EXHIBIT 4.1
EXECUTION
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
AURORA LOAN SERVICES INC., as Master Servicer,
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as Master Servicer,
the chase manhattan bank,
as Securities Administrator
and
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
---------------------------
TRUST AGREEMENT
Dated as of May 1, 2001
---------------------------
STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-8A
Table of Contents
Page
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions................................................................................14
Section 1.02 Calculations Respecting Mortgage Loans.....................................................49
ARTICLE II.
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans.......................49
Section 2.02 Acceptance of Trust Fund by Trustee: Review of Documentation for Trust Fund................52
Section 2.03 Representations and Warranties of the Depositor............................................54
Section 2.04 Discovery of Breach........................................................................56
Section 2.05 Repurchase, Purchase or Substitution of Mortgage Loans.....................................56
Section 2.06 Grant Clause...............................................................................58
ARTICLE III.
THE CERTIFICATES
Section 3.01 The Certificates...........................................................................58
Section 3.02 Registration...............................................................................59
Section 3.03 Transfer and Exchange of Certificates......................................................59
Section 3.04 Cancellation of Certificates...............................................................65
Section 3.05 Replacement of Certificates................................................................65
Section 3.06 Persons Deemed Owners......................................................................65
Section 3.07 Temporary Certificates.....................................................................65
Section 3.08 Appointment of Paying Agent................................................................66
Section 3.09 Book-Entry Certificates....................................................................66
ARTICLE IV.
ADMINISTRATION OF THE TRUST FUND
Section 4.01 Collection Accounts........................................................................67
Section 4.02 Application of Funds in the Collection Account. ...........................................69
Section 4.03 Reports to Certificateholders..............................................................71
Section 4.04 Certificate Account........................................................................74
Section 4.05 Determination of LIBOR.....................................................................75
ARTICLE V.
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01 Distributions Generally....................................................................77
Section 5.02 Distributions from the Certificate Account.................................................77
Section 5.03 Allocation of Realized Losses..............................................................86
Section 5.04 Advances by Master Servicers and Securities Administrator..................................88
Section 5.05 Compensating Interest Payments.............................................................89
ARTICLE VI.
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section 6.01 Duties of Trustee and Securities Administrator.............................................90
Section 6.02 Certain Matters Affecting the Trustee and the Securities Administrator.....................92
Section 6.03 Trustee and Securities Administrator Not Liable for Certificates...........................93
Section 6.04 Trustee and the Securities Administrator May Own Certificates..............................94
Section 6.05 Eligibility Requirements for Trustee and Securities Administrator..........................94
Section 6.06 Resignation and Removal of Trustee and Securities Administrator............................94
Section 6.07 Successor Trustee and Successor Securities Administrator...................................95
Section 6.08 Merger or Consolidation of Trustee or Securities Administrator.............................96
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian...................................96
Section 6.10 Authenticating Agents......................................................................98
Section 6.11 Indemnification of Trustee and Securities Administrator....................................99
Section 6.12 Fees and Expenses of Securities Administrator, Custodian and Trustee.......................99
Section 6.13 Collection of Monies......................................................................100
Section 6.14 Events of Default; Trustee to Act; Appointment of Successor...............................100
Section 6.15 Additional Remedies of Trustee Upon Event of Default......................................104
Section 6.16 Waiver of Defaults........................................................................104
Section 6.17 Notification to Holders...................................................................105
Section 6.18 Directions by Certificateholders and Duties of Trustee During Event of Default............105
Section 6.19 Action Upon Certain Failures of the Master Servicers and Upon Event of Default............105
Section 6.20 Preparation of Tax Returns and Other Reports..............................................105
ARTICLE VII.
PURCHASE AND TERMINATION OF THE TRUST FUND AND EXERCISE OF CALL OPTIONS
Section 7.01 Termination of Trust Fund Upon Repurchase or Liquidation of All Mortgage Loans............107
Section 7.02 Procedure Upon Termination of Trust Fund..................................................108
Section 7.03 Additional Trust Fund Termination Requirements............................................108
Section 7.04 Exercise of Call Options..................................................................109
Section 7.05 Optional Repurchase Right of ▇▇▇▇▇▇▇▇▇....................................................110
ARTICLE VIII.
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01 Limitation on Rights of Holders...........................................................111
Section 8.02 Access to List of Holders.................................................................111
Section 8.03 Acts of Holders of Certificates...........................................................112
ARTICLE IX.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICERs
Section 9.01 Duties of the Master Servicers............................................................113
Section 9.02 Master Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy....................................................................................113
Section 9.03 Master Servicer's Financial Statements and Related Information............................114
Section 9.04 Power to Act; Procedures..................................................................114
Section 9.05 Servicing Agreements Between each Master Servicer and Servicers; Enforcement of
Servicers' Obligations....................................................................116
Section 9.06 Collection of Taxes, Assessments and Similar Items........................................117
Section 9.07 Termination of Servicing Agreements; Successor Servicers..................................118
Section 9.08 Master Servicers Liable for Enforcement...................................................118
Section 9.09 No Contractual Relationship Between Servicers and Trustee or Depositor....................119
Section 9.10 Assumption of Servicing Agreement by Securities Administrator.............................119
Section 9.11 "Due-on-Sale" Clauses; Assumption Agreements..............................................119
Section 9.12 Release of Mortgage Files.................................................................120
Section 9.13 Documents, Records and Funds in Possession of Master Servicer To Be Held for
Trustee...................................................................................121
Section 9.14 Representations and Warranties of the Master Servicers....................................122
Section 9.15 Closing Certificate and Opinion...........................................................124
Section 9.16 Standard Hazard and Flood Insurance Policies..............................................124
Section 9.17 Presentment of Claims and Collection of Proceeds..........................................125
Section 9.18 Maintenance of the Primary Mortgage Insurance Policies....................................125
Section 9.19 Trustee To Retain Possession of Certain Insurance Policies and Documents..................126
Section 9.20 Realization Upon Defaulted Mortgage Loans.................................................126
Section 9.21 Compensation to the Master Servicers......................................................127
Section 9.22 REO Property..............................................................................127
Section 9.23 [Omitted].................................................................................128
Section 9.24 Reports to the Securities Administrator...................................................128
Section 9.25 Annual Officer's Certificate as to Compliance.............................................128
Section 9.26 Annual Independent Accountants' Servicing Report..........................................129
Section 9.27 Merger or Consolidation...................................................................130
Section 9.28 Resignation of Master Servicer............................................................130
Section 9.29 Assignment or Delegation of Duties by a Master Servicer...................................130
Section 9.30 Limitation on Liability of a Master Servicer and Others...................................131
Section 9.31 Indemnification; Third-Party Claims.......................................................131
ARTICLE X.
REMIC ADMINISTRATION
Section 10.01 REMIC Administration......................................................................132
Section 10.02 Prohibited Transactions and Activities....................................................134
Section 10.03 Indemnification with Respect to Certain Taxes and Loss of REMIC Status....................134
Section 10.04 REO Property..............................................................................135
Section 10.05 Class B4 Special Hazard Obligation........................................................135
Section 10.06 The Class 2-A1 Call Option and Class 3-A1 Call Option.....................................136
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.01 Binding Nature of Agreement; Assignment...................................................136
Section 11.02 Entire Agreement..........................................................................136
Section 11.03 Amendment.................................................................................136
Section 11.04 Voting Rights.............................................................................137
Section 11.05 Provision of Information..................................................................138
Section 11.06 Governing Law.............................................................................138
Section 11.07 Notices...................................................................................138
Section 11.08 Severability of Provisions................................................................139
Section 11.09 Indulgences; No Waivers...................................................................139
Section 11.10 Headings Not To Affect Interpretation.....................................................139
Section 11.11 Benefits of Agreement.....................................................................139
Section 11.12 Special Notices to the Rating Agencies....................................................139
Section 11.13 Counterparts..............................................................................140
Section 11.14 Transfer of Servicing.....................................................................140
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Trustee Initial Certification
Exhibit B-2 Form of Trustee Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit E [RESERVED]
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-1 Form of Transfer Certificate for Transfer from Restricted Global Security to Regulation S
Global Security pursuant to Section 3.03(h)(B)
Exhibit L-2 Form of Transfer Certificate for Transfer from Regulations Global Security to Restricted Global
Security pursuant to Section 3.03(h)(C)
Mortgage Loan Schedules
Schedule A Pool 1, Pool 2 and Pool 3 Mortgage Loans (to be master serviced by
Aurora Loan Services Inc.) Schedule B Pool 4 Mortgage Loans (to be master
serviced by Washington Mutual Mortgage Securities Corp.)
