section 5.03(d).
(d) Realized Losses allocated in accordance with this Section 5.03
shall be allocated on the Distribution Date in the month following the month
in which such loss was incurred and, in the case of the principal portion
thereof, after giving effect to distributions made on such Distribution Date,
except that the aggregate amount of Realized Losses to be allocated to the
Principal Only Certificates on such Distribution Date will be taken into
account in determining distributions in respect of any related Class AP
Deferred Amount for such date.
(e) On each Distribution Date, the Component Writedown Amount for
such date shall effect a corresponding reduction in the Component Principal
Amount of the lowest ranking Component of the related Mortgage Pool, which
reduction shall occur on such Distribution Date after giving effect to
distributions made on such Distribution Date.
(f) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates, and, if applicable, one
or more Components, each outstanding Class or Component to which any portion
of such Realized Loss had previously been allocated shall be entitled to
receive, on the Distribution Date in the month following the month in which
such recovery is received, its pro rata share (based on the Class Principal
Amount or Component Principal Amount thereof) of such recovery, up to the
amount of the portion of such Realized Loss previously allocated to such
Class. In the event that the total amount of such recovery exceeds the amount
of Realized Loss allocated to the outstanding Classes in accordance with the
preceding provisions, each outstanding Class of Certificates or Component
shall be entitled to receive its pro rata share of the amount of such excess,
up to the amount of any unrecovered Realized Loss previously allocated to such
Class. Any such recovery allocated to a Class of Certificates shall not
further reduce the Certificate Principal Amount of such Certificate. Any such
amounts not otherwise allocated to any Class of Certificates, pursuant to this
subsection shall be treated as Principal Prepayments for purposes of this
Agreement.
Section 5.04. Advances by Master Servicer and Trustee. (a) Advances
shall be made in respect of each Master Servicer Remittance Date as provided
herein. If, on any Determination Date, the Master Servicer determines that any
Scheduled Payments due during the related Due Period (other than Balloon
Payments) have not been received, the Master Servicer shall, or cause the
applicable Servicer to, advance such amount, less an amount, if any, to be set
forth in an Officer's Certificate to be delivered to the Trustee on such
Determination Date, which if advanced the Master Servicer or the applicable
Servicer has determined would not be recoverable from amounts received with
respect to such Mortgage Loan, including late payments, Liquidation Proceeds,
Insurance Proceeds or otherwise. If the Master Servicer determines that an
Advance is required, it shall on the Master Servicer Remittance Date
immediately following such Determination Date either (i) remit to the
Securities Administrator from its own funds (or funds advanced by the
applicable Servicer) for deposit in the Securities Administrator Account
immediately available funds in an amount equal to such Advance, (ii) cause to
be made an appropriate entry in the records of the Collection Account that
funds in such account being held for future distribution or withdrawal have
been, as permitted by this Section 5.04, used by the Master Servicer to make
such Advance, and remit such immediately available funds to the Securities
Administrator for deposit in the Securities Administrator Account or (iii)
make Advances in the form of any combination of clauses (i) and (ii)
aggregating the amount of such Advance. Any funds being held in the Collection
Account for future distribution to Certificateholders and so used shall be
replaced by the Master Servicer from its own funds by remittance to the
Securities Administrator for deposit in the Securities Administrator Account
on or before any future Master Servicer Remittance Date to the extent that
funds in the Securities Administrator Account on such Master Servicer
Remittance Date shall be less than payments to Certificateholders required to
be made on the related Distribution Date. The Master Servicer and each
Servicer shall be entitled to be reimbursed from the Collection Account for
all Advances made by it as provided in Section 4.02.
(b) In the event that the Master Servicer fails for any reason to
make an Advance required to be made pursuant to Section 5.04 on or before the
Master Servicer Remittance Date, the Trustee, as successor Master Servicer
pursuant to Section 6.14, shall, on or before the related Distribution Date,
deposit in the Certificate Account an amount equal to the excess of (a)
Advances required to be made by the Master Servicer or any Servicer that would
have been deposited in such Certificate Account over (b) the amount of any
Advance made by the Master Servicer or any Servicer with respect to such
Distribution Date; provided, however, that the Trustee shall be required to
make such Advance only if it is not prohibited by law from doing so and it has
determined that such Advance would be recoverable from amounts to be received
with respect to such Mortgage Loan, including late payments, Liquidation
Proceeds, Insurance Proceeds, or otherwise. The Trustee shall be entitled to
be reimbursed from the Certificate Account for Advances made by it pursuant to
this Section 5.04 as if it were the Master Servicer.
Section 5.05. Compensating Interest Payments. The amount of the
Master Servicing Fee payable to the Master Servicer in respect of any
Distribution Date shall be reduced by the amount of any Compensating Interest
Payment for such Distribution Date, but only to the extent such Compensating
Interest Payment is not actually made by a Servicer on the applicable
Remittance Date. Such amount shall not be treated as an Advance and shall not
be reimbursable to the Master Servicer.
Section 5.06. Distributions of Principal on Redemption Certificates.
(a) Except as provided in subclauses (d) and (f) below, on each Distribution
Date on which distributions in reduction of the Class Principal Amount of a
Class of Redemption Certificates are made, such distributions will be made in
the following order of priority:
(i) any request by the personal representative of a Deceased
Holder or by a surviving tenant by the entirety, by a surviving joint
tenant or by a surviving tenant in common or other Person empowered
to act on behalf of such Deceased Holder upon his or her death, in an
amount up to but not exceeding $100,000 per request; and
(ii) any request by a Living Holder, in an amount up to but not
exceeding $10,000 per request.
Thereafter, distributions will be made as provided in clauses (i) and
(ii) above up to a second $100,000 and $10,000 per request, respectively. This
sequence of priorities will be repeated for each request for principal
distributions made by the Certificate Owners of a Class of Redemption
Certificates until all such requests have been honored.
Requests for distributions in reduction of the Certificate Principal
Amounts of Redemption Certificates presented on behalf of Deceased Holders in
accordance with the provisions of clause (i) above will be accepted in the
order of their receipt by the Clearing Agency. Requests for distributions in
reduction of the Certificate Principal Amounts of Redemption Certificates
presented in accordance with the provisions of clause (ii) above will be
accepted in the order of priority established by the random lot procedures of
the Clearing Agency after all requests with respect to such Class presented in
accordance with clause (i) have been honored. All requests for distributions
in reduction of the Class Principal Amount of a Class of Redemption
Certificates with respect to any Distribution Date shall be made in accordance
with Section 5.06(c) below and must be received by the Clearing Agency and
forwarded to, and received by, the Trustee no later than the close of business
on the related Record Date. Requests for distributions that are received by
the Clearing Agency and forwarded to the Trustee after the related Record Date
and requests, in either case, for distributions timely received but not
accepted with respect to any Distribution Date, will be treated as requests
for distributions in reduction of the Class Principal Amount of the applicable
Class of Redemption Certificates on the next succeeding Distribution Date, and
each succeeding Distribution Date thereafter, until each such request is
accepted or is withdrawn as provided in Section 5.06(c). Such requests as are
not so withdrawn shall retain their order of priority without the need for any
further action on the part of the appropriate Certificate Owner of the related
Redemption Certificate, all in accordance with the procedures of the Clearing
Agency and the Trustee. Upon the transfer of beneficial ownership of any
Redemption Certificate, any distribution request previously submitted with
respect to such Certificate will be deemed to have been withdrawn only upon
the receipt by the Trustee of notification of such withdrawal using a form
required by the Clearing Agency.
Distributions in reduction of the Certificate Principal Amounts of
Redemption Certificates will be applied, in the aggregate, to such
Certificates in an amount equal to the portion of the Available Distribution
Amount distributable to the Redemption Certificates pursuant to Section
5.02(a)(v), plus any amounts available for distribution from the applicable
Rounding Account pursuant to Section 5.06(e), provided that the aggregate
distribution in reduction of the Class Principal Amount of any Class of
Redemption Certificates on any Distribution Date is made in an integral
multiple of $1,000.
(b) A "Deceased Holder" is a Certificate Owner of a Redemption
Certificate who was living at the time such interest was acquired and whose
authorized personal representative, surviving tenant by the entirety,
surviving joint tenant or surviving tenant in common or other Person empowered
to act on behalf of such Certificate Owner upon his or her death, causes to be
furnished to the Trustee a certified copy of the death certificate of such
Certificate Owner and any additional evidence of death required by and
satisfactory to the Trustee and any tax waivers requested by the Trustee.
Redemption Certificates beneficially owned by tenants by the entirety, joint
tenants or tenants in common will be considered to be beneficially owned by a
single owner. The death of a tenant by the entirety, joint tenant or tenant in
common will be deemed to be the death of the Certificate Owner, and any
Redemption Certificates so beneficially owned will be eligible for priority
with respect to distributions in reduction of the Class Principal Amount of
such Class of Redemption Certificates, subject to the limitations stated
above. Redemption Certificates beneficially owned by a trust will be
considered to be beneficially owned by each beneficiary of the trust to the
extent of such beneficiary's beneficial interest therein, but in no event will
a trust's beneficiaries collectively be deemed to be Certificate Owners of a
number of Individual Redemption Certificates greater than the number of
Individual Redemption Certificates of which such trust is the beneficial
owner. The death of a beneficiary of a trust will be deemed to be the death of
a Certificate Owner of the Redemption Certificates beneficially owned by the
trust to the extent of such beneficiary's beneficial interest in such trust.
The death of an individual who was a tenant by the entirety, joint tenant or
tenant in common in a tenancy that is the beneficiary of a trust will be
deemed to be the death of the beneficiary of the trust. The death of a person
who, during his or her lifetime, was entitled to substantially all of the
beneficial ownership interests in Redemption Certificates will be deemed to be
the death of the Certificate Owner of such Redemption Certificates regardless
of the registration of ownership of such Redemption Certificates, if such
beneficial interest can be established to the satisfaction of the Trustee.
Such beneficial interest will be deemed to exist in typical cases of street
name or nominee ownership, ownership by a trustee, ownership under the Uniform
Gifts to Minors Act and community property or other joint ownership
arrangements between a husband and wife. Beneficial interests shall include
the power to sell, transfer or otherwise dispose of a Redemption Certificate
and the right to receive the proceeds therefrom, as well as interest and
distributions in reduction of the Certificate Principal Amounts of the
Redemption Certificates payable with respect thereto. The Trustee shall not be
under any duty to determine independently (a) the occurrence of the death of
any deceased Certificate Owner or (b) whether an individual is the personal
representative of a Deceased Holder, or the surviving tenant by the entirety,
or the surviving joint tenant, or the surviving tenant in common, or is
otherwise the Person empowered to act on behalf of such Deceased Holder (a
"Representative"). The Trustee shall be entitled to rely on a certificate
executed by the Representative indicating the nature of such Representative's
authority on behalf of the Deceased Holder. The Trustee may rely entirely upon
documentation delivered to it pursuant to this Section 5.06 in establishing
the eligibility of any Certificate Owner to receive the priority accorded
Deceased Holders in this Section 5.06(b), and shall have no liability if it
makes such determination in accordance with such documentation.
(c) Requests for distributions in reduction of the Certificate
Principal Amount of a Redemption Certificate must be made by delivering a
written request therefor to the Clearing Agency Participant or Financial
Intermediary that maintains the account evidencing the Certificate Owner's
interest in such Redemption Certificate. Such Clearing Agency Participant or
Financial Intermediary should in turn make the request of the Clearing Agency
(or, in the case of an Financial Intermediary, such Financial Intermediary
should notify the related Clearing Agency Participant of such request, which
Clearing Agency Participant should make the request of the Clearing Agency) on
a form required by the Clearing Agency and provided to the Clearing Agency
Participant. Upon receipt of such request, the Clearing Agency will date and
time stamp such request and forward such request to the Trustee. The Clearing
Agency may establish such procedures as it deems fair and equitable to
establish the order of receipt of requests for such distributions received by
it on the same day. The Trustee shall not be liable for any delay in delivery
of requests for distributions or withdrawals of such requests by the Clearing
Agency, a Clearing Agency Participant or any Financial Intermediary.
In the event that any requests for distributions in
reduction of the Certificate Principal Amount of Redemption Certificates are
rejected by the Trustee for failure to comply with the requirements of this
Section 5.06, the Trustee shall return such requests to the appropriate
Clearing Agency Participant with a copy to the Clearing Agency with an
explanation as to the reason for such rejection.
The Trustee shall maintain a list of those Clearing Agency
Participants representing the Certificate Owners of Redemption Certificates
that have submitted requests for distributions in reduction of the Certificate
Principal Amount of such Redemption Certificates, together with the order of
receipt and the amounts of such requests. The Trustee shall notify the
Clearing Agency and the appropriate Clearing Agency Participants as to which
requests should be honored on each Distribution Date. Requests shall be
honored by the Clearing Agency in accordance with the procedures, and subject
to the priorities and limitations, described in this Section 5.06. The exact
procedures to be followed by the Trustee and the Clearing Agency for purposes
of determining such priorities and limitations shall be those established from
time to time by the Trustee or the Clearing Agency, as the case may be. The
decisions of the Trustee and the Clearing Agency concerning such matters shall
be final and binding on all affected Persons.
Payments in reduction of the Certificate Principal Amounts
of Redemption Certificates shall be made on the applicable Distribution Date
and the Certificate Principal Amounts as to which such payments are made shall
cease to bear interest after the last day of the month preceding the month in
which such Distribution Date occurs.
Any Certificate Owner of a Redemption Certificate that has
requested a distribution may withdraw its request by so notifying in writing
the Clearing Agency Participant or Financial Intermediary that maintains such
Certificate Owner's account. In the event that such account is maintained by a
Financial Intermediary, such Financial Intermediary should notify the related
Clearing Agency Participant which in turn should forward the withdrawal of
such request, on a form required by the Clearing Agency, to the Trustee. If
such notice of withdrawal of a request for distribution has not been received
by the Clearing Agency and forwarded to the Trustee on or before the Record
Date for the next Distribution Date, the previously made request for
distribution will be irrevocable with respect to the making of distributions
in reduction of the Certificate Principal Amount of such Redemption
Certificate on such Distribution Date.
(d) To the extent, if any, that amounts available for distribution in
reduction of the Class Principal Amount of any Class of Redemption
Certificates on a Distribution Date exceed the dollar amount of requests for
distributions with respect to such Class that have been received by the
related Record Date, as provided in Section 5.06(c) above, distributions in
reduction of the Class Principal Amount of such Class of Redemption
Certificates will be made by mandatory distributions in reduction thereof. The
Trustee shall notify the Clearing Agency of the aggregate amount of the
mandatory distribution in reduction of the Class Principal Amount of such
Class of Redemption Certificates to be made on the next Distribution Date. The
Clearing Agency shall then allocate such aggregate amount among its Clearing
Agency Participants on a random lot basis. Each Clearing Agency Participant
and, in turn, each Financial Intermediary, will then select, in accordance
with its own procedures, Individual Redemption Certificates from among those
held in its accounts to receive mandatory distributions in reduction of the
Class Principal Amount of such Class of Redemption Certificates, such that the
total amount so selected is equal to the aggregate amount of such mandatory
distributions allocated to such Clearing Agency Participant by the Clearing
Agency and to such Financial Intermediary by its related Clearing Agency
Participant, as the case may be. Clearing Agency Participants and Financial
Intermediaries that hold Redemption Certificates selected for mandatory
distributions in reduction of the Class Principal Amount thereof should
provide notice of such mandatory distributions to the affected Certificate
Owners.