This TRUST AGREEMENT, dated as of May 1, 2001 (the "Agreement"), is
by and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation,
as depositor (the "Depositor"), AURORA LOAN SERVICES INC., as master servicer
(the "Group 1-3 Master Servicer"), WASHINGTON MUTUAL MORTGAGE SECURITIES
CORP., a Delaware corporation, as master servicer (the "Group 4 Master
Servicer" and together with the Master Servicer, the "Master Servicers" and
each a "Master Servicer"), THE CHASE MANHATTAN BANK, a New York banking
corporation, as securities administrator (the "Securities Administrator") and
BANK ONE, NATIONAL ASSOCIATION, a national banking association, as trustee
(the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from ▇▇▇▇▇▇ Capital, A
Division of ▇▇▇▇▇▇ Brothers Holdings Inc. (the "Seller") and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by it to the Trustee for inclusion in the Trust Fund. On the Closing Date, the
Depositor will acquire the Certificates from the Trust Fund, as consideration
for its transfer to the Trust Fund of the Mortgage Loans and the other
property constituting the Trust Fund. The Depositor has duly authorized the
execution and delivery of this Agreement to provide for the conveyance to the
Trustee of the Mortgage Loans and the other property constituting the Trust
Fund. All covenants and agreements made by the Depositor, the Master Servicer,
the Securities Administrator and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust Fund are for the
benefit of the Holders from time to time of the Certificates. The Depositor,
the Master Servicers 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.
For federal income tax purposes, the Trust Fund (exclusive of the
Class B4 Hazard Obligation) will consist of four REMICs, the Group 1-3 Lower
Tier REMIC, the Group 1-3 Upper Tier REMIC, the Group 4 Lower Tier REMIC, and
the Group 4 Upper Tier REMIC.
The Group 1-3 Lower Tier REMIC and the Group 1-3 Upper Tier REMIC:
The Group 1-3 Lower Tier REMIC will consist of all of the assets
constituting the Group 1-3 Mortgage Loans (exclusive of the Class B4 Hazard
Obligation, the Class 2-A1 Call Option and Class 3-A1 Call Option) and will be
evidenced by the Group 1-3 LT Regular Interests which will be uncertificated
and will represent the "regular interests" in the Group 1-3 Lower Tier REMIC
(the "Group 1-3 LT Regular Interests") and the Group 1-3 LT Residual Interest
as the single "residual interest" in the Group 1-3 Lower Tier REMIC (the
"Group 1-3 LT Residual Interest"). The Trustee will hold the Group 1-3 Lower
Tier REMIC regular interests on behalf of the Group 1-3 Upper Tier REMIC.
The Group 1-3 Upper Tier REMIC will consist of the Group 1-3 LT REMIC
Regular Interests and will be evidenced by the Group 1-3 Certificates which
will represent the "regular interests" in the Group 1-3 Upper Tier REMIC (the
"Group 1-3 UT Residual Interest") and the Group 1-3 UT Residual Interest as
the single "residual interest" in the Group 1-3 Upper Tier REMIC (the "Group
1-3 UT Residual Interest"). The Class R-I Certificate will represent
beneficial ownership of the Group 1-3 LT Residual Interest and the Group 1-3
UT Residual Interest. All REMIC regular and residual interests created hereby
will be retired on or before the Assumed Final Maturity Date.
The following table irrevocably sets forth the designation, the Group
1-3 Uncertificated Lower Tier REMIC Pass-Through Rate, the initial
Uncertificated Balance and, solely for the purpose of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date"
for each of the Group 1-3 Lower Tier REMIC Regular Interest. None of the Group
1-3 Lower Tier REMIC Regular Interests will be certificated.
Initial
Uncertificated Assumed
Certificate Principal (or Final
Class Designation Interest Rate Notional) Amount Maturity
----------------- -------------- ---------------- -----------
Class L1-A1 8.00% $109,763,000.00 June 25, 2033
Class L1-A2 0.00% $ 459,086.00 June 25, 2033
Class L1-A3 8.00% (1) June 25, 2033
Class L2-A1 8.00% $51,674,000.00 June 25, 2033
Class L2-A2 8.00% $ 1,000,000.00 June 25, 2033
Class L2-A4 (2) $ 709,378.00 June 25, 2033
Class L2-A5 8.00% (3) June 25, 2033
Class L3-A1 8.00% $46,679,000.00 June 25, 2033
Class L3-A2 8.00% $ 1,000,000.00 June 25, 2033
Class L3-A4 (4) $ 424,625.00 June 25, 2033
Class L3-A5 8.00% (5) June 25, 2033
Class LB1-I (6) $ 4,158,000.00 June 25, 2033
Class LB1-I-X (7) (8) June 25, 2033
Class LB2-I (9) $ 1,202,000.00 June 25, 2033
Class LB3-I (9) $ 655,000.00 June 25, 2033
Class LB4-I (9) $ 3,402,000.00 June 25, 2033
Class LB5-I (9) $ 1,361,000.00 June 25, 2033
Class LB6-I (9) $ 1,361,609.27 June 25, 2033
Group 1-3 LT Residual 8.00% $ 100.00 June 25, 2033
---------------------------
(1) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) of the Class 1-A3 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 1 at
the beginning of the related Due Period less 8.00%, and the denominator
of which is 8.00% and (ii) the total Scheduled Principal Balance of the
Non-Discount Mortgage Loans in Pool 1 as of the first day of the related
Accrual Period.
(2) For any Distribution Date on or prior to the Class 2-A1 Call Date, the
Class 2-A4 Certificates shall not be entitled to any payments of
interest. For any Distribution Date (and the related Accrual Period)
after the Class 2-A1 Call Date, the Certificate Interest Rate for the
Class 2-A4 Certificates shall be a per annum rate equal to the Net WAC
for Pool 2 for such Distribution Date.
(3) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) on or prior to the Class 2-A1 Call Date of the
Class 2-A5 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 2 at the beginning of the related
Due Period less 8.00%, and the denominator of which is 8.00% and (ii) the
total Scheduled Principal Balance of the Non-Discount Mortgage Loans in
Pool 2 as of the first day of the related Accrual Period. The Class
Notional Amount with respect to any Distribution Date (and the related
Accrual Period) after the Class 2-A1 Call Date of the Class 2-A5
Certificates will equal $0.00.
(4) For any Distribution Date on or prior to the Class 3-A1 Call Date, the
Class 3-A4 Certificates shall not be entitled to any payments of
interest. For any Distribution Date (and the related Accrual Period)
after the Class 3-A1 Call Date, the Certificate Interest Rate for the
Class 3-A4 Certificates shall be a per annum rate equal to the Net WAC
for Pool 3 for such Distribution Date.
(5) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) on or prior to the Class 3-A1 Call Date of the
Class 3-A5 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 less 8.00%, and the denominator of which is 8.00% and (ii) the
total Scheduled Principal Balance of the Non-Discount Mortgage Loans in
Pool 3 as of the first day of the related Accrual Period. The Class
Notional Amount with respect to any Distribution Date (and the related
Accrual Period) after the Class 3-A1 Call Date of the Class 3-A5
Certificates will equal $0.00.
(6) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) on or prior to the Class 2-A1 Call Date for
the Class B1-I Certificates is the per annum rate equal to 7.00%. The
Certificate Interest Rate with respect to any Distribution Date (and the
related Accrual Period) after the Class 2-A1 Call Date for the Class B1-I
Certificates is the per annum rate equal to the weighted average of the
Group 1 Subordinate Underlying Rate, the Group 2 Subordinate Underlying
Rate and the Group 3 Subordinate Underlying Rate weighted on the basis of
the Group Subordinate Amount for each such Mortgage Pool.
(7) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) on or before the Class 2-A1 Call Date for the
Class B1-I-X Certificates is the per annum rate equal to 1.00%. The
Certificate Interest Rate with respect to any Distribution Date (and the
related Accrual Period) after the Class 2-A1 Call Date is the per annum
rate equal to 0.00%.
(8) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) on or before the Class 2-A1 Call Date of the
Class B1-I-X Certificates will equal the Class Principal Amount of the
Class B1-I Certificates immediately preceding such Distribution Date. The
Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) after the Class 2-A1 Call Date will equal $0.00.
(9) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) on or prior to the Class 2-A1 Call Date for
each of the Class B2-I, Class B3-I, Class B4-I, Class B5-I and Class B6-I
Certificates is the per annum rate equal to 8.00%. The Certificate
Interest Rate with respect to any Distribution Date (and the related
Accrual Period) after the Class 2-A1 Call Date for each of the Class
B2-I, Class B3-I, Class B4-I, Class B5-I and Class B6-I Certificates is
the per annum rate equal to the weighted average of the Group 1
Subordinate Underlying Rate, the Group 2 Subordinate Underlying Rate and
the Group 3 Subordinate Underlying Rate weighted on the basis of the
Group Subordinate Amount for each such Mortgage Pool.
The following table sets forth (or describes) the Group 1-3 Upper
Tier REMIC Class designation, Certificate Interest Rate, original Initial
Class Principal Balance or original Class Notional Balance and Assumed Final
Maturity Date for each Class of Certificates comprising the interests in the
Upper Tier REMIC created hereunder each of which, except the Class Group 1-3
UT Residual Interest, is hereby designated a REMIC regular interest for
federal income tax purposes:
Initial
Uncertificated Assumed
Certificate Principal (or Final
Class Designation Interest Rate Notional)Amount Maturity
----------------- -------------- --------------- ----------
Class 1-A1 8.00% $109,763,000.00 June 25, 2033
Class 1-A2 0.00% $ 459,086.00 June 25, 2033
Class 1-A3 8.00% (1) June 25, 2033
Class 2-A1 (2) $51,674,000.00 June 25, 2033
Class 2-A2 (2) $ 1,000,000.00 June 25, 2033
Class 2-A3 (3) (4) June 25, 2033
Class 2-A4 (5) $ 709,378.00 June 25, 2033
Class 2-A5 8.00% (6) June 25, 2033
Class 3-A1 (7) $46,679,000.00 June 25, 2033
Class 3-A2 (7) $ 1,000,000.00 June 25, 2033
Class 3-A3 (8) (9) June 25, 2033
Class 3-A4 (10) $ 424,625.00 June 25, 2033
Class 3-A5 8.00% (11) June 25, 2033
Class B1-I (12) $ 4,158,000.00 June 25, 2033
Class B1-I-X (13) (14) June 25, 2033
Class B2-I (15) $ 1,202,000.00 June 25, 2033
Class B3-I (15) $ 655,000.00 June 25, 2033
Class B4-I (15) $ 3,402,000.00 June 25, 2033
Class B5-I (15) $ 1,361,000.00 June 25, 2033
Class B6-I (15) $ 1,361,609.27 June 25, 2033
Group 1-3 UT Residual 8.00% $ 100.00 June 25, 2033
---------------------------
(1) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) of the Class 1-A3 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 1 at
the beginning of the related Due Period less 8.00%, and the denominator
of which is 8.00% and (ii) the total Scheduled Principal Balance of the
Non-Discount Mortgage Loans in Pool 1 as of the first day of the related
Accrual Period.
(2) For any Distribution Date (and the related Accrual Period) on or prior to
the Class 2-A1 Call Date the Certificate Interest Rate for the Class 2-A1
Certificates is the per annum rate equal to the lesser of (i) LIBOR plus
0.45% and (ii) 8.00%, subject to a minimum rate of 0.45%. For any
Distribution Date (and the related Accrual Period) after the Class 2-A1
Call Date the Certificate Interest Rate for the Class 2-A1 Certificates
is the per annum rate equal to the Adjusted Net WAC for Pool 2.
(3) For any Distribution Date (and the related Accrual Period) on or prior to
the Class 2-A1 Call Date the Certificate Interest Rate for the Class 2-A3
Certificates is the per annum rate equal to 7.55% minus LIBOR, subject to
a minimum rate of 0.00%. For any Distribution Date (and the related
Accrual Period) after the Class 2-A1 Call Date the Certificate Interest
Rate for the Class 2-A3 Certificates is the per annum rate equal to
0.00%.
(4) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) on or prior to the Class 2-A1 Call Date of the
Class 2-A3 Certificates will equal the sum of the Class Principal Amounts
of the Class 2-A1 and Class 2-A2 Certificates immediately preceding such
Distribution Date. The Class Notional Amount with respect to any
Distribution Date (and the related Accrual Period) after the Class 2-A1
Call Date of the Class 2-A3 Certificates will equal $0.00.
(5) For any Distribution Date on or prior to the Class 2-A1 Call Date, the
Class 2-A4 Certificates shall not be entitled to any payments of
interest. For any Distribution Date (and the related Accrual Period)
after the Class 2-A1 Call Date, the Certificate Interest Rate for the
Class 2-A4 Certificates shall be a per annum rate equal to the Net WAC
for Pool 2 for such Distribution Date.
(6) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) on or prior to the Class 2-A1 Call Date of the
Class 2-A5 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 2 at the beginning of the related
Due Period less 8.00%, and the denominator of which is 8.00% and (ii) the
total Scheduled Principal Balance of the Non-Discount Mortgage Loans in
Pool 2 as of the first day of the related Accrual Period. The Class
Notional Amount with respect to any Distribution Date (and the related
Accrual Period) after the Class 2-A1 Call Date of the Class 2-A5
Certificates will equal $0.00.
(7) For any Distribution Date on or prior to the Class 3-A1 Call Date (and
the related Accrual Period) the Certificate Interest Rate for the Class
3-A1 and Class 3-A2 Certificates is the per annum rate equal to the
lesser of (i) LIBOR plus 0.55% and (ii) 8.00%, subject to a minimum rate
of 0.55%. For any Distribution Date after the Class 3-A1 Call Date the
Certificate Interest Rate for the Class 3-A1 and Class 3-A2 Certificates
is the per annum rate equal to the Adjusted Net WAC for Pool 3 for such
Distribution Date.
(8) For any Distribution Date on or prior to the Class 3-A1 Call Date (and
the related Accrual Period) the Certificate Interest Rate for the Class
3-A3 Certificates is the per annum rate equal to 7.45% minus LIBOR,
subject to a minimum rate of 0.00%. For any Distribution Date after the
Class 3-A1 Call Date the Certificate Interest Rate for the Class 3-A3
Certificates is the per annum rate equal to 0.00%
(9) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) on or prior to the Class 3-A1 Call Date of the
Class 3-A3 Certificates will equal the sum of the Class 3-A1 and Class
3-A2 Certificates immediately before such Distribution Date. The Class
Notional Amount with respect to any Distribution Date (and the related
Accrual Period) after the Class 3-A1 Call Date of the Class 3-A3
Certificates will equal $0.00.