(e) On the Closing Date, a Rounding Account shall be established with
the Trustee for each Class of Redemption Certificates, and ▇▇▇▇▇▇ Brothers
Inc. shall cause to be initially deposited the sum of $999.99 in each Rounding
Account. On each Distribution Date on which a distribution is made in
reduction of the Class Principal Amount of a Class of Redemption Certificates,
funds on deposit in the applicable Rounding Account shall be, to the extent
needed, withdrawn by the Trustee and applied to round upward to an integral
multiple of $1,000 the aggregate distribution in reduction of the Class
Principal Amount to be made on such Redemption Certificates. Rounding of such
distribution on such Redemption Certificates shall be accomplished, on the
first such Distribution Date, by withdrawing from the applicable Rounding
Account the amount of funds, if any, needed to round the amount otherwise
available for such distribution in reduction of the Class Principal Amount of
such Class of Redemption Certificates upward to the next integral multiple of
$1,000. On each succeeding Distribution Date on which distributions in
reduction of the Class Principal Amount of such Class of Redemption
Certificates are to be made, the aggregate amount of such distributions
allocable to such Class of Redemption Certificates shall be applied first to
repay any funds withdrawn from the applicable Rounding Account and not
previously repaid, and then the remainder of such allocable amount, if any,
shall be similarly rounded upward and applied as distributions in reduction of
the Class Principal Amount of such Class of Redemption Certificates; this
process shall continue on succeeding Distribution Dates until the Class
Principal Amount of such Class of Redemption Certificates has been reduced to
zero. Each Rounding Account shall be an "outside reserve fund" under the REMIC
Provisions that is beneficially owned for all federal income tax purposes by
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇▇ Brothers Inc. will report all income, gain,
deduction or loss with respect thereto. The Trustee, upon the written
instructions of the Depositor, may invest, or cause to be invested funds in
and Rounding Account in Eligible Investments (which may be obligations of the
Trustee). The Trustee shall distribute interest earnings, if any, on amounts
held in any Rounding Account as such interest is earned pursuant to written
instructions from ▇▇▇▇▇▇ Brothers Inc. to the Trustee. In no event shall the
Trustee be liable for investment losses resulting from investment of funds in
the Rounding Accounts made in accordance with the instructions of the
Depositor.
Notwithstanding anything herein to the contrary, on the Distribution
Date on which distributions in reduction of the Class Principal Amount of any
Class of Redemption Certificates will reduce the Class Principal Amount
thereof to zero or in the event that distributions in reduction of the Class
Principal Amount of such Class of Redemption Certificates are made in
accordance with the provisions set forth in Section 5.06(f), an amount equal
to the difference between $999.99 and the sum then held in the applicable
Rounding Account shall be paid from the Available Distribution Amount for such
Distribution Date to such Rounding Account. Any funds then on deposit in such
Rounding Account shall be distributed to ▇▇▇▇▇▇ Brothers Inc.
(f) Notwithstanding any provisions herein to the contrary, on each
Distribution Date following the first Distribution Date on or after the Credit
Support Depletion Date, all distributions in reduction of the Class Principal
Amount of any Class of Redemption Certificates will be made among the Holders
of such Class of Certificates, pro rata, based on their Certificate Principal
Amounts, and will not be made in integral multiples of $1,000 or pursuant to
requested distributions or mandatory distributions by random lot.
(g) In the event that Definitive Certificates representing any Class
of Redemption Certificates are issued pursuant to Section 3.09(c), all
requests for distributions or withdrawals of such requests relating to such
Class must be submitted to the Trustee, and the Trustee shall perform the
functions described in Section 5.06(a) through (c) using its own procedures,
which procedures shall, to the extent practicable, be consistent with the
procedures described in Section 5.06(a) through (c).
Section 5.07. The Class 2-A5 Certificate Insurance Policy. (a) If, on
the second Business Day before any Distribution Date, the Securities
Administrator determines that an Insured Payment is required to be made by the
Class 2-A5 Certificate Insurer on such Distribution Date, the Securities
Administrator shall determine the amount of any such Insured Payment and shall
give written notice to the Trustee and the Trustee shall give notice to the
Class 2-A5 Certificate Insurer by completing a Notice of Nonpayment in the
form of Exhibit A to the Class 2-A5 Certificate Insurance Policy and
submitting such Notice of Nonpayment by 12:00 noon, New York City time on such
second Business Day as a claim for an Insured Payment. The Trustee's
responsibility for delivering a Notice of Nonpayment to the Class 2-A5
Certificate Insurer, as provided in the preceding sentence, is limited to the
availability, timeliness and accuracy of the information provided by the
Master Servicer.
(b) In the event the Trustee receives a certified copy of an order of
the appropriate court that any scheduled payment of principal or interest on a
Class 2-A5 Certificate has been voided in whole or in part as a preference
payment under applicable bankruptcy law, the Trustee shall promptly notify in
writing the Securities Administrator and the Class 2-A5 Certificate Insurer,
as appropriate, and the Fiscal Agent, if any, and the Trustee shall comply
with the provisions of the Class 2-A5 Certificate Insurance Policy to obtain
payment by the Class 2-A5 Certificate Insurer of such voided scheduled
payment. In addition, the Trustee shall mail notice to all Holders of the
Class 2-A5 Certificates so affected that, in the event that any such Holder's
scheduled payment is so recovered, such Holder will be entitled to payment
pursuant to the terms of the Class 2-A5 Certificate Insurance Policy, a copy
of which shall be made available to such Holders by the Trustee. The Trustee
shall furnish to the Class 2-A5 Certificate Insurer and the appropriate Fiscal
Agent, if any, its records listing the payments on the affected Class 2-A5
Certificates, if any, that have been made by the Trustee and subsequently
recovered from the affected Holders, and the dates on which such payments were
made by the Trustee.
(c) At the time of the execution hereof, and for the purposes hereof,
the Trustee shall establish a separate special purpose trust account in the
name of the Trustee for the benefit of Holders of the Class 2-A5 Certificates
(the "Class 2-A5 Policy Payments Account") over which the Trustee shall have
exclusive control and sole right of withdrawal. The Class 2-A5 Policy Payments
Account shall be an Eligible Account. The Trustee shall deposit any amount
paid under the Class 2-A5 Certificate Insurance Policy into the Class 2-A5
Policy Payments Account and distribute such amount only for the purposes of
making payments to Holders of the Class 2-A5 Certificates in respect of the
Class 2-A5 Guaranteed Distributions (or other amounts payable pursuant to
paragraph (b) above on the Class 2-A5 Certificates by the Class 2-A5
Certificate Insurer pursuant to the Class 2-A5 Certificate Insurance Policy)
for which the related claim was made under the Class 2-A5 Policy. Such amounts
shall be allocated by the Trustee to Holders of Class 2-A5 Certificates
affected by such shortfalls in the same manner as principal and interest
distributions are to be allocated with respect to such Certificates pursuant
to Section 5.02. It shall not be necessary for such payments to be made by
checks or wire transfers separate from the checks or wire transfers used to
make regular payments hereunder with funds withdrawn from the Certificate
Account. However, any payments made on the Class 2-A5 Certificates from funds
in the Class 2-A5 Policy Payments Account shall be noted as provided in
subsection (e) below. Funds held in the Class 2-A5 Policy Payments Account
shall not be invested by the Trustee.
(d) Any funds received from the Class 2-A5 Certificate Insurer for
deposit into the Class 2-A5 Policy Payments Account pursuant to the Class 2-A5
Certificate Insurance Policy in respect of a Distribution Date or otherwise as
a result of any claim under such Class 2-A5 Certificate Insurance Policy shall
be applied by the Trustee directly to the payment in full (i) of the Insured
Payments due on such Distribution Date on the Class 2-A5 Certificates, or (ii)
of other amounts to which payments under the Class 2-A5 Certificate Insurance
Policy are to be applied. Funds received by the Trustee as a result of any
claim under the Class 2-A5 Certificate Insurance Policy shall be used solely
for payment to the Holders of the Class 2-A5 Certificates and may not be
applied for any other purpose, including, without limitation, satisfaction of
any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds
remaining in the Class 2-A5 Policy Payments Account on the first Business Day
after each Distribution Date shall be remitted promptly to the Class 2-A5
Certificate Insurer pursuant to the written instruction of the Class 2-A5
Certificate Insurer.
(e) Each of the Trustee and the Securities Administrator shall keep
complete and accurate records in respect of (i) all funds remitted to the
Trustee by the Class 2-A5 Certificate Insurer and deposited into the Class
2-A5 Policy Payments Account and (ii) the allocation of such funds to (A)
payments of interest on and principal in respect of any Class 2-A5
Certificates, (B) Realized Losses allocated to the Class 2-A5 Certificates,
(C) Net Prepayment Interest Shortfalls and Relief Act Reductions allocated to
the Class 2-A5 Certificates, and (D) payments in respect of Preference
Amounts. The Class 2-A5 Certificate Insurer shall have the right to inspect
such records at reasonable times during normal business hours upon three
Business Days' prior notice to the Trustee and the Securities Administrator.
Any Insured Payments disbursed by the Trustee from proceeds of the Class 2-A5
Certificate Insurance Policy shall be considered payment by the Class 2-A5
Certificate Insurer and not by the Trust Fund with respect to the Class 2-A5
Certificates and the Class 2-A5 Certificates Insurer will be entitled to
receive the related Reimbursement Amount pursuant to Section 5.02(a)(vi).
(f) The Trustee acknowledges, and each Holder of a Class 2-A5
Certificate by its acceptance of such Class 2-A5 Certificate agrees, that,
without the need for any further action on the part of the Class 2-A5
Certificate Insurer or the Trustee, to the extent the Class 2-A5 Certificate
Insurer makes Insured Payments, directly or indirectly, on account of
principal of or interest on any Class 2-A5 Certificates, the Class 2-A5
Certificate Insurer will be fully subrogated to the rights of the Holders of
such Class 2-A5 Certificates to receive the related Reimbursement Amount
pursuant to Section 5.02(a)(vi). The Class 2-A5 Certificateholders, by
acceptance of the Class 2-A5 Certificates, assign their rights as Holders of
the Class 2-A5 Certificates to the extent of the Class 2-A5 Certificate
Insurer's interest with respect to amounts paid under the Class 2-A5
Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such
subrogation and, further agrees to execute such instruments and to take such
actions as, in the sole judgment of the Class 2-A5 Certificate Insurer are
necessary to evidence such subrogation and, subject to the priority of payment
provisions of this Agreement, to perfect the rights of the Class 2-A5
Certificate Insurer to receive any moneys paid or payable in respect of the
Class 2-A5 Certificates under this Agreement or otherwise. Anything herein to
the contrary notwithstanding, solely for purposes of determining the Class
2-A5 Certificate Insurer's rights as subrogee for payments distributable
pursuant to Section 5.02, any payment with respect to distributions to the
Class 2-A5 Certificates that is made with funds received pursuant to the terms
of the Class 2-A5 Certificate Insurance Policy shall not be considered payment
of the Class 2-A5 Certificates from the Trust Fund and shall not result in the
distribution or the provision for the distribution in reduction of the Class
Principal Amount of the Class 2-A5 Certificates or Accrued Certificate
Interest thereon, within the meaning of Article V.
(g) Upon its becoming aware of the occurrence of an Event of Default,
the Trustee shall promptly notify the Class 2-A5 Certificate Insurer of such
Event of Default.
(h) The Trustee shall promptly notify the Securities Administrator
and the Class 2-A5 Certificate Insurer of either of the following as to which
it has actual knowledge: (A) the commencement of any proceeding by or against
the Depositor commenced under the United States bankruptcy code or any other
applicable bankruptcy, insolvency, receivership, rehabilitation or similar law
(an "Insolvency Proceeding") and (B) the making of any claim in connection
with any Insolvency Proceeding seeking the avoidance as a preferential
transfer (a "Preference Claim") of any distribution made with respect to the
Class 2-A5 Certificates. Each Holder of a Class 2-A5 Certificate, by its
purchase of Class 2-A5 Certificates, and the Trustee hereby agree that the
Class 2-A5 Certificate Insurer (so long as no the Class 2-A5 Certificate
Insurer Default exists) may at any time during the continuation of any
proceeding relating to a Preference Claim direct all matters relating to such
Preference Claim, including, without limitation, (i) the direction of any
appeal of any order relating to any Preference Claim and (ii) the posting of
any surety, supersedeas or performance bond pending any such appeal. In
addition and without limitation of the foregoing, the Class 2-A5 Certificate
Insurer shall be subrogated to the rights of the Trustee and each Holder of a
Class 2-A5 Certificate in the conduct of any Preference Claim, including,
without limitation, all rights of any party to an adversary proceeding action
with respect to any court order issued in connection with any such Preference
Claim.
(i) The Trustee shall surrender the Class 2-A5 Certificate Insurance
Policy to the Class 2-A5 Certificate Insurer for cancellation upon the
termination of the Trust Fund pursuant to Section 7.01 hereof.
Article VI
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR;
EVENTS OF DEFAULT
Section 6.01. Duties of Trustee and Securities Administrator. (a) The
Trustee, except during the continuance of an Event of Default (of which a
Responsible Officer of the Trustee shall have actual knowledge), and the
Securities Administrator undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement. Any permissive right
of the Trustee or the Securities Administrator provided for in this Agreement
shall not be construed as a duty of the Trustee or the Securities
Administrator. If an Event of Default (of which a Responsible Officer of the
Trustee shall have actual knowledge) has occurred and has not otherwise been
cured or waived, the Trustee shall exercise such of the rights and powers
vested in it by this Agreement and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs unless the Trustee
is acting as Master Servicer, in which case it shall use the same degree of
care and skill as the Master Servicer hereunder.
(b) Each of the Trustee and the Securities Administrator, upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee or the
Securities Administrator which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that neither the Trustee nor the Securities Administrator shall be responsible
for the accuracy or content of any such resolution, certificate, statement,
opinion, report, document, order or other instrument furnished by the Master
Servicer, to the Trustee or the Securities Administrator, as applicable,
pursuant to this Agreement, and neither the Trustee nor the Securities
Administrator shall be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator pursuant
to this Agreement.