(10) For any Distribution Date on or prior to the Class 3-A1 Call Date, the
Class 3-A4 Certificates shall not be entitled to any payments of
interest. For any Distribution Date (and the related Accrual Period)
after the Class 3-A1 Call Date, the Certificate Interest Rate for the
Class 3-A4 Certificates shall be a per annum rate equal to the Net WAC
for Pool 3 for such Distribution Date.
(11) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) on or prior to the Class 3-A1 Call Date of the
Class 3-A5 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 less 8.00%, and the denominator of which is 8.00% and (ii) the
total Scheduled Principal Balance of the Non-Discount Mortgage Loans in
Pool 3 as of the first day of the related Accrual Period. The Class
Notional Amount with respect to any Distribution Date (and the related
Accrual Period) after the Class 3-A1 Call Date of the Class 3-A5
Certificates will equal $0.00.
(12) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) on or prior to the Class 2-A1 Call Date for
the Class B1-I Certificates is the per annum rate equal to 7.00%. The
Certificate Interest Rate with respect to any Distribution Date (and the
related Accrual Period) after the Class 2-A1 Call Date for the Class B1-I
Certificates is the per annum rate equal to the weighted average of the
Group 1 Subordinate Underlying Rate, the Group 2 Subordinate Underlying
Rate and the Group 3 Subordinate Underlying Rate weighted on the basis of
the Group Subordinate Amount for each such Mortgage Pool.
(13) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) on or before the Class 2-A1 Call Date for the
Class B1-I-X Certificates is the per annum rate equal to 1.00%.
(14) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) on or before the Class 2-A1 Call Date of the
Class B1-I-X Certificates is will equal the Class Principal Amount of the
Class B1-I Certificates immediately preceding such Distribution Date. The
Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) after the Class 2-A1 Call Date will equal $0.00.
(15) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) on or prior to the Class 2-A1 Call Date for
each of the Class B2-I, Class B3-I, Class B4-I, Class B5-I and Class B6-I
Certificates is the per annum rate equal to 8.00%. The Certificate
Interest Rate with respect to any Distribution Date (and the related
Accrual Period) after the Class 2-A1 Call Date for each of the Class
B2-I, Class B3-I, Class B4-I, Class B5-I and Class B6-I Certificates is
the per annum rate equal to the weighted average of the Group 1
Subordinate Underlying Rate, the Group 2 Subordinate Underlying Rate and
the Group 3 Subordinate Underlying Rate weighted on the basis of the
Group Subordinate Amount for each such Mortgage Pool.
Group 4 Lower Tier REMIC and Group 4 Upper Tier REMIC:
The Group 4 Lower Tier REMIC will consist of all of the assets
constituting the Group 4 Mortgage Loans (exclusive of the Class B4 Hazard
Obligation, the Class 2-A1 Call Option and Class 3-A1 Call Option) and will be
evidenced by the Group 4 LT Regular Interests which will be uncertificated and
will represent the "regular interests" in the Group 4 Lower Tier REMIC (the
"Group 4 LT Regular Interests") and the Group 4 LT Residual Interest as the
single "residual interest" in the Group 4 Lower Tier REMIC (the "Group 4 LT
Residual Interest"). The Trustee will hold the Group 4 Lower Tier REMIC
regular interests.
The Group 4 Upper Tier REMIC will consist of the Group 4 UT Regular
Interest and will be evidenced by the Group 4 Certificates which will
represent the "regular interests" in the Group 4 Upper Tier REMIC (the "Group
4 UT Regular Interest") and the Group 4 UT Residual Interest as the single
"residual interest" in the Group 4 Upper Tier REMIC (the "Group 4 UT Residual
Interest"). The Class R-II Certificate will represent beneficial ownership of
the Group 4 LT Residual Interest and the Group 4 UT Residual Interest. All
REMIC regular and residual interests created hereby will be retired on or
before the Latest Possible Maturity Date.
The following table irrevocably sets forth the designation, the Group
4 Uncertificated Lower Tier REMIC Pass-Through Rate, the initial
Uncertificated Balance and, solely for the purpose of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date"
for each of the Group 4 Lower Tier REMIC Regular Interest. None of the Group 4
Lower Tier REMIC Regular Interests will be certificated.
Initial Class Assumed
Certificate Principal Final
Class Designation Interest Rate (or Notional) Amount Maturity
----------------- -------------- ------------------- ----------
Class L4-A1 (1) $263,356,000.00 June 25, 2043
Class LB1-II (1) $ 3,402,000.00 June 25, 2043
Class LB2-II (1) $ 1,361,000.00 June 25, 2043
Class LB3-II (1) $ 1,361,000.00 June 25, 2043
Class LB4-II (1) $ 1,361,000.00 June 25, 2043
Class LB5-II (1) $ 680,000.00 June 25, 2043
Class LB6-II (1) $ 682,209.61 June 25, 2043
Group 4 LT Residual (1) $ 100.00 June 25, 2043
(1) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for each of the Class L4-A1, Class LB1-II,
Class LB2-II, Class LB3-II, Class LB4-II, Class LB5-II and Class LB6-II
Certificates is the per annum rate equal to the Net WAC for Pool 4 for
such Distribution Date.
The following table sets forth (or describes) the Group 4 Upper Tier
REMIC Class Designation, Certificate Interest Rate, original Initial Class
Principal Balance or original Class Notional Balance and Assumed Final
Maturity Date for each Class of Certificates comprising the interests in the
Upper Tier REMIC created hereunder each of which, except the Class Group 4 UT
Residual Interest, is hereby designated a REMIC regular interest for federal
income tax purposes:
Initial Class Assumed
Certificate Principal (or Final
Class Designation Interest Rate Notional) Amount Maturity
----------------- ------------- ---------------- ------------
Class 4-A1 (1) 263,356,000.00 June 25, 2033
Class 4-A2 0.30% (2) June 25, 2033
Class B1-II (3) $ 3,402,000.00 June 25, 2033
Class B2-II (3) $ 1,361,000.00 June 25, 2033
Class B3-II (3) $ 1,361,000.00 June 25, 2033
Class B4-II (3) $ 1,361,000.00 June 25, 2033
Class B5-II (3) $ 680,000.00 June 25, 2033
Class B6-II (3) $ 682,209.61 June 25, 2033
Group 4 UT Residual $ 100.00
---------------------------
(1) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class 4-A1 and Class R-II
Certificates is the per annum rate equal to the Net WAC for Pool 4 for
such Distribution Date minus 0.30%, subject to a minimum rate of 0.00%.
(2) The Class Notional Amount with respect to any Distribution Date (and the
related Accrual Period) of the Class 4-A2 Certificates will equal the
Class Principal Amount of the Class 4-A1 Certificates immediately
preceding such Distribution Date.
(3) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for each of the Class B1-II, Class B2-II,
Class B3-II, Class B4-II, Class B5-II and Class B6-II Certificates is the
per annum rate equal to the Net WAC for Pool 4 for such Distribution
Date.
As used herein each Certificate Group is "related" to the Mortgage
Pool having the identical numerical designation, each Senior Certificate is
"related" to the Mortgage Pool and Certificate Group having the identical
numerical designation, and each Subordinate Certificate identified with a "I-"
is "related" to Pool 1, Pool 2 and Pool 3, and each Subordinate Certificate
identified with a "II-" is "related" to Pool 4. As used herein each Class of
Certificates is "affected by" decisions, actions or failures to act with
respect to its "related" Mortgages Loans.
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.
The following table specifies the Class designation, Certificate
Interest Rate, initial Class Principal (or Notional) Amount and minimum
denomination (by dollar amount or Percentage Interest) for each Class of
Certificates constituting the interests in the Trust Fund created hereunder.
Initial Class Minimum Denomination
Certificate Principal (or or Minimum
Class Designation Interest Rate Notional) Amount Percentage Interest
------------------ ------------- ---------------- ---------------------
Class 1-A1 8.00% $109,713,000.00 $ 25,000
Class 1-A2 0.00% $ 509,351.00 $150,000
Class 1-A3 8.00% (1) $1,000,000
Class 2-A1 (2) $51,424,000.00 100%
Class 2-A2 (2) $ 1,000,000.00 $25,000
Class 2-A3 (3) (4) $2,300,000
Class 2-A4 (5) $ 958,956.00 $ 150,000
Class 2-A5 8.00% (6) $1,000,000
Class 3-A1 (7) $46,757,000.00 $ 25,000
Class 3-A2 (7) $ 1,000,000.00 100%
Class 3-A3 (8) (9) $2,300,000
Class 3-A4 (10) $ 437,202.00 $ 150,000
Class 3-A5 8.00% (11) $1,000,000
Class 4-A1 (12) $263,356,000.00 $ 25,000
Class 4-A2 0.30% (13) $5,000,000
Class B1-I (14) $ 4,158,000.00 $ 100,000
Class B1-I-X (15) (16) $3,000,000
Class B2-I (17) $ 1,202,000.00 $ 100,000
Class B3-I (17) $ 655,000.00 $ 100,000
Class B4-I (17) $ 545,000.00 $ 200,000
Class B5-I (17) $ 218,000.00 $ 200,000
Class B6-I (17) $ 337,609.27 $ 200,000
Class B1-II (18) $ 3,402,000.00 $ 100,000
Class B2-II (18) $ 1,361,000.00 $ 100,000
Class B3-II (18) $ 1,361,000.00 $ 100,000
Class B4-II (18) $ 1,361,000.00 $ 200,000
Class B5-II (18) $ 680,000.00 $ 200,000
Class B6-II (18) $ 682,209.61 $ 200,000
Class R-I 8.00% $ 100.00 $100
Class R-II (19) $ 100.00 $100
---------------------------
(1) The Class Notional Amount with respect to any Distribution
Date (and the related Accrual Period) of the Class 1-A3 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 1 at the beginning of the related Due Period
less 8.00%, and the denominator of which is 8.00% and (ii) the total
Scheduled Principal Balance of the Non-Discount Mortgage Loans in
Pool 1 as of the first day of the related Accrual Period.
(2) For any Distribution Date (and the related Accrual Period) on
or prior to the Class 2-A1 Call Date, the Certificate Interest Rate
for the Class 2-A1 Certificates shall be a per annum rate equal to
the lesser of (i) LIBOR plus 0.45% and (ii) 8.00%, subject to a
minimum rate of 0.45%. For any Distribution Date (and the related
Accrual Period) after the Class 2-A1 Call Date, the Certificate
Interest Rate for the Class 2-A1 Certificates shall be a per annum
rate equal to the Net WAC for Pool 2 for such Distribution Date.
(3) For any Distribution Date (and the related Accrual Period) on
or prior to the Class 2-A1 Call Date, the Certificate Interest Rate
for the Class 2-A3 Certificates shall be a per annum rate equal to
7.55% minus LIBOR, subject to a minimum rate of 0.00%. For any
Distribution Date (and the related Accrual Period) after the Class
2-A1 Call Date, the Certificate Interest Rate for the Class 2-A3
Certificates shall be a per annum rate equal to 0.00%.
(4) The Class Notional Amount with respect to any Distribution
Date (and the related Accrual Period) on or prior to the Class 2-A1
Call Date of the Class 2-A3 Certificates will equal the sum of the
Class Principal Amounts of the Class 2-A1 and Class 2-A2 Certificates
immediately preceding such Distribution Date. The Class Notional
Amount with respect to any Distribution Date (and the related Accrual
Period) after the Class 2-A1 Call Date of the Class 2-A3 Certificates
will equal $0.00.
(5) For any Distribution Date on or prior to the Class 2-A1 Call
Date, the Class 2-A4 Certificates shall not be entitled to any
payments of interest. For any Distribution Date (and the related
Accrual Period) after the Class 2-A1 Call Date, the Certificate
Interest Rate for the Class 2-A4 Certificates shall be a per annum
rate equal to the Net WAC for Pool 2 for such Distribution Date.
(6) The Class Notional Amount with respect to any Distribution
Date (and the related Accrual Period) on or prior to the Class 2-A1
Call Date of the Class 2-A5 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 2 at
the beginning of the related Due Period less 8.00%, and the
denominator of which is 8.00% and (ii) the total Scheduled Principal
Balance of the Non-Discount Mortgage Loans in Pool 2 as of the first
day of the related Accrual Period. The Class Notional Amount with
respect to any Distribution Date (and the related Accrual Period)
after the Class 2-A1 Call Date of the Class 2-A5 Certificates will
equal $0.00.
(7) For any Distribution Date (and the related Accrual Period) on
or prior to the Class 3-A1 Call Date, the Certificate Interest Rate
for the Class 3-A1 and Class 3-A2 Certificates shall be a per annum
rate equal to the lesser of (i) LIBOR plus 0.55% and (ii) 8.00%,
subject to a minimum rate of 0.55%. For any Distribution Date (and
the related Accrual Period) after the Class 3-A1 Call Date, the
Certificate Interest Rate for the Class 3-A1 and Class 3-A2
Certificates shall be a per annum rate equal to the Net WAC for Pool
3 for such Distribution Date.
(8) For any Distribution Date (and the related Accrual Period)
prior to the Class 3-A1 Call Date, the Certificate Interest Rate for
the Class 3-A3 Certificates is the per annum rate equal to 7.45%
minus LIBOR, subject to a minimum rate of 0.00%. For any Distribution
Date (and the related Accrual Period) on or after the Class 3-A1 Call
Date, the Certificate Interest Rate for the Class 3-A3 Certificates
shall be a per annum rate equal to 0.00%.
(9) The Class Notional Amount with respect to any Distribution
Date (and the related Accrual Period) on or prior to the Class 3-A1
Call Date of the Class 3-A3 Certificates will equal the sum of the
Class 3-A1 and Class 3-A2 Certificates immediately before such
Distribution Date. The Class Notional Amount with respect to any
Distribution Date (and the related Accrual Period) after the Class
3-A1 Call Date of the Class 3-A3 Certificates will equal $0.00.
(10) For any Distribution Date on or prior to the Class 3-A1 Call
Date, the Class 3-A4 Certificates shall not be entitled to any
payments of interest. For any Distribution Date (and the related
Accrual Period) after the Class 3-A1 Call Date, the Certificate
Interest Rate for the Class 3-A4 Certificates shall be a per annum
rate equal to the Net WAC for Pool 3 for such Distribution Date.
(11) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) on or prior to the Class 3-A1 Call
Date of the Class 3-A5 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 less 8.00%, and the denominator
of which is 8.00% and (ii) the total Scheduled Principal Balance of
the Non-Discount Mortgage Loans in Pool 3 as of the first day of the
related Accrual Period. The Class Notional Amount with respect to any
Distribution Date (and the related Accrual Period) after the Class
3-A1 Call Date of the Class 3-A5 Certificates will equal $0.00.
(12) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) for the Class 4-A1 Certificates
is the per annum rate equal to the Net WAC for Pool 4 for such
Distribution Date minus 0.30%, subject to a minimum rate of 0.00%.