(c) Neither the Trustee nor the Securities Administrator shall have
any liability arising out of or in connection with this Agreement, except for
its negligence or willful misconduct. No provision of this Agreement shall be
construed to relieve the Trustee or the Securities Administrator from
liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that:
(i) Neither the Trustee nor the Securities Administrator shall
be personally liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the
consent or direction of Holders of Certificates as provided in
Section 6.19 hereof;
(ii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default (other than
resulting from a failure by the Master Servicer (i) to remit funds
(or to make Advances) or (ii) to furnish information to the Trustee
when required to do so) unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Holders of the
Certificates and this Agreement;
(iii) For all purposes under this Agreement, the Securities
Administrator shall not be deemed to have notice of any Event of
Default (other than resulting from a failure by the Master Servicer
to furnish information to the Securities Administrator when required
to do so) unless a Responsible Officer of the Securities
Administrator has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by the
Securities Administrator at the address provided in Section 11.07,
and such notice references the Holders of the Certificates and this
Agreement; and
(iv) No provision of this Agreement shall require the Trustee or
the Securities Administrator to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee or
the Securities Administrator to perform, or be responsible for the
manner of performance of, any of the obligations of the Master
Servicer under this Agreement except, with respect to the Trustee,
during such time, if any, as the Trustee shall be the successor to,
and be vested with the rights, duties, powers and privileges of, the
Master Servicer in accordance with the terms of this Agreement.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer upon receipt any such complaint, claim, demand, notice or other
document (i) which is delivered to the Corporate Trust Office of the Trustee,
(ii) of which a Responsible Officer has actual knowledge, and (iii) which
contains information sufficient to permit the Trustee to make a determination
that the real property to which such document relates is a Mortgaged Property.
(e) Neither the Trustee nor the Securities Administrator shall be
personally liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction of
Certificateholders of any Class holding Certificates which evidence, as to
such Class, Percentage Interests aggregating not less than 25% as to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or the Securities Administrator, as applicable, or exercising any
trust or power conferred upon the Trustee or the Securities Administrator, as
applicable, under this Agreement.
(f) The Trustee shall not be held liable by reason of any
insufficiency in any account (including without limitation the Collection
Account and the Securities Administrator Account) held by or on behalf of the
Trustee resulting from any investment loss on any Eligible Investment included
therein (except to the extent that the Trustee is the obligor and has
defaulted thereon).
(g) Except as otherwise provided herein, neither the Securities
Administrator nor the Trustee shall have any duty (A) to see to any recording,
filing, or depositing of this Agreement or any agreement referred to herein or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any re-recording, re-filing or re-depositing of any thereof,
(B) to see to any insurance, (C) to see to the payment or discharge of any
tax, assessment, or other governmental charge or any lien or encumbrance of
any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Collection Account or the
Certificate Account, or (D) to confirm or verify the contents of any reports
or certificates of the Master Servicer delivered to the Trustee pursuant to
this Agreement believed by the Trustee or the Securities Administrator , as
applicable, to be genuine and to have been signed or presented by the proper
party or parties.
(h) Neither the Securities Administrator nor the Trustee shall be
liable in its individual capacity for an error of judgment made in good faith
by a Responsible Officer or other officers of the Trustee or the Securities
Administrator, as applicable, unless it shall be proved that the Trustee or
the Securities Administrator, as applicable, was negligent in ascertaining the
pertinent facts.
(i) Notwithstanding anything in this Agreement to the contrary,
neither the Securities Administrator nor the Trustee shall be liable for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits), even if the Trustee or the
Securities Administrator, as applicable, has been advised of the likelihood of
such loss or damage and regardless of the form of action.
(j) Neither the Securities Administrator nor the Trustee shall be
responsible for the acts or omissions of the other, it being understood that
this Agreement shall not be construed to render them agents of one another.
Section 6.02. Certain Matters Affecting the Trustee and the
Securities Administrator. Except as otherwise provided in Section 6.01:
(i) Each of the Trustee and the Securities Administrator may
request, and may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate, certificate
of auditors, Opinion of Counsel or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) Each of the Trustee and the Securities Administrator may
consult with counsel and any advice of its counsel or Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall
be personally liable for any action taken, suffered or omitted by it
in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, neither the Trustee nor the Securities Administrator
shall be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document (provided the same appears regular on its
face), unless requested in writing to do so by Holders of at least a
majority in Class Principal Amount (or Class Notional Amount) of each
Class of Certificates; provided, however, that, if the payment within
a reasonable time to the Trustee or the Securities Administrator, as
applicable, of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee or the Securities Administrator, as applicable, not
reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee or the Securities
Administrator, as applicable, may require reasonable indemnity
against such expense or liability or payment of such estimated
expenses as a condition to proceeding. The reasonable expense thereof
shall be paid by the Holders requesting such investigation;
(v) Each of the Trustee and the Securities Administrator may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians, or
attorneys, which agents, custodians or attorneys shall have any and
all of the rights, powers, duties and obligations of the Trustee and
the Securities Administrator conferred on them by such appointment
provided that each of the Trustee and the Securities Administrator
shall continue to be responsible for its duties and obligations
hereunder to the extent provided herein, and provided further that
neither the Trustee nor the Securities Administrator shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by the Trustee or the
Securities Administrator, as applicable;
(vi) Neither the Trustee nor the Securities Administrator shall
be under any obligation to exercise any of the trusts or powers
vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto, in each case at the
request, order or direction of any of the Certificateholders pursuant
to the provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee or the Securities Administrator, as
applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
(vii) The right of the Trustee and the Securities Administrator
to perform any discretionary act enumerated in this Agreement shall
not be construed as a duty, and neither the Trustee nor the
Securities Administrator shall be answerable for other than its
negligence or willful misconduct in the performance of such act; and
(viii) Neither the Trustee nor the Securities Administrator
shall be required to give any bond or surety in respect of the
execution of the Trust Fund created hereby or the powers granted
hereunder.
Section 6.03. Trustee Not Liable for Certificates. The Trustee makes
no representations as to the validity or sufficiency of this Agreement, the
Class 2-A5 Certificate Insurance Policy or of the Certificates (other than the
certificate of authentication on the Certificates) or of any Mortgage Loan, or
related document save that the Trustee 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
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 and Securities
Administrator. Each of the Trustee and the Securities Administrator hereunder
shall at all times be (i) an institution insured by the FDIC and (ii) a
corporation or national banking association, organized and doing business
under the laws of any State or the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or national banking
association publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, the combined capital and surplus of
such corporation or national banking association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time either the Trustee or the
Securities Administrator shall cease to be eligible in accordance with
provisions of this Section, the Trustee or the Securities Administrator, as
applicable, shall resign immediately in the manner and with the effect
specified in Section 6.06.
Section 6.06. Resignation and Removal of Trustee and Securities
Administrator. (a) Each of the Trustee and the Securities Administrator may at
any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Trustee or the Securities Administrator, as
applicable, the Depositor and the Master Servicer. Upon receiving such notice
of resignation, the Depositor will promptly appoint a successor trustee or
successor Securities Administrator, as applicable, by written instrument, one
copy of which instrument shall be delivered to the resigning Trustee or
resigning Securities Administrator, as applicable, one copy to the successor
trustee or successor Securities Administrator, as applicable, one copy to the
Master Servicer and one copy to the Class 2-A5 Certificate Insurer. If no
successor trustee or successor Securities Administrator, as applicable, shall
have been so appointed and shall have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Trustee or
resigning Securities Administrator, as applicable, may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) either the Trustee or the Securities
Administrator shall cease to be eligible in accordance with the provisions of
Section 6.05 and shall fail to resign after written request therefor by the
Depositor, (ii) the Trustee or the Securities Administrator shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or the Securities Administrator or of either of their
property shall be appointed, or any public officer shall take charge or
control of the Trustee or the Securities Administrator or of either of their
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii) a tax is imposed or threatened with respect to the Trust
Fund by any state in which the Trustee or the Trust Fund held by the Trustee
is located, or (iv) the continued use of the Trustee or the Securities
Administrator would result in a downgrading of the rating by the Rating
Agencies of any Class of Certificates with a rating (in the case of the Class
2-A5 Certificates, determined without regard to the Class 2-A5 Certificate
Insurance Policy), then the Depositor shall remove the Trustee or the
Securities Administrator, as applicable, and appoint a successor trustee or
successor Securities Administrator, as applicable, by written instrument, one
copy of which instrument shall be delivered to the Trustee or Securities
Administrator, as applicable, so removed, one copy to the successor trustee or
the successor Securities Administrator, as applicable, one copy to the Class
2-A5 Certificate Insurer and one copy to the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates may at any time upon 30
days' written notice to the Trustee, the Securities Administrator, the
Depositor and the Class 2-A5 Certificate Insurer remove the Trustee or the
Securities Administrator by such written instrument, signed by such Holders or
their attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee or Securities
Administrator, as applicable, so removed, one copy to the Class 2-A5
Certificate Insurer and one copy to the Master Servicer; the Depositor shall
thereupon use its best efforts to appoint a mutually acceptable successor
trustee or successor Securities Administrator, as applicable, in accordance
with this Section.
(d) Any resignation or removal of the Trustee or Securities
Administrator and appointment of a successor trustee or successor Securities
Administrator pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee or the
successor Securities Administrator, as applicable, as provided in Section
6.07.
Section 6.07. Successor Trustee and Successor Securities
Administrator. (a) Any successor trustee or successor Securities Administrator
appointed as provided in Section 6.06 shall execute, acknowledge and deliver
to the Depositor, the Master Servicer and to its predecessor trustee or
predecessor Securities Administrator, as applicable, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee or predecessor Securities Administrator, as applicable,
shall become effective and such successor trustee or successor Securities
Administrator, as applicable, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations
of its predecessor hereunder, with like effect as if originally named as
trustee or securities administrator, as applicable, herein. The predecessor
trustee or predecessor Securities Administrator, as applicable, shall deliver
to the successor trustee or Securities Administrator, as applicable, all
Mortgage Files and documents and statements related to each Mortgage Files
held by it hereunder, and shall duly assign, transfer, deliver and pay over to
the successor trustee the entire Trust Fund, together with all necessary
instruments of transfer and assignment or other documents properly executed
necessary to effect such transfer and such of the record or copies thereof
maintained by the predecessor trustee in the administration hereof as may be
requested by the successor trustee and shall thereupon be discharged from all
duties and responsibilities under this Agreement. In addition, the Master
Servicer and the predecessor trustee or predecessor Securities Administrator,
as applicable, shall execute and deliver such other instruments and do such
other things as may reasonably be required to more fully and certainly vest
and confirm in the successor trustee or Securities Administrator, as
applicable all such rights, powers, duties and obligations.
(b) No successor trustee or securities administrator, as applicable,
shall accept appointment as provided in this Section unless at the time of
such appointment such successor trustee or securities administrator, as
applicable, shall be eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee or
successor Securities Administrator, as applicable, as provided in this
Section, the Master Servicer shall mail notice of the succession of such
trustee or securities administrator, as applicable, hereunder to the Class
2-A5 Certificate Insurer and to all Holders of Certificates at their addresses
as shown in the Certificate Register and to the Rating Agencies. The expenses
of such mailing shall be borne by the Master Servicer.
Section 6.08. Merger or Consolidation of Trustee or Securities
Administrator. Any Person into which the Trustee or Securities Administrator
may be merged or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Trustee or
Securities Administrator shall be a party, or any Persons succeeding to the
business of the Trustee or the Securities Administrator, shall be the
successor to the Trustee or the Securities Administrator hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding, provided
that such Person shall be eligible under the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian. (a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Principal Amount (or Class Notional Amount) of each Class of
Certificates shall each have the power from time to time to appoint one or
more Persons to act either as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan
outside the state where the Trustee has its principal place of business where
such separate trustee or co-trustee is necessary or advisable (or the Trustee
has been advised by the Master Servicer that such separate trustee or
co-trustee is necessary or advisable) under the laws of any state in which a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders and shall have such powers, rights and remedies as
shall be specified in the instrument of appointment; provided, however, that
no such appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee. The obligation of the Trustee to make Advances pursuant
to Section 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of moneys
shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee,
co-trustee, or custodian jointly, except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be
performed the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations, including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing more than
50% of the Aggregate Voting Interests of the Certificates may at any
time accept the resignation of or remove any separate trustee,
co-trustee or custodian, so appointed by it or them, if such
resignation or removal does not violate the other terms of this
Agreement.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. The Trustee shall
not be responsible for any action or inaction of any separate trustee,
co-trustee or custodian. If any separate trustee, co-trustee or custodian
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 6.12 hereof (which compensation shall not reduce any compensation
payable to the Trustee under such Section).
Section 6.10. Authenticating Agents. (a) The Trustee may appoint one
or more Authenticating Agents which shall be authorized to act on behalf of
the Trustee in authenticating Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.10. No Authenticating Agent shall have
responsibility or liability for any action taken by it as such at the
direction of the Trustee. Any Authenticating Agent shall be entitled to
reasonable compensation for its services and, if paid by the Trustee, it shall
be a reimbursable expense pursuant to Section 6.12.
Section 6.11. Indemnification of Trustee and Securities
Administrator. The Trustee and the Securities Administrator and their
respective directors, officers, employees and agents shall be entitled to
indemnification from the Trust Fund for any loss, liability or expense
incurred without negligence or willful misconduct on their part, arising out
of, or in connection with, the acceptance or administration of the trusts
created hereunder or in connection with the performance of their duties
hereunder, including any applicable fees and expenses payable pursuant to
Section 6.12 and the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder, provided that:
(i) with respect to any such claim, the Trustee or the
Securities Administrator, as applicable, shall have given the
Depositor, the Master Servicer and the Holders written notice thereof
promptly after the Trustee or the Securities Administrator, as
applicable, shall have knowledge thereof; provided that failure to so
notify shall not relieve the Trust Fund of the obligation to
indemnify the Trustee or the Securities Adminsitrator;
(ii) while maintaining control over its own defense, the Trustee
or the Securities Administrator, as applicable, shall cooperate and
consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section
6.11, the Trust Fund shall not be liable for settlement of any such
claim by the Trustee or the Securities Administrator, as applicable,
entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee or the Securities
Administrator, as applicable, and shall be construed to include, but not be
limited to any loss, liability or expense under any environmental law.
Section 6.12. Fees and Expenses of Securities Administrator,
Custodian and Trustee. The Securities Administrator shall be entitled to (a)
the Securities Administrator Fee, and is authorized to instruct the Trustee in
writing to pay to the Securities Administrator the amount of income or gain
earned from the investment of funds in the Certificate Account, and (b) all
reasonable expenses, disbursements and advancements incurred or made the
Securities Administrator in accordance with this Agreement (including fees and
expenses of its counsel and all persons not regularly in its employment),
except any such expenses arising from its negligence, bad faith or willful
misconduct. The Trustee and the Custodian shall be compensated as separately
agreed with the Securities Administrator and the Master Servicer.
Section 6.13. Collection of Monies. Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold
all such money and property received by it as part of the Trust Fund and shall
distribute it as provided in this Agreement. If the Trustee shall not have
timely received amounts to be remitted with respect to the Mortgage Loans from
the Master Servicer, the Trustee shall request the Master Servicer to make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amount, it may withdraw such
request.