(13) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) of the Class 4-A2 Certificates will
equal the Class Principal Amount of the Class 4-A1 Certificates
immediately preceding such Distribution Date.
(14) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) before the Class 2-A1 Call Date
for the Class B1-I Certificates is the per annum rate equal to 7.00%.
The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) after the Class 2-A1 Call Date for
the Class B1-I Certificates is the per annum rate equal to the
weighted average of the Group 1 Subordinate Underlying Rate, the
Group 2 Subordinate Underlying Rate and the Group 3 Subordinate
Underlying Rate weighted on the basis of the Group Subordinate Amount
for each such Mortgage Pool.
(15) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) on or before the Class 2-A1 Call
Date for the Class B1-I-X Certificates is the per annum rate equal to
1.00%. The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) after the Class 2-A1 Call Date
for the Class B1-I-X Certificates is the per annum rate equal to
0.00%.
(16) The Class Notional Amount with respect to any Distribution Date
(and the related Accrual Period) on or before the Class 2-A1 Call
Date of the Class B1-I-X Certificates will equal the Class Principal
Amount of the Class B1-I Certificates immediately preceding such
Distribution Date. The Class Notional Amount with respect to any
Distribution Date (and the related Accrual Period) after the Class
2-A1 Call Date will equal $0.00.
(17) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) on or prior to the Class 2-A1
Call Date for each of the Class B2-I, Class B3-I, Class B4-I, Class
B5-I and Class B6-I Certificates is the per annum rate equal to
8.00%. The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) after the Class 2-A1 Call Date
for each of the Class B2-I, Class B3-I, Class B4-I, Class B5-I and
Class B6-I Certificates is the per annum rate equal to the weighted
average of the Group 1 Subordinate Underlying Rate, the Group 2
Subordinate Underlying Rate and the Group 3 Subordinate Underlying
Rate weighted on the basis of the Group Subordinate Amount for each
such Mortgage Pool.
(18) The Certificate Interest Rate with respect to any Distribution
Date (and the related Accrual Period) for each of the Class B1-II,
Class B2-II, Class B3-II, Class B4-II, Class B5-II and Class B6-II
Certificates is the per annum rate equal to the Net WAC for Pool 4
for such Distribution Date.
(19) The Certificate Interest Rate with respect to any Distribution
Date (and the related Acrual Period) for the Class R-II Certificate
is the per annum rate equal to the Net WAC for Pool 4 for such
Distribution Date.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $491,118,527.88.
For purposes hereof, each of the four pools of mortgage loans
constitute a fully separate and distinct sub-trust.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicers, 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 related Master Servicer or (y) as provided in the applicable
Servicing Agreement, to the extent applicable to the related Servicer, subject
to the requirements of this Agreement.
Accountant: A person engaged in the practice of accounting who
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accretion Directed Certificate: None.
Accretion Termination Date: None.
Accrual Amount: As to any Class of Accrual Certificates and each
Distribution Date through the Credit Support Depletion Date, the sum of (x)
any amount of Accrued Certificate Interest allocable to such Class pursuant to
Section 5.02(a)(ii) on such Distribution Date and (y) any Interest Shortfall
allocable to such Class pursuant to Section 5.02(a)(iii) on such Distribution
Date. As to any Class of Accrual Certificates and each Distribution Date after
the Credit Support Depletion Date, zero.
Accrual Certificate: None.
Accrual Component: None.
Accrual Period: With respect to any Distribution Date and any Class
of Certificates (other than any Class 2-A1, Class 2- A2, Class 2-A3, Class
3-A1, Class 3-A2 and Class 3-A3 Certificates), the one-month period beginning
immediately following the end of the preceding Accrual Period (or from the
Cut-off Date, in the case of the first Accrual Period) and ending on the last
day of the month immediately preceding the month in which such Distribution
Date occurs. With respect to any Distribution Date and any Class 2-A1, Class
2-A2, Class 2-A3, Class 3-A1, Class 3-A2 and Class 3-A3 Certificates, the
period beginning on the Distribution Date in the calendar month preceding the
month in which the related Distribution Date occurs (or from May 25, 2001, in
the case of the first Accrual Period) and ending on the day immediately
preceding the related Distribution Date.
Accrued Certificate Interest: As to any Class of Certificates (other
than any Principal Only Certificates on or prior to the related Call Date) and
any Distribution Date, the product of the Certificate Interest Rate for such
Class of Certificates and the Class Principal Amount (or Class Notional
Amount) of such Class of Certificates immediately preceding such Distribution
Date, as reduced by such Class's share of the interest portion of (i) any
Excess Losses for such Distribution Date and (ii) any Relief Act Reduction, in
each case allocable among the Non-AP Senior Certificates of the related
Certificate Group pro rata based on the Accrued Certificate Interest otherwise
distributable thereto, and allocable to the Subordinate Certificates pro rata
based on interest accrued on their respective Principal Amounts. Interest
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
Act: As defined in Section 3.03(c).
Additional Collateral: Marketable securities pledged by the
Mortgagors in accordance with the terms of the related Mortgage or Mortgage
Note, as applicable.
Adjusted Net Mortgage Rate: For each Discount Mortgage Loan for any
date, the percentage equivalent of the fraction, the numerator of which is the
product of (i) the applicable Net Mortgage Rate and (ii) the Scheduled
Principal Balance and the denominator of which is the applicable Adjusted
Principal Balance.
Adjusted Net WAC: With respect to any Distribution Date and (1) in
the case of Pool 1, Pool 2 and Pool 3, the weighted average of (A) the
weighted average of the Net Mortgage Rates of the Non-Discount Mortgage Loans
in Pool 1, Pool 2 or Pool 3, as applicable, at the start of the related Due
Period, weighted on the basis of their Scheduled Principal Balances and (B)
the weighted average of the Adjusted Net Mortgage Rates of the Discount
Mortgage Loans at the start of the related Due Period, weighted on the basis
of their Adjusted Principal Balances and (2) in the case of Pool 4, the
weighted average of the Net Mortgage Rates of the Mortgage Loans in Pool 4.
Adjusted Principal Balance: For each Discount Mortgage Loan for any
date, the product of (i) the Scheduled Principal Balance of such Mortgage
Loans and (ii) the applicable Non-AP Percentage.
Advance: An advance of the aggregate of payments of principal and
interest (net of the applicable Master Servicing Fee and the applicable
Servicing Fee) on one or more Mortgage Loans that were due on the Due Date in
the related Due Period and not received as of the close of business on the
related Determination Date, required to be made by or on behalf of the related
Master Servicer and the related Servicer (or by the Trustee) pursuant to
Section 5.04.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Principal Balance: The aggregate of the Scheduled Principal
Balances for all Mortgage Loans at any date of determination.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
AP Percentage: As to any Discount Mortgage Loan in Pool 1, Pool 2 or
Pool 3, the percentage equivalent of a fraction, the numerator of which is the
applicable Designated Rate minus the Net Mortgage Rate of such Discount
Mortgage Loan and the denominator of which is the applicable Designated Rate.
As to any Non-Discount Mortgage Loan in Pool 1, Pool 2 or Pool 3, 0%. As to
any Mortgage Loan in Pool 4, 0%.
AP Principal Distribution Amount: For any Distribution Date and for
each of Certificate Group 1, Certificate Group 2 and Certificate Group 3, 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 deposited into the Certificate Account
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.
Appraised Value: With respect to any Mortgage Loan, the amount set
forth in an appraisal made in connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however, that
the Trustee shall not be responsible for determining whether any such
assignment is in recordable form.