Section 6.14. Events of Default; Trustee To Act; Appointment of
Successor. (a) The occurrence of any one or more of the following events shall
constitute an "Event of Default":
(i) Any failure by the Master Servicer to furnish the Securities
Administrator the Mortgage Loan data sufficient to prepare the
reports described in Section 4.03(a) which continues unremedied for a
period of one Business Day after the date upon which written notice
of such failure shall have been given to such Master Servicer by the
Trustee or the Securities Administrator or to such Master Servicer,
the Securities Administrator and the Trustee by the Holders of not
less than 25% of the Class Principal Amount (or Class Notional
Amount) of each Class of Certificates affected thereby; or
(ii) Any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants
or agreements on the part of such Master Servicer contained in this
Agreement which continues unremedied for a period of 30 days (or 15
days, in the case of a failure to maintain any Insurance Policy
required to be maintained pursuant to this Agreement) after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to such Master Servicer by the
Trustee or the Securities Administrator, or to such Master Servicer,
the Securities Administrator and the Trustee by the Holders of not
less than 25% of the Class Principal Amount (or Class Notional
Amount) of each Class of Certificates affected thereby; or
(iii) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days or
any Rating Agency reduces or withdraws or threatens to reduce or
withdraw the rating of the Certificates because of the financial
condition or loan servicing capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities, voluntary liquidation
or similar proceedings of or relating to such Master Servicer or of
or relating to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose of
all or substantially all of its assets, or consolidate with or merge
into another entity or shall permit another entity to consolidate or
merge into it, such that the resulting entity does not meet the
criteria for a successor servicer as specified in Section 9.27
hereof; or
(vii) If a representation or warranty set forth in Section 9.14
hereof shall prove to be incorrect as of the time made in any respect
that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have
been eliminated or cured within 60 days after the date on which
written notice of such incorrect representation or warranty shall
have been given to the Master Servicer by the Trustee or the
Securities Administrator, or to the Master Servicer, the Securities
Administrator and the Trustee by the Holders of not less than 25% of
the Aggregate Certificate Principal Amount of each Class of
Certificates; or
(viii) A sale or pledge of the any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master
Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the
Trustee and Certificateholders holding more than 50% of the Class
Principal Amount (or Class Notional Amount) of each Class of
Certificates;
(ix) Any Servicer at any time is not either an FNMA- or FHLMC-
approved Seller/Servicer, and the Master Servicer has not terminated
the rights and obligations of such Servicer under the applicable
Servicing Agreement and replaced such Servicer with an FNMA- or
FHLMC-approved servicer within 30 days of the absence of such
approval; or
(x) Any failure of the Master Servicer to remit to the Trustee
any payment required to be made to the Trustee for the benefit of
Certificateholders under the terms of this Agreement, including any
Advance, on any Master Servicer Remittance Date.
If an Event of Default described in clauses (i) through (ix) of this
Section 6.14 shall occur, then, in each and every case, subject to applicable
law, so long as any such Event of Default shall not have been remedied within
any period of time prescribed by this Section 6.14, the Trustee, by notice in
writing to the Master Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates, terminate all of the
rights and obligations of the Master Servicer hereunder and in and to the
Mortgage Loans and the proceeds thereof. If an Event of Default described in
clause (x) of this Section 6.14 shall occur, then, in each and every case,
subject to applicable law, the Trustee, by notice in writing to the Master
Servicer, shall promptly terminate all of the rights and obligations of the
Master Servicer hereunder and in and to the Mortgage Loans and the proceeds
thereof. On or after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer, and only in its
capacity as Master Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under the terms of this Agreement; and the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the defaulting
Master Servicer as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage Loans
and related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the defaulting
Master Servicer's responsibilities and rights hereunder as Master Servicer
including, without limitation, notifying Mortgagors of the assignment of the
master servicing function and providing the Trustee or its designee all
documents and records in electronic or other form reasonably requested by it
to enable the Trustee or its designee to assume the defaulting Master
Servicer's functions hereunder and the transfer to the Trustee for
administration by it of all amounts which shall at the time be or should have
been deposited by the defaulting Master Servicer in the Collection Account
maintained by such defaulting Master Servicer and any other account or fund
maintained with respect to the Certificates or thereafter received with
respect to the Mortgage Loans. The Master Servicer being terminated shall bear
all costs of a master servicing transfer, including but not limited to those
of the Trustee reasonably allocable to specific employees and overhead, legal
fees and expenses, accounting and financial consulting fees and expenses, and
costs of amending the Agreement, if necessary.
Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
to the extent provided in Section 4.02(i), (ii), (iii), (iv), (v), (vi),
(vii), (ix) and (xi) to the extent such reimbursement relates to the period
prior to such Master Servicer's termination.
If any Event of Default shall occur, the Trustee shall promptly
notify the Securities Administrator, the Class 2-A5 Certificate Insurer and
the Rating Agencies of the nature and extent of such Event of Default. The
Trustee or the Securities Administrator shall immediately give written notice
to the Master Servicer upon such Master Servicer's failure to remit funds on
the Master Servicer Remittance Date.
(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.29, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the
Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer
hereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no responsibility for any act or omission of the Master Servicer
prior to the issuance of any notice of termination and shall have no liability
relating to the representations and warranties of the Master Servicer set
forth in Section 9.14. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability herein granted to the
Master Servicer. As compensation therefor, the Trustee shall be entitled to
receive all compensation payable to the Master Servicer under this Agreement,
including the Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer as are set
forth in this Agreement, as the successor to such Master Servicer in the
assumption of all of the responsibilities, duties or liabilities of a master
servicer, like the Master Servicer. Any entity designated by the Trustee as a
successor master servicer may be an Affiliate of the Trustee; provided,
however, that, unless such Affiliate meets the net worth requirements and
other standards set forth herein for a successor master servicer, the Trustee,
in its individual capacity shall agree, at the time of such designation, to be
and remain liable to the Trust Fund for such Affiliate's actions and omissions
in performing its duties hereunder. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess
of that permitted to the Master Servicer hereunder. The Trustee and such
successor shall take such actions, consistent with this Agreement, as shall be
necessary to effectuate any such succession and may make other arrangements
with respect to the servicing to be conducted hereunder which are not
inconsistent herewith. The Master Servicer shall cooperate with the Trustee
and any successor master servicer in effecting the termination of the Master
Servicer's responsibilities and rights hereunder including, without
limitation, notifying Mortgagors of the assignment of the master servicing
functions and providing the Trustee and successor master servicer, as
applicable, all documents and records in electronic or other form reasonably
requested by it to enable it to assume the Master Servicer's functions
hereunder and the transfer to the Trustee or such successor master servicer,
as applicable, all amounts which shall at the time be or should have been
deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received with respect to the Mortgage Loans. Neither the Trustee nor any other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Master Servicer to
deliver, or any delay in delivering, cash, documents or records to it, (ii)
the failure of the Master Servicer to cooperate as required by this Agreement,
(iii) the failure of the Master Servicer to deliver the Mortgage Loan data to
the Securities Administrator as required by this Agreement or (iv)
restrictions imposed by any regulatory authority having jurisdiction over the
Master Servicer.
Section 6.15. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
and the Class 2-A5 Certificate Insurer (including the institution and
prosecution of all judicial, administrative and other proceedings and the
filings of proofs of claim and debt in connection therewith). Except as
otherwise expressly provided in this Agreement, no remedy provided for by this
Agreement shall be exclusive of any other remedy, and each and every remedy
shall be cumulative and in addition to any other remedy, and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Event of Default.
Section 6.16. Waiver of Defaults. 35% or more of the Aggregate Voting
Interests of Certificateholders may waive any default or Event of Default by
the Master Servicer in the performance of its obligations hereunder, except
that a default in the making of any required deposit to the Certificate
Account that would result in a failure of the Trustee to make any required
payment of principal of or interest on the Certificates may only be waived
with the consent of 100% of the affected Certificateholders. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 6.17. Notification to Holders. Upon termination of the Master
Servicer or appointment of a successor to the Master Servicer, in each case as
provided herein, the Trustee shall promptly mail notice thereof by first class
mail to the Securities Administrator, the Class 2-A5 Certificate Insurer and
the Certificateholders at their respective addresses appearing on the
Certificate Register. The Trustee shall also, within 45 days after the
occurrence of any Event of Default known to the Trustee, give written notice
thereof to the Securities Administrator and Certificateholders, unless such
Event of Default shall have been cured or waived prior to the issuance of such
notice and within such 45-day period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default. Subject to the provisions of Section 8.01 hereof,
during the continuance of any Event of Default, Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Class Notional
Amount) of each Class of Certificates may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; provided, however, that the Trustee shall be under no obligation to
pursue any such remedy, or to exercise any of the trusts or powers vested in
it by this Agreement (including, without limitation, (i) the conducting or
defending of any administrative action or litigation hereunder or in relation
hereto and (ii) the terminating of the Master Servicer or any successor master
servicer from its rights and duties as master servicer hereunder) at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the cost, expenses and liabilities which may be incurred
therein or thereby; and, provided further, that, subject to the provisions of
Section 8.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee, in accordance with an Opinion of Counsel, determines
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith determines that the action or proceeding so directed
would involve it in personal liability or be unjustly prejudicial to the
non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Master Servicer and
Upon Event of Default. In the event that the Trustee shall have actual
knowledge of any action or inaction of the Master Servicer that would become
an Event of Default upon the Master Servicer's failure to remedy the same
after notice, the Trustee shall give notice thereof to the Master Servicer.
For all purposes of this Agreement, in the absence of actual knowledge by a
Responsible Officer of the Trustee, the Trustee shall not be deemed to have
knowledge of any failure of the Master Servicer or any other Event of Default
unless notified in writing by the Depositor, the Securities Administrator, the
Master Servicer or a Certificateholder.
Section 6.20. Preparation of Tax Returns and Other Reports. (a) The
Securities Administrator shall prepare or cause to be prepared on behalf of
the Trust Fund, based upon information calculated in accordance with this
Agreement pursuant to instructions given by the Depositor, and the Securities
Administrator shall file, federal tax returns. If the Trustee requests in
writing that a state tax return or other return is required, then, at the sole
expense of the Trustee, the Securities Administrator shall prepare and file
such state income tax returns and such other returns as may be required by
applicable law relating to the Trust Fund, and, if required by state law, and
shall file any other documents to the extent required by applicable state tax
law (to the extent such documents are in the Securities Administrator's
possession). The Securities Administrator shall forward copies to the
Depositor of all such returns and Form 1099 supplemental tax information and
such other information within the control of the Securities Administrator as
the Depositor may reasonably request in writing, and shall forward to the
Trustee for distribution to each Certificateholder such forms and furnish such
information within the control of the Securities Administrator as are required
by the Code and the REMIC Provisions to be furnished to them, and will prepare
and disseminate to the Trustee for distribution to Certificateholders Form
1099 (supplemental tax information) (or otherwise furnish information within
the control of the Securities Administrator and the Trustee) to the extent
required by applicable law. The Master Servicer will indemnify the Securities
Administrator and the Trustee for any liability of or assessment against the
Securities Administrator or the Trustee, as applicable, resulting from any
error in any of such tax or information returns directly resulting from errors
in the information provided by such Master Servicer.
(b) The Securities Administrator shall prepare and file with the
Internal Revenue Service ("IRS"), on behalf of the Trust Fund, an application
on IRS Form SS-4. The Securities Administrator, upon receipt from the IRS of
the Notice of Taxpayer Identification Number Assigned, shall promptly forward
a copy of such notice to the Master Servicer, the Securities Administrator,
the Trustee and the Depositor.
(c) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K. Thereafter, within 15 days after each Distribution
Date, the Securities Administrator shall, in accordance with industry
standards, file with the Securities and Exchange Commission (the "Commission")
via the Electronic Data Gathering and Retrieval System (▇▇▇▇▇), a Form 8-K
with a copy of the statement to the Certificateholders for such Distribution
Date as an exhibit thereto. Prior to January 30, 2001, the Securities
Administrator shall, in accordance with industry standards, file a Form 15
Suspension Notification with respect to the Trust Fund, if applicable. Prior
to March 30, 2001, the Securities Administrator shall file a Form 10-K, in
substance conforming to industry standards, with respect to the Trust Fund.
The Depositor hereby grants to the Securities Administrator a limited power of
attorney to execute and file each such document on behalf of the Depositor.
Such power of attorney shall continue until either the earlier of (i) receipt
by the Securities Administrator from the Depositor of written termination of
such power of attorney and (ii) the termination of the Trust Fund. The
Depositor agrees to promptly furnish to the Securities Administrator, from
time to time upon request, such further information, reports, and financial
statements within its control related to this Agreement and the Mortgage Loans
as the Securities Administrator reasonably deems appropriate to prepare and
file all necessary reports with the Commission. The Securities Administrator
shall have no responsibility to file any items other than those specified in
this section.
Article VII
PURCHASE AND TERMINATION
OF THE TRUST FUND
Section 7.01. Termination of Trust Fund Upon Repurchase or
Liquidation of All Mortgage Loans. (a) The respective obligations and
responsibilities of the Trustee, the Securities Administrator and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as set forth in Section 7.02, the obligation of
the Master Servicer to make a final remittance to the 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 earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. James's,
living on the date hereof, and (ii) the Latest Possible Maturity Date. Any
termination of the Trust Fund shall be carried out in such a manner so that
the termination of each REMIC included therein shall qualify as a "qualified
liquidation" under the REMIC Provisions.
(b) On any Distribution Date occurring after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans is less than 10%
of the Cut-off Date Aggregate Principal Balance, the Depositor may, upon
written direction to the Trustee with a copy to the Securities Administrator,
cause (i) the Trustee to sell (or arrange for the sale of) the assets of the
Trust Fund and (ii) the Trust Fund to adopt a plan of complete liquidation
pursuant to Section 7.03(a)(i) hereof to sell all of its property. The
property of the Trust Fund shall be sold at a price (the "Termination Price")
equal to: (i) 100% of the unpaid principal balance of each Mortgage Loan on
the day of such purchase plus interest accrued thereon at the applicable
Mortgage Rate with respect to any Mortgage Loan to the Due Date in the Due
Period immediately preceding the related Distribution Date to the date of such
repurchase, (ii) the fair market value of any REO Property and any other
property held by any REMIC, such fair market value to be determined by an
appraiser or appraisers appointed by the Master Servicer with the consent of
the Trustee, (iii) any unreimbursed Servicing Advances with respect to each
Mortgage Loan, and (iv) any Reimbursement Amounts due to the Class 2-A5
Certificate Insurer.
Section 7.02. Procedure Upon Termination of Trust Fund. (a) Notice of
any termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to Certificateholders mailed
(x) no later than five Business Days after the Trustee has received notice
from the Depositor of its intent to exercise its right to cause the
termination of the Trust Fund pursuant to Section 7.01(b) or (y) upon the
final payment or other liquidation of the last Mortgage Loan or REO Property
in the Trust Fund. Such notice shall specify (A) the Distribution Date upon
which final distribution on the Certificates of all amounts required to be
distributed to Certificateholders pursuant to Section 5.02 will be made upon
presentation and surrender of the Certificates at the Corporate Trust Office,
and (B) that the Record Date otherwise applicable to such Distribution Date is
not applicable, distribution being made only upon presentation and surrender
of the Certificates at the office or agency of the Trustee therein specified.