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 related Master
Servicer through the Remittance Date applicable to each Servicer and
deposited to the related Collection Account by such 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 such Master Servicer or any Servicer (or the
Trustee in its capacity as successor Master Servicer) for such
Distribution Date, any Compensating Interest Payment for such date and
Mortgage Pool and any amounts paid by any Servicer in respect of
Prepayment Interest Shortfalls in respect of the related Mortgage Loans
for such date, but not including:
(A) all amounts distributed pursuant to Section 5.02 on prior
Distribution Dates;
(B) all Scheduled Payments of principal and interest collected
but due on a date subsequent to the related Due Period;
(C) all Principal Prepayments received or identified by the
applicable Servicer after the applicable Prepayment Period (together
with any interest payments received with such prepayments to the
extent that they represent the payment of interest accrued on the
related Mortgage Loans for the period subsequent to the applicable
Prepayment Period);
(D) any other unscheduled collection, including Net Liquidation
Proceeds and Insurance Proceeds, received by the Master Servicer
after the applicable Prepayment Period;
(E) all fees and amounts due or reimbursable to the Master
Servicer, the Trustee, the Securities Administrator, the Custodian
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 fees, penalties and other amounts collected by the
Group 4 Master Servicer in connection with the modification of any
Pool 4 Mortgage Loan;
(H) with respect to Pool 4, any increase since the Cut-off Date
in the amount of interest to be paid on certain Mortgage Loans based
on the loss of the benefits of an employee/director interest rate
reduction agreement; and
(ii) any other payment made by the related Master Servicer, any
Servicer, the Seller, the Depositor, or any other Person with respect to
such Distribution Date (including the Purchase Price with respect to any
Mortgage Loan purchased by the Seller, the Depositor or any other
Person).
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, $131,326 with respect
to Pool 1, Pool 2 and Pool 3 (in the aggregate), and with respect to Pool 4,
$100,000, which amount shall be reduced from time to time by the amount of
Bankruptcy Losses with respect to Mortgage Loans in the related Mortgage Pools
or Pool that are allocated to the Certificates.
Bankruptcy Losses: With respect to the Mortgage Loans in the related
Mortgage Pool, losses that are incurred as a result of Deficient Valuations
and any reduction, in a bankruptcy proceeding, of the amount of the Scheduled
Payment on a Mortgage Loan other than as a result of a Deficient Valuation.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the
Securities Administrator 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, the Securities Administrator 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 2-A1, Class 2-A3, Class 2-A4, Class 2-A5, Class 3-A1, Class
3-A3, Class 3-A4, Class 3-A5, Class 4-A1, Class 4-A2, Class B1-I, Class
B1-I-X, Class B2-I, Class B3-I, Class B4-I, Class B5-I, B6-I, Class B1-II,
Class B2-II, Class B3-II, Class B4-II, Class B5-II and Class B6-II.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a
day on which banking institutions in Colorado, Chicago, Illinois, New York,
the city in which the Corporate Trust Office of the Securities Administrator
is located, or (iii) with respect to any Remittance Date or any Servicer
reporting date, the States specified in the definition of "Business Day" in
the applicable Servicing Agreement, are authorized or obligated by law or
executive order to be closed.
Call Certificates: The Class 2-A2 and Class 3-A2 Certificates.
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 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, and, in the case of a Subordinate Certificate, any Subordinate
Certificate Writedown Amount allocated to such Certificates. For purposes of
Article V hereof, unless specifically provided to the contrary, Certificate
Principal Amounts shall be determined as of the close of business of the
immediately preceding Distribution Date, after giving effect to all
distributions made on such date. Notional Certificates are issued without
Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of
"Holder."
Class: All Certificates bearing the same class designation, and, in
the case of each Lower Tier REMIC, all Lower Tier Interests bearing the same
designation.
Class 2-A1 Call Date: The Distribution Date in October 2004.
Class 2-A1 Call Option: As defined in Section 7.04.
Class 2-A1 Purchase Price: As defined in Section 7.04.
Class 3-A1 Call Date: The Distribution Date in June 2006.
Class 3-A1 Call Option: As defined in Section 7.04.
Class 3-A1 Purchase Price: As defined in Section 7.04.
Class AP Certificate: Any Class 1-A2, Class 2-A4 or Class 3-A4
Certificate.
Class AP Deferred Amount: As to any Distribution Date on or prior to
the related Credit Support Depletion Date and, with respect to each Class of
Class AP Certificates, (i) the aggregate of the applicable AP Percentage of
the principal portion of each Realized Loss (other than any Excess Loss) for
such Distribution Date on a Discount Mortgage Loan in the related Mortgage
Pool; and (ii) all such amounts previously allocated thereto and not
distributed to such Class as a Class AP Deferred Amount.
Class B Certificate: Any Class B1-I, Class B1-I-X, Class B2-I, Class
B3-I, Class B4-I, Class B5-I, Class B6-I, Class B1-II, Class B2-II, Class
B3-II, Class B4-II, Class B5-II or Class B6-II Certificate.
Class B4 Certificates: The Class B4-I and Class B4-II Certificates.
Class B4 Hazard Obligation: An obligation separate and apart from any
REMIC of the Class B4-I Certificateholder and the Class B4-II Certifcateholder
to payment Special Hazard Losses as defined in Section 5.03.
Class LT-R Interest: The sole residual interest in the Lower Tier
REMIC.
Class Notional Amount: With respect to each Class of Notional
Certificates, the applicable class notional amount calculated as provided in
the Preliminary Statement hereto.
Class Percentage: With respect to each Class of Subordinate
Certificates, for each Distribution Date, the percentage obtained by dividing
the Class Principal Amount of such Class immediately prior to such
Distribution Date by the sum of the Class Principal Amounts of all Classes of
the related Certificate Group, 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: May 30, 2001.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Account: The separate accounts established and maintained
by each Master Servicer pursuant to Section 4.01.
Compensating Interest: The lesser of (i) the sum of (a) the aggregate
Master Servicing Fee payable with respect to the Pool 4 Mortgage Loans, (b)
the aggregate Payoff Earnings with respect to the Pool 4 Mortgage Loans and
(c) the aggregate Payoff Interest with respect to the Pool 4 Mortgage Loans
and (ii) the aggregate Uncollected Interest with respect to the Pool 4
Mortgage Loans.
Compensating Interest Payment: With respect to Mortgage Pool 1,
Mortgage Pool 2 and Mortgage Pool 3 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 related Master Servicer for any
Distribution Date shall not exceed the Master Servicing Fee that would be
payable to such Master Servicer without giving effect to any Compensating
Interest Payment. With respect to Mortgage Pool 4 and any Distribution Date,
Compensating Interest.
Component: None.
Component Certificate: None.
Component Interest Rate: None.
Component Notional Amount: Not applicable.
Component Principal Amount: Not applicable.
Component Writedown Amount: Not applicable.
Control: The meaning specified in Section 8-106 of the UCC.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Veterans Administration.
Convertible Mortgage Loan: Any Mortgage Loan which, at the option of
the Mortgagor and in accordance with the terms of the related Mortgage Note,
may have the related Mortgage Rate converted from an adjustable rate to a
fixed rate or any other rate offered at the time by the related originator.
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; (iii) the original executed Proprietary Lease and
the assignment of the Proprietary Lease endorsed in blank; (iv) the original
executed Recognition Agreement and, if available, 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: With respect to the Securities Administrator,
the principal corporate trust office of the Securities Administrator at which,
at any particular time, its corporate trust business shall be administered,
which office at the date hereof is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Institutional Trust Services/SASCO
2001-8A, and with respect to the Trustee, 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 Bank One,
National Association, ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Global Corporate Trust Services.
Corresponding Class: With respect to any class of Lower Tier
Interests, the Class of Certificates so designated in the Preliminary
Statement hereto. With respect to any Class of Certificates, the class or
classes of Lower Tier Interests so designated in the Preliminary Statement
hereto.
Corresponding Component: None.