The Trustee shall give such notice to the Securities Administrator, the Master
Servicer and the Certificate Registrar at the time such notice is given to
Holders of the Certificates. Upon any such termination, the duties of the
Certificate Registrar with respect to the Certificates shall terminate and the
Trustee shall terminate, or request the Master Servicer to terminate, the
Collection Account it maintains, the Certificate Account and any other account
or fund maintained with respect to the Certificates, subject to the Trustee's
obligation hereunder to hold all amounts payable to Certificateholders in
trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Trustee
shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to
a Certificateholder due to such Certificateholder's failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with this Section.
(c) Any reasonable expenses incurred by the Trustee and the
Securities Administrator in connection with any termination or liquidation of
the Trust Fund shall be reimbursed from proceeds received from the liquidation
of the Trust Fund.
Section 7.03. Additional Trust Fund Termination Requirements. (a) Any
termination of the Trust Fund shall be effected in accordance with the
following additional requirements, unless the Trustee seeks (at the request of
the Master Servicer), and subsequently receives, an Opinion of Counsel (at the
expense of the Master Servicer), addressed to the Trustee to the effect that
the failure of the Trust Fund to comply with the requirements of this Section
7.03 will not (i) result in the imposition of taxes on any REMIC under the
REMIC Provisions or (ii) cause any REMIC established hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) The Trustee shall sell all of the assets of the Trust Fund
for cash and, within 90 days of such sale, shall distribute the
proceeds of such sale to the Certificateholders in complete
liquidation of the Trust Fund, the Lower Tier REMIC and the Upper
Tier REMIC; and
(ii) The Trustee shall attach a statement to the final Federal
income tax return for each of the Lower Tier REMIC and the Upper Tier
REMIC stating that pursuant to Treasury Regulation ss. 1.860F-1, the
first day of the 90-day liquidation period for each such REMIC was
the date on which the Trustee sold the assets of the Trust Fund.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take the action described in paragraph
(a) above and (ii) agrees to take such other action as may be necessary to
facilitate liquidation of each REMIC created under this Agreement, which
authorization shall be binding upon all successor Residual Certificateholders.
Article VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders. (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of this Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder,
shall have any right to vote or in any manner otherwise control the Master
Servicer or the operation and management of the Trust Fund, or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association,
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing not less than 25% of the
Class Principal Amount (or Class Notional Amount) of Certificates of each
Class shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
cost, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for sixty days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding and no direction inconsistent with such written request has been
given such Trustee during such sixty-day period by such Certificateholders; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing of any provision of this Agreement to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Agreement, except in
the manner herein provided and for the benefit of all Certificateholders. For
the protection and enforcement of the provisions of this Section, each and
every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 8.02. Access to List of Holders. (a) If the Trustee is not
acting as Certificate Registrar, the Certificate Registrar will furnish or
cause to be furnished to the Trustee, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such Applicants reasonable
access during the normal business hours of the Trustee to the most recent list
of Certificateholders held by the Trustee or shall, as an alternative, send,
at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Securities Administrator, the Master Servicer, the Certificate Registrar and
the Trustee that neither the Depositor, the Securities Administrator, the
Master Servicer, the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
Section 8.03. Acts of Holders of Certificates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee, the Securities
Administrator and, where expressly required herein, to the Master Servicer.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agents shall be sufficient for any purpose of
this Agreement and conclusive in favor of the Trustee, the Securities
Administrator and Master Servicer, if made in the manner provided in this
Section. Each of the Trustee, the Securities Administrator and Master Servicer
shall promptly notify the others of receipt of any such instrument by it, and
shall promptly forward a copy of such instrument to the others.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Securities Administrator,
the Master Servicer, nor the Depositor shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
Article IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer. The Certificateholders,
by their purchase and acceptance of the Certificates, appoint Aurora Loan
Services Inc., as Master Servicer. For and on behalf of the Depositor, the
Trustee and the Certificateholders, the Master Servicer shall master service
the Mortgage Loans in accordance with the provisions of this Agreement and the
provisions of the applicable Servicing Agreement.
Section 9.02. Master Servicer Fidelity Bond and Master Servicer
Errors and Omissions Insurance Policy. (a) The Master Servicer, at its
expense, shall maintain in effect a Fidelity Bond and an Errors and Omissions
Insurance Policy, affording coverage with respect to all directors, officers,
employees and other Persons acting on such Master Servicer's behalf, and
covering errors and omissions in the performance of the Master Servicer's
obligations hereunder. The Errors and Omissions Insurance Policy and the
Fidelity Bond shall be in such form and amount that would meet the
requirements of FNMA or FHLMC if it were the purchaser of the Mortgage Loans.
The Master Servicer shall (i) require each Servicer to maintain an Errors and
Omissions Insurance Policy and a Fidelity Bond in accordance with the
provisions of the applicable Servicing Agreement, (ii) cause each Servicer to
provide to the Master Servicer certificates evidencing that such policy and
bond is in effect and to furnish to the Master Servicer any notice of
cancellation, non-renewal or modification of the policy or bond received by
it, as and to the extent provided in the applicable Servicing Agreement, and
(iii) furnish copies of the certificates and notices referred to in clause
(ii) to the Trustee upon its request. The Fidelity Bond and Errors and
Omissions Insurance Policy may be obtained and maintained in blanket form.
(b) The Master Servicer shall promptly report to the Trustee any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to the
Trustee, on request, certificates evidencing that such bond and insurance
policy are in full force and effect. The Master Servicer shall promptly report
to the Trustee all cases of embezzlement or fraud, if such events involve
funds relating to the Mortgage Loans. The total losses, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed in
such reports together with the amount of such losses covered by insurance. If
a bond or insurance claim report is filed with any of such bonding companies
or insurers, the Master Servicer shall promptly furnish a copy of such report
to the Trustee. Any amounts relating to the Mortgage Loans collected by the
Master Servicer under any such bond or policy shall be promptly remitted by
the Master Servicer to the Trustee for deposit into the Certificate Account.
Any amounts relating to the Mortgage Loans collected by any Servicer under any
such bond or policy shall be remitted to the Master Servicer to the extent
provided in the applicable Servicing Agreement.
Section 9.03. Master Servicer's Financial Statements and Related
Information. For each year this Agreement is in effect, the Master Servicer
shall submit to the Trustee, each Rating Agency and the Depositor a copy of
its annual unaudited financial statements on or prior to ▇▇▇▇▇ 31 of each
year. Such financial statements shall include a balance sheet, income
statement, statement of retained earnings, statement of additional paid-in
capital, statement of changes in financial position and all related notes and
schedules and shall be in comparative form, certified by a nationally
recognized firm of Independent Accountants to the effect that such statements
were examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding year.
Section 9.04. Power to Act; Procedures. (a) The Master Servicer shall
master service the Mortgage Loans and shall have full power and authority,
subject to the REMIC Provisions and the provisions of Article X hereof, and
each Servicer shall have full power and authority (to the extent provided in
the applicable Servicing Agreement) to do any and all things that it may deem
necessary or desirable in connection with the servicing and administration of
the Mortgage Loans, including but not limited to the power and authority (i)
to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable; provided that the Master Servicer shall
not take, or knowingly permit any Servicer to take, any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee and the Certificateholders under this Agreement. The
Master Servicer 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 permit any Servicer to make any modification, waiver or
amendment of any term of any Mortgage Loan that would cause the Trust Fund to
fail to qualify as a REMIC or result in the imposition of any tax under
Section 860F(a) or Section 860G(d) of the Code. Without limiting the
generality of the foregoing, the Master Servicer in its own name or in the
name of a Servicer, and each Servicer, to the extent such authority is
delegated to such Servicer by the Master Servicer under the applicable
Servicing Agreement, is hereby authorized and empowered by the Trustee when
the Master Servicer or a Servicer, as the case may be, believes it appropriate
in its best judgment and in accordance with Accepted Servicing Practices and
the applicable Servicing Agreement, to execute and deliver, on behalf of
itself and the Certificateholders, the Trustee or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall furnish
the Master Servicer, upon request, with any powers of attorney empowering the
Master Servicer or any Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
to foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or the
Mortgaged Property, in accordance with the applicable Servicing Agreement and
this Agreement, and the Trustee shall execute and deliver such other
documents, as the Master Servicer may request, necessary or appropriate to
enable the Master Servicer to master service and administer the Mortgage Loans
and carry out its duties hereunder, in each case in accordance with Accepted
Servicing Practices (and the Trustee shall have no liability for misuse of any
such powers of attorney by the Master Servicer or any Servicer). If the Master
Servicer or the Trustee has been advised that it is likely that the laws of
the state in which action is to be taken prohibit such action if taken in the
name of the Trustee or that the Trustee would be adversely affected under the
"doing business" or tax laws of such state if such action is taken in its
name, then upon request of the Trustee, the Master Servicer shall join with
the Trustee in the appointment of a co-trustee pursuant to Section 6.09
hereof. In the performance of its duties hereunder, the Master Servicer shall
be an independent contractor and shall not, except in those instances where it
is taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
(b) In master servicing and administering the Mortgage Loans, the
Master Servicer shall employ procedures, and shall cause each Servicer to
employ procedures (including, but not limited to, collection procedures),
consistent with the applicable Servicing Agreement. Consistent with the
foregoing, the Master Servicer may, and may permit any Servicer to, in its
discretion (i) waive any late payment charge or any prepayment charge or
penalty interest in connection with the prepayment of a Mortgage Loan and (ii)
extend the due dates for payments due on a Mortgage Note for a period not
greater than 120 days; provided, however, that the maturity of any Mortgage
Loan shall not be extended past the date on which the final payment is due on
the latest maturing Mortgage Loan as of the Cut-off Date. In the event of any
extension described in clause (ii) above, the Master Servicer shall make or
cause to be made Advances on the related Mortgage Loan in accordance with the
provisions of Section 5.04 on the basis of the amortization schedule of such
Mortgage Loan without modification thereof by reason of such extension.
Notwithstanding anything to the contrary in this Agreement, the Master
Servicer shall not, unless default by the related Mortgagor is, in the
reasonable judgment of the Master Servicer, imminent, 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 the Master Servicer shall
have provided or caused to be provided to the Trustee an Opinion of Counsel in
writing to the effect that such modification, waiver or amendment would not be
treated as giving rise to a new debt instrument for federal income tax
purposes and would not adversely affect the status of the REMIC.
Section 9.05. Servicing Agreements Between the Master Servicer and
Servicers; Enforcement of Servicers' Obligations. (a) Each Servicing Agreement
requires the applicable Servicer to service the Mortgage Loans in accordance
with the provisions thereof. References in this Agreement to actions taken or
to be taken by the Master Servicer include actions taken or to be taken by a
Servicer on behalf of the Master Servicer. Any fees and other amounts payable
to such Servicers shall be deducted from amounts remitted to the Master
Servicer by the applicable Servicer and shall not be an obligation of the
Trust.
(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, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
terminate the rights and obligations of such Servicer thereunder and either
act as servicer of the related Mortgage Loans or enter into a Servicing
Agreement with a successor Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor initially
only (i) from a general recovery resulting from such enforcement only to the
extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loans or (ii) from a specific recovery of costs, expenses or
attorneys' fees against the party against whom such enforcement is directed,
and then, to the extent that such amounts are insufficient to reimburse the
Master Servicer for the costs of such enforcement, (iii) from the Collection
Account.
Section 9.06. Collection of Taxes, Assessments and Similar Items. (a)
To the extent provided in the applicable Servicing Agreement, the Master
Servicer shall cause each Servicer to establish and maintain one or more
custodial accounts at a depository institution (which may be a depository
institution with which the Master Servicer or any Servicer establishes
accounts in the ordinary course of its servicing activities), the accounts of
which are insured to the maximum extent permitted by the FDIC (each, an
"Escrow Account") and shall deposit therein any collections of amounts
received with respect to amounts due for taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums or any comparable items for the
account of the Mortgagors. Withdrawals from any Escrow Account may be made (to
the extent amounts have been escrowed for such purpose) only in accordance
with the applicable Servicing Agreement. Each Servicer shall be entitled to
all investment income not required to be paid to Mortgagors on any Escrow
Account maintained by such Servicer. The Master Servicer shall make (or cause
to be made) to the extent provided in the applicable Servicing Agreement
advances to the extent necessary in order to effect timely payment of taxes,
water rates, assessments, Standard Hazard Insurance Policy premiums or
comparable items in connection with the related Mortgage Loan (to the extent
that the Mortgagor is required, but fails, to pay such items), provided that
it has determined that the funds so advanced are recoverable from escrow
payments, reimbursement pursuant to Section 4.02(v) or otherwise.
(b) Costs incurred by the Master Servicer or by Servicers in
effecting the timely payment of taxes and assessments on the properties
subject to the Mortgage Loans may be added to the amount owing under the
related Mortgage Note where the terms of the Mortgage Note so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders. Such costs, to the extent that they are unanticipated,
extraordinary costs, and not ordinary or routine costs shall be recoverable by
the Master Servicer pursuant to Section 4.02(v).
Section 9.07. Termination of Servicing Agreements; Successor
Servicers. (a) The Master Servicer shall be entitled to terminate the rights
and obligations of any Servicer under the applicable Servicing Agreement in
accordance with the terms and conditions of such Servicing Agreement and
without any limitation by virtue of this Agreement; provided, however, that in
the event of termination of any Servicing Agreement by the Master Servicer or
the related Servicer, the Master Servicer shall either act as Servicer of the
related Mortgage Loans, or enter into a Servicing Agreement with a successor
Servicer.
(b) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces. The Master Servicer shall use reasonable efforts to have the
successor Servicer assume liability for the representations and warranties
made by the terminated Servicer in respect of the related Mortgage Loans, and
in the event of any such assumption by the successor Servicer, the Trustee or
the Master Servicer, as applicable, may, in the exercise of its business
judgment, release the terminated Servicer from liability for such
representations and warranties.
Section 9.08. Master Servicer Liable for Enforcement. Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee and the Certificateholders in accordance with the provisions of
this Agreement, to the extent of its obligations hereunder, without diminution
of such obligation or liability by virtue of such Servicing Agreements or
arrangements. The Master Servicer shall use commercially reasonable efforts to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of this Agreement and shall use commercially reasonable efforts to enforce the
provisions of each Servicing Agreement for the benefit of the
Certificateholders. The Master Servicer shall be entitled to enter into any
agreement with the Servicers for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall have no liability for the acts or omissions of any Servicer in the
performance by such Servicer of its obligations under the related Servicing
Agreement.
Section 9.09. No Contractual Relationship Between Servicers and
Trustee, Securities Administrator or Depositor. Any Servicing Agreement that
may be entered into and any other transactions or services relating to the
Mortgage Loans involving a Servicer in its capacity as such and not as an
originator shall be deemed to be between such Servicer, the Seller and the
Master Servicer, and the Trustee, the Securities Administrator and the
Depositor shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to such Servicer
except as set forth in Section 9.10 hereof.
Section 9.10. Assumption of Servicing Agreement by Trustee. (a) In
the event the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default under this Agreement),
the Trustee shall thereupon assume all of the rights and obligations of such
Master Servicer hereunder and under each Servicing Agreement entered into with
respect to the Mortgage Loans. The Trustee, its designee or any successor
master servicer appointed by the Trustee shall be deemed to have assumed all
of the Master Servicer's interest herein and therein to the same extent as if
such Servicing Agreement had been assigned to the assuming party, except that
the Master Servicer shall not thereby be relieved of any liability or
obligations of the Master Servicer under such Servicing Agreement accruing
prior to its replacement as Master Servicer, and shall be liable to the
Trustee, and hereby agrees to indemnify and hold harmless the Trustee from and
against all costs, damages, expenses and liabilities (including reasonable
attorneys' fees) incurred by the Trustee as a result of such liability or
obligations of the Master Servicer and in connection with the Trustee's
assumption (but not its performance, except to the extent that costs or
liability of the Trustee are created or increased as a result of negligent or
wrongful acts or omissions of the Master Servicer prior to its replacement as
Master Servicer) of the Master Servicer's obligations, duties or
responsibilities thereunder; provided that the Master Servicer shall not
indemnify or hold harmless the Trustee against negligent or wrongful acts or
omissions of the Trustee.
(b) The Master Servicer that has been terminated shall, upon request
of the Trustee but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to each Servicing Agreement
and the related Mortgage Loans and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of each Servicing Agreement to the assuming party.
Section 9.11. "Due-on-Sale" Clauses; Assumption Agreements. 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 Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 9.12. Release of Mortgage Files. 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 applicable Servicer to,
promptly notify the Trustee (or the applicable Custodian) by a certification
(which certification shall include a statement to the effect that all amounts
received in connection with such payment that are required to be deposited in
the Collection Account maintained by the Master Servicer pursuant to Section
4.01 have been or will be so deposited) of a Servicing Officer and shall
request the Trustee or the applicable Custodian, to deliver to the applicable
Servicer the related Mortgage File. In lieu of sending a hard copy
certification of a Servicing Officer, the Master Servicer may, or may cause
the Servicer to, deliver the request for release in a mutually agreeable
electronic format. To the extent that such a request, on its face, originates
from a Servicing Officer, no signature shall be required. Upon receipt of two
copies of such certification and request, the Trustee or the applicable
Custodian, shall promptly release the related Mortgage File to the applicable
Servicer and neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File. 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.
(a) 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 Custodian, shall, upon request of the Master Servicer, or of a Servicer,
and delivery to the Trustee or the applicable Custodian, of a trust receipt
signed by a Servicing Officer substantially in the form annexed to the
applicable Custodial Agreement as Exhibit C, release the related Mortgage File
held in its possession or control to the Master Servicer (or the applicable
Servicer). Such trust receipt shall obligate the Master Servicer or applicable
Servicer to return the Mortgage File to the Trustee or Custodian, as
applicable, when the need therefor by the Master Servicer or applicable
Servicer no longer exists unless the Mortgage Loan shall be liquidated, in
which case, upon receipt of a certificate of a Servicing Officer similar to
that herein above specified, the trust receipt shall be released by the
Trustee or the Custodian, as applicable, to the Master Servicer (or the
applicable Servicer).
Section 9.13. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee. (a) The Master Servicer shall transmit, or
cause the applicable Servicer to transmit, to the Trustee such documents and
instruments coming into the possession of the Master Servicer or such Servicer
from time to time as are required by the terms hereof to be delivered to the
Trustee. Any funds received by the Master Servicer or by a Servicer in respect
of any Mortgage Loan or which otherwise are collected by the Master Servicer
or by a Servicer as Liquidation Proceeds or Insurance Proceeds in respect of
any Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the Master Servicer's right to retain or
withdraw from the Collection Account the Master Servicing Fee and other
amounts provided in this Agreement, and to the right of each Servicer to
retain its Servicing Fee as provided in the applicable Servicing Agreement.
The Master Servicer shall, and shall (to the extent provided in the applicable
Servicing Agreement) cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations, banks
or insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or
other regulatory authority, such access to be afforded without charge but only
upon reasonable request in writing and during normal business hours at the
offices of the Master Servicer designated by it. In fulfilling such a request
the Master Servicer shall not be responsible for determining the sufficiency
of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, or any Servicer, in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by 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 and shall
be authorized to remit such funds to the Securities Administrator in
accordance with this Agreement.
(c) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee shall own or, to the extent that
a court of competent jurisdiction shall deem the conveyance of the Mortgage
Loans from the Seller to the Depositor not to constitute a sale, the Trustee
shall have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds now or hereafter held by, or
under the control of, a Servicer or the Master Servicer that are collected by
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 its Servicing Agreement, or the Master Servicer or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so long as the Mortgage Loans are assigned to and held by the Trustee, all
documents or instruments constituting part of the Mortgage Files, and such
funds relating to the Mortgage Loans which come into the possession or custody
of, or which are subject to the control of, the Master Servicer or any
Servicer shall be held by the Master Servicer or such Servicer for and on
behalf of the Trustee as the Trustee's agent and bailee for purposes of
perfecting the Trustee's security interest therein as provided by the
applicable Uniform Commercial Code or other laws.
(d) The Master Servicer agrees that it shall not, and shall not
authorize any Servicer to, create, incur or subject any Mortgage Loans, or any
funds that are deposited in any custodial account, Escrow Account or the
Collection Account, or any funds that otherwise are or may become due or
payable to the Trustee, to any claim, lien, security interest, judgment, levy,
writ of attachment or other encumbrance, nor assert by legal action or
otherwise any claim or right of setoff against any Mortgage Loan or any funds
collected on, or in connection with, a Mortgage Loan.
Section 9.14. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor, the
Securities Administrator and the Trustee, for the benefit of the
Certificateholders and the Class 2-A5 Certificate Insurer, as of the Closing
Date that:
(i) it is validly existing and in good standing under the
jurisdiction of its formation, and as Master Servicer has full power
and authority to transact any and all business contemplated by this
Agreement and to execute, deliver and comply with its obligations
under the terms of this Agreement, the execution, delivery and
performance of which have been duly authorized by all necessary
corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or
bylaws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Master Servicer
is a party or by which it is bound or to which any of its assets are
subject, which violation, default or breach would materially and
adversely affect the Master Servicer's ability to perform its
obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto,
a legal, valid and binding obligation of the Master Servicer,
enforceable against it in accordance with the terms hereof, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of creditors' rights in general, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding
in equity or at law);
(iv) the Master Servicer is not in default with respect to any
order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency to the extent that
any such default would materially and adversely affect its
performance hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and
adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any
third person to the execution of this Agreement or the performance by
the Master Servicer of its obligations under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential
mortgage loans, is an FNMA- and FHLMC approved seller/servicer;
(viii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master
Servicer; and
(x) the Master Servicer has obtained an Errors and Omissions
Insurance Policy and a Fidelity Bond in accordance with Section 9.02,
each of which is in full force and effect, and each of which provides
at least such coverage as is required hereunder.
(b) It is understood and agreed that the representations and
warranties set forth in this Section 9.14 shall survive the execution and
delivery of this Agreement. The Master Servicer shall indemnify the Depositor,
the Securities Administrator and the Trustee and hold them harmless against
any loss, damages, penalties, fines, forfeitures, legal fees and related
costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach of the Master Servicer's representations and warranties contained in
Section 9.14(a). Notwithstanding anything in this Agreement to the contrary,
the Master Servicer shall not be liable for special, indirect or consequential
losses or damages of any kind whatsoever (including, but not limited to, lost
profits). It is understood and agreed that the enforcement of the obligation
of the Master Servicer set forth in this Section to indemnify the Depositor,
the Securities Administrator and the Trustee as provided in this Section
constitutes the sole remedy (other than as set forth in Section 6.14) of the
Depositor and the Trustee, respecting a breach of the foregoing
representations and warranties. Such indemnification shall survive any
termination of the Master Servicer as Master Servicer hereunder, and any
termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor,
the Master Servicer, the Trustee or the Class 2-A5 Certificate Insurer or
notice thereof by any one of such parties to the other parties.
(c) It is understood and agreed that the representations and
warranties of the Depositor set forth in Sections 2.03(a) through (f) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Master Servicer and hold it harmless against any loss, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
Depositor's representations and warranties contained in Sections 2.03(a)
through (f) hereof. It is understood and agreed that the enforcement of the
obligation of the Depositor set forth in this Section to indemnify the Master
Servicer as provided in this Section constitutes the sole remedy of the Master
Servicer respecting a breach by the Depositor of the representations and
warranties in Sections 2.03(a) through (f) hereof.
Any cause of action against the Depositor relating to or arising out
of the breach of the representations and warranties made in Sections 2.03(a)
through (f) hereof shall accrue upon discovery of such breach by either the
Depositor or the Master Servicer or notice thereof by any one of such parties
to the other parties.
Section 9.15. Closing Certificate and Opinion. On or before the
Closing Date, the Master Servicer shall cause to be delivered to the Depositor
and ▇▇▇▇▇▇ Brothers Inc. an Opinion of Counsel, dated the Closing Date, in
form and substance reasonably satisfactory to the Depositor and ▇▇▇▇▇▇
Brothers Inc., as to the due authorization, execution and delivery of this
Agreement by the Master Servicer and the enforceability thereof.
Section 9.16. Standard Hazard and Flood Insurance Policies. For each
Mortgage Loan, the Master Servicer shall maintain, or cause to be maintained
by each Servicer, standard fire and casualty insurance and, where applicable,
flood insurance, all in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable. It is understood and agreed
that such insurance shall be with insurers meeting the eligibility
requirements set forth in the applicable Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor or
to be maintained on property acquired in respect of a defaulted loan, other
than pursuant to such applicable laws and regulations as shall at any time be
in force and as shall require such additional insurance.
Pursuant to Section 4.01, any amounts collected by the Master
Servicer, or by any Servicer, under any insurance policies maintained pursuant
to this Section 9.16 (other than amounts to be applied to the restoration or
repair of the property subject to the related Mortgage or released to the
Mortgagor in accordance with the 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(v).
Section 9.17. Presentment of Claims and Collection of Proceeds. The
Master Servicer shall, or shall cause each Servicer (to the extent provided in
the applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies
with respect to the Mortgage Loans, and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to a Servicer and remitted to
the Master Servicer) in respect of such policies or bonds shall be promptly
deposited in the Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property 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 permit any Servicer (consistent
with the applicable Servicing Agreement) to take, any action that would result
in non-coverage under any applicable Primary Mortgage Insurance Policy of any
loss which, but for the actions of such Master Servicer or Servicer, would
have been covered thereunder. The Master Servicer shall use its best
reasonable efforts to keep in force and effect, or to cause each Servicer to
keep in force and effect (to the extent that the Mortgage Loan requires the
Mortgagor to maintain such insurance), primary mortgage insurance applicable
to each Mortgage Loan in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable. The Master Servicer shall not,
and shall not permit any Servicer to, cancel or refuse to renew any such
Primary Mortgage Insurance Policy that is in effect at the date of the initial
issuance of the Certificates and is required to be kept in force hereunder
except in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
to present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in
the Collection Account, subject to withdrawal pursuant to Section 4.02.
Section 9.19. Trustee To Retain Possession of Certain Insurance
Policies and Documents. The Trustee (or its custodian, if any, as directed by
the Trustee), shall retain possession and custody of the originals of the
Primary Mortgage Insurance Policies or certificate of insurance if applicable
and any certificates of renewal as to the foregoing as may be issued from time
to time as contemplated by this Agreement. Until all amounts distributable in
respect of the Certificates have been distributed in full and the Master
Servicer otherwise has fulfilled its obligations under this Agreement, the
Trustee (or its custodian, if any, as directed by the Trustee) shall also
retain possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions of this Agreement. The Master Servicer
shall promptly deliver or cause to be delivered to the Trustee (or its
custodian, if any, as directed by the Trustee), upon the execution or receipt
thereof the originals of the Primary Mortgage Insurance Policies and any
certificates of renewal thereof, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
Section 9.20. Realization Upon Defaulted Mortgage Loans. The Master
Servicer shall use its reasonable best efforts to, or to cause each Servicer
to, foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, all in accordance with the applicable
Servicing Agreement.
Section 9.21. Compensation to the Master Servicer. The Master
Servicer shall be entitled to withdraw from the Collection Account, subject to
Section 5.05, the Master Servicing Fee to the extent permitted by Section
4.02(vi). Servicing compensation in the form of assumption fees, if any, late
payment charges, as collected, if any, or otherwise (including any Prepayment
Penalty Amount) shall be retained by the Master Servicer (or the applicable
Servicer) and shall not be deposited in the Collection Account. If the Master
Servicer does not retain or withdraw the Master Servicing Fee from the
Collection Account as provided herein, the Master Servicer shall be entitled
to direct the Trustee to pay the Master Servicing Fee to such Master Servicer
by withdrawal from the Certificate Account. The Master Servicer shall be
required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as
provided in this Agreement. Pursuant to Section 4.01(e), all income and gain
realized from any investment of funds in the Collection Account shall be for
the benefit of the Master Servicer as additional compensation. The provisions
of this Section 9.21 are subject to the provisions of Section 6.14(b).
Section 9.22. REO Property. (a) In the event the Trust Fund acquires
ownership of any REO Property in respect of any Mortgage Loan, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the Certificateholders. The Master Servicer shall use its reasonable
best efforts to sell, or, to the extent provided in the applicable Servicing
Agreement, cause the applicable Servicer to sell, any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable, but in all
events within the time period, and subject to the conditions set forth in
Article X hereof. Pursuant to its efforts to sell such REO Property, the
Master Servicer shall protect and conserve, or cause the applicable Servicer
to protect and conserve, such REO Property in the manner and to such extent
required by the applicable Servicing Agreement, subject to Article X hereof.
(b) The Master Servicer shall deposit or cause to be deposited all
funds collected and received by it, or recovered from any Servicer, in
connection with the operation of any REO Property in the Collection Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Advances as well as any unpaid Master Servicing Fees or
Servicing Fees from Liquidation Proceeds received in connection with the final
disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Master Servicing Fees or Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of any
net rental income or other net amounts derived from such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable
Servicer as provided above, shall be deposited in the Collection Account on or
prior to the Determination Date in the month following receipt thereof (and
the Master Servicer shall provide prompt written notice to the Trustee upon
such deposit) and be remitted by wire transfer in immediately available funds
to the Trustee for deposit into the Certificate Account on the next succeeding
Deposit Date.
Section 9.23. [Omitted]
Section 9.24. Reports to the Trustee. (a) Not later than 30 days
after each Distribution Date, the Master Servicer shall forward to the Trustee
a statement, deemed to have been certified by a Servicing Officer, setting
forth the status of the Collection Account maintained by the Master Servicer
as of the close of business on the related Distribution Date, indicating that
all distributions required by this Agreement to be made by the Master Servicer
have been made (or if any required distribution has not been made by the
Master Servicer, specifying the nature and status thereof) and showing, for
the period covered by such statement, the aggregate of deposits into and
withdrawals from the Collection Account maintained by the Master Servicer.
Copies of such statement shall be provided by the Master Servicer to the
Depositor, Attention: Contract Finance, and, upon request, any
Certificateholders (or by the Trustee at the Master Servicer's expense if the
Master Servicer shall fail to provide such copies (unless (i) the Master
Servicer shall have failed to provide the Trustee with such statement or (ii)
the Trustee shall be unaware of the Master Servicer's failure to provide such
statement)).
(b) Not later than two Business Days following each Distribution
Date, the Master Servicer shall deliver to the Person designated by the
Depositor, in a format consistent with other electronic loan level reporting
supplied by the Master Servicer in connection with similar transactions, "loan
level" information with respect to the Mortgage Loans as of the related
Determination Date, to the extent that such information has been provided to
the Master Servicer by the Servicers or by the Depositor.
Section 9.25. Annual Officer's Certificate as to Compliance. (a) The
Master Servicer shall deliver to the Trustee, the Rating Agencies and the
Class 2-A5 Certificate Insurer on or before August 31 of each year, commencing
on August 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 such Servicer's annual certificate of compliance and a copy
of such Servicer's annual audit report, in each case to the extent required
under the applicable Servicing Agreement, or, if any such certificate or
report has not been received by the Master Servicer, the Master Servicer is
using its best reasonable efforts to obtain such certificate or report.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at
the Master Servicer's expense if the Master Servicer failed to provide such
copies (unless (i) the Master Servicer shall have failed to provide the
Trustee with such statement or (ii) the Trustee shall be unaware of the Master
Servicer's failure to provide such statement).
Section 9.26. Annual Independent Accountants' Servicing Report. If
the Master Servicer has, during the course of any fiscal year, directly
serviced any of the Mortgage Loans, then the Master Servicer at its expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish a statement to the Trustee, the Class 2-A5 Certificate
Insurer, the Rating Agencies and the Depositor on or before August 31 of each
year, commencing on August 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
any Certificateholder upon request by the Master Servicer, or by the Trustee
at the expense of the Master Servicer if the Master Servicer shall fail to
provide such copies. If such report discloses exceptions that are material,
the Master Servicer shall advise the Trustee whether such exceptions have been
or are susceptible of cure, and will take prompt action to do so.
Section 9.27. Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master
Servicer shall be a Person that shall be qualified and approved to service
mortgage loans for FNMA or FHLMC and shall have a net worth of not less than
$15,000,000.
Section 9.28. Resignation of Master Servicer. Except as otherwise
provided in Sections 9.27 and 9.29 hereof, the Master Servicer shall not
resign from the obligations and duties hereby imposed on it unless it or the
Trustee determines that the Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee. No such resignation shall become effective until the
Trustee shall have assumed, or a successor master servicer shall have been
appointed by the Trustee and until such successor shall have assumed, the
Master Servicer's responsibilities and obligations under this Agreement.
Notice of such resignation shall be given promptly by the Master Servicer to
the Depositor.
Section 9.29. Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder; provided, however, that the Master
Servicer shall have the right without the prior written consent of the
Trustee, the Depositor or the Rating Agencies to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to perform and carry out any duties, covenants or obligations to be performed
and carried out by the Master Servicer hereunder. In no case, however, shall
any such delegation, subcontracting or assignment to an Affiliate of the
Master Servicer relieve the Master Servicer of any liability hereunder. Notice
of such permitted assignment shall be given promptly by the Master Servicer to
the Depositor and the Trustee. If, pursuant to any provision hereof, the
duties of the Master Servicer are transferred to a successor master servicer,
the entire amount of the Master Servicing Fees and other compensation payable
to the Master Servicer pursuant hereto, including amounts payable to or
permitted to be retained or withdrawn by the Master Servicer pursuant to
Section 9.21 hereof, shall thereafter be payable to such successor master
servicer.
Section 9.30. Limitation on Liability of the Master Servicer and
Others. Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Trustee or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect
the Master Servicer or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. The Master Servicer
shall be under no obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties to master service the Mortgage
Loans in accordance with this Agreement and that in its opinion may involve it
in any expenses or liability; provided, however, that the Master Servicer may
in its sole discretion undertake any such action that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund and the
Master Servicer shall be entitled to be reimbursed therefor out of the
Collection Account it maintains as provided by Section 4.02.
Section 9.31. Indemnification; Third-Party Claims. The Master
Servicer agrees to indemnify the Depositor, the Securities Administrator and
the Trustee, and hold them harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
any other costs, liability, fees and expenses that the Depositor, the
Securities Administrator and the Trustee may sustain as a result of the
failure of the Master Servicer to perform its duties and master service the
Mortgage Loans in compliance with the terms of this Agreement. The Depositor,
the Securities Administrator and the Trustee shall immediately notify the
Master Servicer if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans entitling the Depositor, the Securities
Administrator or the Trustee to indemnification hereunder, whereupon the
Master Servicer shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or them in respect of such claim.
Article X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. (a) As set forth in the
Preliminary Statement hereto, the Trustee shall elect REMIC status in
accordance with the REMIC Provisions with respect to each of the Lower Tier
REMIC and the Upper Tier REMIC. The Trustee shall make such elections on Forms
1066 or other appropriate federal tax or information return for the taxable
year ending on the last day of the calendar year in which the Certificates are
issued. For the purposes of such elections, each Lower Tier Interests, other
than the Class LTR Interest, is hereby designated as a regular interest in the
Lower Tier REMIC, and each Certificate, other than the Class R Certificate, is
hereby designated as a regular interest in the Upper Tier REMIC. The Class LTR
Interest is hereby designated as the sole residual interest in the Lower Tier
REMIC. The Class R Certificate evidences ownership of the Class LTR Interest
and is also hereby designated as the sole residual interest in the Upper Tier
REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 86OG(a)(9) of the Code.
(c) The Securities Administrator shall pay any and all tax related
expenses (not including taxes) of each REMIC, including but not limited to any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC that involve the Internal
Revenue Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Securities Administrator in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Securities Administrator shall be entitled to reimbursement of expenses to
the extent provided in clause (i) above from the Certificate Account.
(d) The Securities Administrator shall prepare and file, and the
Trustee shall sign, all of each REMIC's federal and state tax and information
returns as such REMIC's direct representative. The expenses of preparing and
filing such returns shall be borne by the Securities Administrator. If any
Disqualified Organization acquires any Ownership Interest in a Residual
Certificate, then the Securities Administrator will upon request provide to
the Internal Revenue Service, and to the persons specified in Sections
860E(e)(3) and (6) of the Code, such information as required in Section
860D(a)(6)(B) of the code needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations. The Securities Administrator shall be entitled to additional
compensation from such person for the cost of providing such information.
(e) The Securities Administrator shall perform on behalf of each
REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Among its other duties, if required by the Code, the
REMIC Provisions, or other such guidance, the Securities Administrator shall
provide (i) to the Treasury or other governmental authority such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any disqualified person or organization and (ii) to
the Trustee such information as is necessary for the Trustee to provide to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(f) The Trustee, the Securities Administrator, the Master Servicer
and the Holders of Certificates shall take any action or cause the REMIC to
take any action necessary to create or maintain the status of such REMIC as a
REMIC under the REMIC Provisions and shall assist each other as necessary to
create or maintain such status. Neither the Trustee, the Securities
Administrator, the Master Servicer nor the Holder of any Residual Certificate
shall take any action, cause the REMIC to take any action or fail to take (or
fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of such
REMIC as a REMIC or (ii) result in the imposition of a tax upon such REMIC
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2) and the tax on prohibited contributions set forth on
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee, the Securities Administrator, and the Master Servicer have
received an Opinion of Counsel (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not endanger such
status or result in the imposition of such a tax. In addition, prior to taking
any action with respect to the REMIC or the assets therein, or causing such
REMIC to take any action, which is not expressly permitted under the terms of
this Agreement, any Holder of a Residual Certificate will consult with the
Trustee, the Securities Administrator, and the Master Servicer, or their
respective designees, in writing, with respect to whether such action could
cause an Adverse REMIC Event to occur with respect to such REMIC, and no such
Person shall take any such action or cause such REMIC to take any such action
as to which the Trustee, the Securities Administrator or the Master Servicer
has advised it in writing that an Adverse REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in such REMIC or, if no such amounts are available, out
of other amounts held in the Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in such REMIC, as the case
may be.
(h) The Securities Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC on a calendar
year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither the Trustee, the Securities Administrator nor the Master
Servicer shall enter into any arrangement by which any REMIC will receive a
fee or other compensation for services.
(k) Upon the request of any Rating Agency, the Trustee or the
Securities Administrator shall deliver to such Rating Agency an Officer's
Certificate stating the Trustee's or the Securities Administrator's compliance
with the provisions of this Section 10.01 applicable to it.
Section 10.02. Prohibited Transactions and Activities. Neither the
Depositor, the Master Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the Certificate Account for gain, nor accept any contributions to the REMIC
after the Closing Date, unless it has received an Opinion of Counsel (at the
expense of the party causing such sale, disposition, or substitution) that
such disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of such REMIC as a REMIC or of the Certificates other
than the Residual Certificates as the regular interests therein, (b) affect
the distribution of interest or principal on the Certificates, (c) result in
the encumbrance of the assets transferred or assigned to the Trust Fund
(except pursuant to the provisions of this Agreement) or (d) cause such REMIC
to be subject to a tax on prohibited transactions or prohibited contributions
pursuant to the REMIC Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status. (a) In the event that a REMIC fails to qualify as a REMIC,
loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Trustee or the Securities
Administrator of its duties and obligations set forth herein, the Trustee or
the Securities Administrator, as applicable, shall indemnify the Holder of the
Residual Certificate against any and all losses, claims, damages, liabilities
or expenses ("Losses") resulting from such negligence; provided, however, that
neither the Trustee nor the Securities Administrator shall be liable for any
such Losses attributable to the action or inaction of the Master Servicer, the
Depositor, or the Holder of such Residual Certificate, as applicable, nor for
any such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Trustee or the Securities Administrator has
relied. The foregoing shall not be deemed to limit or restrict the rights and
remedies of the Holder of such Residual Certificate now or hereafter existing
at law or in equity. Notwithstanding the foregoing, however, in no event shall
the Trustee or the Securities Administrator, as applicable, have any liability
(1) for any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement, (2) for any Losses other than arising out of a
negligent performance by the Trustee or the Securities Administrator, as
applicable, 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). In addition, neither the
Trustee nor the Securities Administrator shall have any liability for the
actions or failure to act of the other.
Section 10.04. REO Property. (a) Notwithstanding any other provision
of this Agreement, the Master Servicer, acting on behalf of the Trustee
hereunder, shall not, and shall, to the extent provided in the applicable
Servicing Agreement, not permit any Servicer to, rent, lease, or otherwise
earn income on behalf of any REMIC with respect to any REO Property which
might cause such REO Property to fail to qualify as "foreclosure" property
within the meaning of section 860G(a)(8) of the Code or result in the receipt
by any REMIC of any "income from non-permitted assets" within the meaning of
section 860F(a)(2) of the Code or any "net income from foreclosure property"
which is subject to tax under the REMIC Provisions unless the Master Servicer
has advised, or has caused the applicable Servicer to advise, the Trustee in
writing to the effect that, under the REMIC Provisions, such action would not
adversely affect the status of the REMIC as a REMIC and any income generated
for such REMIC by the REO Property would not result in the imposition of a tax
upon such REMIC.
(b) The Master Servicer shall make, or shall cause the applicable
Servicer to make, reasonable efforts to sell any REO Property for its fair
market value. In any event, however, the Master Servicer shall, or shall cause
the applicable Servicer to, dispose of any REO Property within three years
from the end of the calendar year of its acquisition by the Trust Fund unless
the Trustee has received a grant of extension from the Internal Revenue
Service to the effect that, under the REMIC Provisions and any relevant
proposed legislation and under applicable state law, the REMIC may hold REO
Property for a longer period without adversely affecting the REMIC status of
such REMIC or causing the imposition of a Federal or state tax upon such
REMIC. If the Trustee has received such an extension, then (a) the Trustee
shall provide a copy of such extension to the Master Servicer and the
Securities Administrator and (b) the Trustee, or the Master Servicer, acting
on its behalf hereunder, shall, or shall cause the applicable Servicer to,
continue to attempt to sell the REO Property for its fair market value for
such period longer than three years as such extension permits (the "Extended
Period"). If the Trustee has not received such an extension and the Trustee,
or the Master Servicer acting on behalf of the Trustee hereunder, or the
applicable Servicer is unable to sell the REO Property within 33 months after
its acquisition by the Trust Fund or if the Trustee has received such an
extension, and the Trustee, or the Master Servicer acting on behalf of the
Trustee hereunder, is unable to sell the REO Property within the period ending
three months before the close of the Extended Period, the Master Servicer
shall, or shall cause the applicable Servicer to, before the end of the three
year period or the Extended Period, as applicable, (i) purchase such REO
Property at a price equal to the REO Property's fair market value or (ii)
auction the REO Property to the highest bidder (which may be the Master
Servicer) in an auction reasonably designed to produce a fair price prior to
the expiration of the three-year period or the Extended Period, as the case
may be.
Article XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section 11.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03. Amendment. (a) This Agreement may be amended from time
to time by the Depositor, the Securities Administrator, the Master Servicer
and the Trustee, without notice to or the consent of any of the Holders, (i)
to cure any ambiguity, (ii) to cause the provisions herein to conform to or be
consistent with or in furtherance of the statements made with respect to the
Certificates, the Trust Fund or this Agreement in any Offering Document; or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to make any other provisions with respect to
matters or questions arising under this Agreement or (iv) to add, delete, or
amend any provisions to the extent necessary or desirable to comply with any
requirements imposed by the Code and the REMIC Provisions. No such amendment
effected pursuant to the preceding sentence shall, as evidenced by an Opinion
of Counsel, adversely affect the status of any REMIC created pursuant to this
Agreement, nor shall such amendment effected pursuant to clause (iii) of such
sentence adversely affect in any material respect the interests of any Holder
(without regard to the Class 2-A5 Certificate Insurance Policy). Prior to
entering into any amendment without the consent of Holders pursuant to this
paragraph, the Trustee may require an Opinion of Counsel (at the expense of
the party requesting such amendment) to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material respect any Holder, if the Trustee receives
written confirmation from each Rating Agency that such amendment will not
cause such Rating Agency to reduce, qualify or withdraw the then current
rating assigned to the Certificates (in the case of the Class 2-A5
Certificates, determined without regard to the Class 2-A5 Certificate
Insurance Policy).
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of not less than 66-2/3% of the Class Principal Amount (or Percentage
Interest) of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided, however, that no such amendment shall be made unless the
Trustee and the Securities Administrator receives an Opinion of Counsel, at
the expense of the party requesting the change, that such change will not
adversely affect the status of the REMIC as a REMIC or cause a tax to be
imposed on such REMIC; and provided further, that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, payments received
on Mortgage Loans which are required to be distributed on any Certificate,
without the consent of the Holder of such Certificate or (ii) reduce the
aforesaid percentages of Class Principal Amount (or Percentage Interest) of
Certificates of each Class, the Holders of which are required to consent to
any such amendment without the consent of the Holders of 100% of the Class
Principal Amount (or Class Notional Amount) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to "Holder" or
"Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to any amendment of any Servicing
Agreement except pursuant to the standards provided in this Section with
respect to amendment of this Agreement.
Section 11.04. Voting Rights. Except to the extent that the consent
of all affected Certificateholders is required pursuant to this Agreement,
with respect to any provision of this Agreement requiring the consent of
Certificateholders representing specified percentages of aggregate outstanding
Certificate Principal Amount (or Notional Amount), Certificates owned by the
Depositor, the Master Servicer, the Securities Administrator, the Trustee or
any Servicer or Affiliates thereof are not to be counted so long as such
Certificates are owned by the Depositor, the Master Servicer, the Trustee or
any Servicer or Affiliates thereof.
Section 11.05. Provision of Information. (a) For so long as any of
the Certificates of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Depositor and the Trustee
agree to cooperate with each other to provide to any Certificateholders and to
any prospective purchaser of Certificates designated by such
Certificateholder, upon the request of such Certificateholder or prospective
purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
or the Securities Administrator in providing such information shall be
reimbursed by the Depositor.
(b) The Securities Administrator will provide to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, (i) a copy (excluding exhibits) of any report
on Form 8-K or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 6.20(c) and (ii) a copy of any other document incorporated
by reference in the Prospectus. Any reasonable out-of-pocket expenses incurred
by the Securities Administrator in providing copies of such documents shall be
reimbursed by the Depositor.
(c) On each Distribution Date, the Securities Administrator shall
deliver or cause to be delivered by first class mail to the Depositor,
Attention: Contract Finance, a copy of the report delivered to
Certificateholders pursuant to Section 4.03.
Section 11.06. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered to such party at the relevant address, facsimile number or
electronic mail address set forth below (or at such other address, facsimile
number or electronic mail address as such party may designate from time to
time by written notice in accordance with this Section 11.07): (a) in the case
of the Depositor, Structured Asset Securities Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇, (b) in the case of
the Trustee, the Corporate Trust Office, (c) in the case of the Master
Servicer, Aurora Loan Services Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Master Servicing, (d) in the case of the
Securities Administrator, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., 11000 ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: SASCO 2000-3 and (e) in the case
of the Class 2-A5 Certificate Insurer, MBIA Insurance Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Insured Portfolio Management -
Structured Finance (IMP-SF), Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2000-3, Class 2-A5 Certificates, or as to
each party such other address as may hereafter be furnished by such party to
the other parties in writing. Any notice required or permitted to be mailed to
a Holder shall be given by first class mail, postage prepaid, at the address
of such Holder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice.
Section 11.08. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 11.10. Headings Not To Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement. Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of
the Certificates, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement, except to the extent specified in Sections
11.14 and 11.15.
Section 11.12. Special Notices to the Rating Agencies. (a) The
Depositor shall give prompt notice to the Rating Agencies and to the Class
2-A5 Certificate Insurer of the occurrence of any of the following events of
which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any Assignment by the Master Servicer of its rights
hereunder or delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in
Section 6.14;
(iv) any notice of termination given to the Master Servicer
pursuant to Section 6.14 and any resignation of the Master Servicer
hereunder;
(v) the appointment of any successor to any Master Servicer
pursuant to Section 6.14; and
(vi) the making of a final payment pursuant to Section 7.02.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight
courier, as follows:
If to Fitch, to:
Fitch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Mortgage Surveillance
If to S&P, to:
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Mortgage Surveillance
(c) The Securities Administrator shall provide or make available to
the Rating Agencies reports prepared pursuant to Section 4.03.
Section 11.13. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
Section 11.14. Transfer of Servicing. The Seller agrees that it shall
provide written notice to the Trustee, the Class 2-A5 Certificate Insurer and
the Master Servicer thirty days prior to any transfer or assignment by the
Seller of its rights under any Servicing Agreement or of the servicing
thereunder or delegation of its rights or duties thereunder or any portion
thereof to any Person other than the initial Servicer under such Servicing
Agreement; provided that the Seller shall not be required to provide prior
notice of any transfer of servicing that occurs within three months of the
Closing Date to an entity that is a Servicer on the Closing Date; provided,
however, that the Seller agrees that it shall provide written notice to the
Trustee, the Class 2-A-5 Certificate Insurer and the Master Servicer within
five days of such an event. In addition, the ability of the Seller to transfer
or assign its rights and delegate its duties under any Servicing Agreement or
to transfer the servicing thereunder to a successor servicer shall be subject
to the following conditions:
(i) Such successor servicer must be qualified to service loans
for FNMA or FHLMC;
(ii) Such successor servicer must satisfy the seller/servicer
eligibility standards in the applicable Servicing Agreement,
exclusive of any experience in mortgage loan origination, and must be
reasonably acceptable to the Master Servicer, whose approval shall
not be unreasonably withheld;
(iii) Such successor servicer must execute and deliver to the
Trustee and the Master Servicer an agreement, in form and substance
reasonably satisfactory to the Trustee and the Master Servicer, that
contains an assumption by such successor servicer of the due and
punctual performance and observance of each covenant and condition to
be performed and observed by the Servicer under the applicable
Servicing Agreement or, in the case of a transfer of servicing to a
party that is already a Servicer pursuant to this Agreement, an
agreement to add the related Mortgage Loans to the Servicing
Agreement already in effect with such Servicer;
(iv) There must be delivered to the Trustee a letter from each
Rating Agency to the effect that such transfer of servicing will not
result in a qualification, withdrawal or downgrade of the
then-current rating of any of the Certificates (determined without
regard to the Class 2-A5 Certificate Insurance Policy, in the case of
the Class 2-A5 Certificates);
(v) The Seller shall, at its cost and expense, take such steps,
or cause the terminated Servicer to take such steps, as may be
necessary or appropriate to effectuate and evidence the transfer of
the servicing of the Mortgage Loans to such successor servicer,
including, but not limited to, the following: (A) to the extent
required by the terms of the Mortgage Loans and by applicable federal
and state laws and regulations, the Seller shall cause the prior
Servicer to timely mail to each obligor under a Mortgage Loan any
required notices or disclosures describing the transfer of servicing
of the Mortgage Loans to the successor servicer; (B) prior to the
effective date of such transfer of servicing, the Seller shall cause
the prior Servicer to transmit to any related insurer notification of
such transfer of servicing; (C) on or prior to the effective date of
such transfer of servicing, the Seller shall cause the prior Servicer
to deliver to the successor servicer all Mortgage Loan Documents and
any related records or materials; (D) on or prior to the effective
date of such transfer of servicing, the Seller shall cause the prior
Servicer to transfer to the successor servicer, or, if such transfer
occurs after a Remittance Date but before the next succeeding Deposit
Date, to the Master Servicer, all funds held by the Servicer in
respect of the Mortgage Loans; (E) on or prior to the effective date
of such transfer of servicing, the Seller shall cause the prior
Servicer to, after the effective date of the transfer of servicing to
the successor servicer, continue to forward to such successor
servicer, within one Business Day of receipt, the amount of any
payments or other recoveries received by the prior Servicer, and to
notify the successor servicer of the source and proper application of
each such payment or recovery; and (F) the Seller shall cause the
prior Servicer to, after the effective date of transfer of servicing
to the successor servicer, continue to cooperate with the successor
servicer to facilitate such transfer in such manner and to such
extent as the successor servicer may reasonably request.
Section 11.15. Matters Relating to the Class 2-A5 Certificate
Insurance Policy. (a) All notices, statements, reports, certificates or
opinions required by this Agreement to be sent to any other party hereto or to
the Class 2-A5 Certificateholders shall also be sent, and any report or
statement sent by the Master Servicer to the Trustee or the Securities
Administrator shall be sent by the Trustee or the Securities Administrator, as
applicable, to the Class 2-A5 Certificate Insurer at the following address:
MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Insured Portfolio Management - Structured Finance
Re: Structured Asset Securities Corporation Mortgage Pass-
Through Certificates, Series 2000-3, Class 2-A5
Certificates
or such other address as the Class 2-A5 Certificate Insurer may hereafter
furnish to the Depositor, the Securities Administrator and the Trustee.
(b) Notwithstanding any provision to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the interest of
such parties as set forth herein, the Class 2-A5 Certificate Insurer receive
the benefit of Sections 4.03, 5.02, 5.07 and 11.15 as an intended third party
beneficiary of this Agreement to the extent of such provisions.
(c) No purchase of the property of the Trust Fund pursuant to Section
7.01(b) shall occur if such purchase would result in a draw on the Class 2-A5
Certificate Insurance Policy, unless the Class 2-A5 Certificate Insurer has
consented to such purchase.
(d) All references herein to the rating of the Certificates shall be
without regard to the Class 2-A5 Certificate Insurance Policy.
IN WITNESS WHEREOF, the Depositor, the Trustee and the Master
Servicer have caused their names to be signed hereto by their respective
officers hereunto duly authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Securities Administrator
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: AVP
AURORA LOAN SERVICES INC., as Master Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: CEO
Solely for purposes of Section 11.14,
accepted and agreed to by:
▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT B-1
[RESERVED]
EXHIBIT B-2
[RESERVED]
EXHIBIT B-3
EXHIBIT B-4
FORM OF ENDORSEMENT
Pay to the order of Bank One, National Association, as trustee (the
"Trustee") under the Trust Agreement dated as of July 1, 2000, among
Structured Asset Securities Corporation, as Depositor, the Trustee, the
Securities Administrator and the Master Servicer relating to Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2000-3,
without recourse.
--------------------------------------
[current signatory on note]
By:___________________________________
Name:
Title:
EXHIBIT C
[RESERVED]
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 __________________ [date of
transfer] 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, Bank One, National Association, as Trustee, ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as Securities Administrator and Aurora Loan Services Inc., as
Master Servicer, dated as of July 1, 2000, no transfer of a Residual
Certificate 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 a Residual Certificate.
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 G to the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash
flows generated by the interest and that it intends to pay taxes associated
with holding such Residual Certificate as they become due.
10. That the Purchaser (i) is a U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor
and the Trustee with an effective Internal Revenue Service Form W-8 ECI
(Certificate of Foreign Person's with the Conduct of a Trade or Business in
the United States) or successor form at the time and in the manner required by
the Code. "Non-U.S. Person" Any person other than (i) a citizen or resident of
the United States; (ii) a corporation (or entity treated as a corporation for
tax purposes) created or organized in the United States or under the laws of
the United States or of any state thereof, including, for this purpose, the
District of Columbia; (iii) a partnership (or entity treated as a partnership
for tax purposes) organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in gross income for
United States income tax purposes regardless of its source; or (v) a trust, if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last
clause of the preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
U.S. Persons prior to such date, may elect to continue to be U.S. Persons.
11. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the restrictions on
transfer of any Residual Certificate to such a "disqualified organization," an
agent thereof, a Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Trustee as
its agent to act as "tax matters person" of the Trust Fund pursuant to the
Trust Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________, 20__.
--------------------------------------
[name of Purchaser]
By:___________________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 20__.
NOTARY PUBLIC
______________________________
COUNTY OF_____________________
STATE OF_______________________
My commission expires the _____ day of __________, 20__.
EXHIBIT D-2
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
____________________
Date
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
_______________________ (the "Transferor") has reviewed the
attached affidavit of _____________________________ (the "Transferee"), and
has no actual knowledge that such affidavit is not true and has no reason to
believe that the information contained in paragraph 7 thereof is not true, and
has no reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
________________________
Name:
Title:
EXHIBIT E
SERVICING AGREEMENTS
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 2000-3
Reference is hereby made to the Trust Agreement dated as of July 1,
2000 (the "Trust Agreement") among Structured Asset Securities Corporation, as
Depositor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Securities Administrator,
Aurora Loan Services Inc., as Master Servicer and Bank One, National
Association, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Trust Agreement.
This letter relates to $_________ initial Certificate Principal
Amount of Class _____ Certificates which are held in the form of Definitive
Certificates registered in the name of (the "Transferor"). The Transferor has
requested a transfer of such Definitive Certificates for Definitive
Certificates of such Class registered in the name of [insert name of
transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred
in accordance with (i) the transfer restrictions set forth in the Trust
Agreement and the Certificates and (ii) Rule 144A under the Securities Act to
a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer", which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Placement Agent and the Depositor.
________________________________________
[Name of Transferor]
By:_____________________________________
Name:
Title:
Dated: __________________, ________
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
______________________
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Mortgage Pass-Through Certificates, Series 2000-3 (the "Privately
Offered Certificates") of Structured Asset Securities Corporation (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 July 1,
2000 among the Depositor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Securities Administrator, Aurora Loan Services Inc., as Master
Servicer and Bank One, National Association, as Trustee (the
"Trustee"), a signed letter in the form of this letter; and we
further agree, in the capacities stated above, to provide to any
person purchasing any of the Privately Offered Certificates from us a
notice advising such purchaser that resales of the Privately Offered
Certificates are restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited
Investor, we will be required to furnish to the Trustee and the
Depositor a certification from such transferee in the form hereof to
confirm that the proposed sale is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act. We further understand that the
Privately Offered Certificates purchased by us will bear a legend to
the foregoing effect.
(3) We are acquiring the Privately Offered Certificates for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Privately Offered Certificates, and we and any
account for which we are acting are each able to bear the economic
risk of such investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional
Accredited Investor) as to each of which we exercise sole investment
discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand that
in accordance with ERISA, the Code and the Exemption, no Plan as to
which the Purchaser, the Depositor, any Servicer or Master Servicer
or the Trustee is a party in interest or disqualified person, and no
person acting on behalf of such a Plan may acquire such Certificate
unless the acquisition would constitute an exempt transaction under a
statutory exemption or any of the administrative exemptions issued by
the U.S. Department of Labor.
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
and the Depositor an opinion of counsel (a "Benefit Plan Opinion")
satisfactory to the Trustee and the Depositor, and upon which the Trustee and
the Depositor shall be entitled to rely, to the effect that the purchase or
holding of such Certificate by the Investor will not result in the assets of
the Trust Fund being deemed to be plan assets and subject to the prohibited
transaction provisions of ERISA or the Code and will not subject the Trustee
or the Depositor to any obligation in addition to those undertaken by such
entities in the Trust Agreement, which opinion of counsel shall not be an
expense of the Trustee or the Depositor.
3. The Investor hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") among Structured Asset Securities Corporation, as
Depositor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Securities Administrator,
Aurora Loan Services Inc., as Master Servicer, and Bank One, National
Association, as Trustee, dated as of July 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
MONTHLY REMITTANCE ADVICE
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
EXHIBIT K
CUSTODIAL AGREEMENT
EXHIBIT L
INSURANCE AGREEMENT
EXHIBIT M
CLASS 2-A5 CERTIFICATE INSURANCE POLICY
SCHEDULE A
MORTGAGE LOAN SCHEDULE
SCHEDULE B
PRINCIPAL AMOUNT SCHEDULES
[Not Applicable]