Credit Score: With respect to any Mortgage Loan, a numerical
assessment of default risk with respect to the Mortgagor under such Mortgage
Loan, determined on the basis of a methodology developed by Fair, ▇▇▇▇▇ & Co.,
Inc.
Credit Support Depletion Date: With respect to the Group 1, Group 2
and Group 3 Certificates, the Distribution Date on which, giving effect to all
distributions on such date, the aggregate Certificate Principal Amount of the
Class B1-I, Class B2-I, Class B3-I, Class B4-I, Class B5-I and Class B6-I
Certificates is reduced to zero. With respect to the Group 4 Certificates, the
Distribution Date on which, giving effect to all distributions on such date,
the aggregate Certificate Principal Amount of the Class B1-II, Class B2-II,
Class B3-II, Class B4-II, Class B5-II and Class B6-II Certificates is reduced
to zero.
Credit Support Percentage: As to any Class of Subordinate
Certificates and any Distribution Date, the sum of the Class Percentages of
all Classes of Certificates that rank lower in priority than such Class.
Curtailment: Any payment (exclusive of any prepayment penalty) of
principal on a Mortgage Loan, made by or on behalf of the related Mortgagor,
other than a Scheduled Payment, a Prepaid Scheduled Payment or a Payoff, which
is applied to reduce the outstanding principal balance of the Mortgage Loan.
Curtailment Shortfall: With respect to any Curtailment applied with a
Scheduled Payment other than a Prepaid Scheduled Payment, an amount equal to
one month's interest on such Curtailment at the applicable Pass-Through Rate
on such Mortgage Loan.
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: May 1, 2001.
Cut-off Date Aggregate Principal Balance: With respect to the
Mortgage Loans in the Trust Fund on the Closing Date, the Aggregate Principal
Balance for all such Mortgage Loans as of the Cut-off Date.
DCR: Duff & ▇▇▇▇▇▇ Credit Rating Co., or any successor in interest.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction of the Scheduled Payment that the related Mortgagor is obligated to
pay on any Due Date as a result of any proceeding under Bankruptcy law or any
similar proceeding.
Deferred Interest: With respect to any Class of Negative Amortization
Certificates and any Distribution Date, the lesser of (x) the applicable
Interest Distribution Amount for such date (without giving effect to any
Deferred Interest) and (y) the aggregate Mortgage Loan Negative Amortization,
if any, for the related Due Period.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding indebtedness under such Mortgage Loan, which
valuation results from a proceeding under Bankruptcy law or any similar
proceeding.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Deposit Date: With respect to each Distribution Date, 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 each Pool, 8.00% per annum.
Determination Date: With respect to each of Pool 1, Pool 2 and Pool 3
and each Distribution Date, the day of the latest Remittance Date immediately
preceding such Distribution Date. With respect to Pool 4 and each Distribution
Date, a day not later than the 10th day preceding such Distribution Date, as
determined by the Group 4 Master Servicer.
Discount Mortgage Loan: With respect to each of Pool 1, Pool 2 and
Pool 3, any Mortgage Loan with a Net Mortgage Rate less than 8.00% 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 June
2001.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable
to the Rating Agencies or (ii) an account or accounts the deposits in which
are insured by the FDIC to the limits established by such corporation,
provided that any such deposits not so insured shall be maintained in an
account at a depository institution or trust company whose commercial paper or
other short term debt obligations (or, in the case of a depository institution
or trust company which is the principal subsidiary of a holding company, the
commercial paper or other short term debt or deposit obligations of such
holding company or depository institution, as the case may be) have been rated
by each Rating Agency in its highest short-term rating category, or (iii) a
segregated trust account or accounts (which shall be a "special deposit
account") maintained with the trust department of a federal or state chartered
depository institution, national banking association or trust company, acting
in its fiduciary capacity or (iv) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the short-term unsecured debt obligations of such holding
company) are rated "A-1" (or the equivalent) by each of the Rating Agencies at
the time any amounts are held on deposit therein. Such institution may be a
Servicer if the applicable Servicing Agreement requires the Servicer to
provide the Master Servicer with written notice on the Business Day following
the date on which the Servicer determines that such Servicer's short-term debt
and unsecured long-term debt ratings fail to meet the requirements of the
preceding sentence. 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 Trustee,
either Master Servicer, 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. Such
investments in this subsection (viii) may include money market
mutual funds or common trust funds, including any other fund for
which the Trustee, the Securities Administrator, either Master
Servicer or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or
subcustodian (each, a "Bank"), notwithstanding that (x) the Trustee,
the Securities Administrator, either Master Servicer or an affiliate
thereof charges and collects fees and expenses from such funds for
services rendered, (y) the Trustee, the Securities Administrator,
either Master Servicer or an affiliate thereof charges and collects
fees and expenses for services rendered pursuant to this Agreement,
and (z) services performed for such funds and pursuant to this
Agreement may converge at any time. The Securities Administrator
specifically authorizes the related Bank or an affiliate thereof to
charge and collect from the Securities Administrator such fees as
are collected from all investors in such funds for services rendered
to such funds (but not to exceed investment earnings thereof);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: Any Class R-I, Class R-II, Class B4-I,
Class B5-I, Class B6-I, Class B4-II, Class B5-II or Class B6-II Certificate;
any Certificate with a rating below the lowest applicable rating permitted
under the Underwriter's Exemption.
Escrow Account: Any account established and maintained by the
applicable Servicer pursuant to the applicable Servicing Agreement.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.14(a).
Excess Loss: Any Bankruptcy Loss, or portion thereof, in excess of
the then-applicable Bankruptcy Loss Limit, any Fraud Loss, or portion thereof,
in excess of the then-applicable Fraud Loss Limit, and any Special Hazard
Loss, or portion thereof, in excess of the then-applicable Special Hazard Loss
Limit.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: ▇▇▇▇▇▇▇ Mac, a corporate instrumentality of the United States
created and existing under Title III of the Emergency Home Finance Act of
1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: With respect to Group 1, Group 2
and Group 3 and the Class B1-I, Class B2-I, Class B3-I, Class B4-I, Class B5-I
and Class B6-I Certificates, May 25, 2031; with respect to Group 4 and the
Class B1-II, Class B2-II, Class B3-II, Class B4-II, Class B5-II and Class
B6-II Certificates, May 25, 2041.
Financial Asset: The meaning specified in Section 8-102(a)(9) of the
UCC.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fitch: Fitch, Inc., or any successor in interest.
FNMA: ▇▇▇▇▇▇ ▇▇▇, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
Fraud Loss: Any Realized Loss on a Liquidated Mortgage Loan sustained
by reason of a default arising from fraud, dishonesty or misrepresentation in
connection with the related Mortgage Loan, as reported by the Servicer to the
Master Servicer.
Fraud Loss Limit: With respect to any Distribution Date (x) prior to
the first anniversary of the Cut-off Date, with respect to Pool 1, Pool 2 and
Pool 3 (in the aggregate), $2,189,153, and with respect to Pool 4, $2,722,034,
less the aggregate of Fraud Losses with respect to Mortgage Loans in the
related Mortgage Pools or Pool since the Cut-off Date, and (y) from the first
to the fourth anniversary of the Cut-off Date, as to the related Mortgage
Pools or Pool, an amount equal to (1) the lesser of (a) the applicable Fraud
Loss Limit as of the most recent anniversary of the Cut-off Date and (b) 1% of
the aggregate principal balance of all the Mortgage Loans in the related
Mortgage Pools or Pool as of the most recent anniversary of the Cut-off Date
less (2) the aggregate of Fraud Losses since the most recent anniversary of
the Cut-off Date. On or after the fifth anniversary of the Cut-off Date, the
Fraud Loss Limit for each Mortgage Pool shall be zero.
Global Securities: The global certificates representing the
Book-Entry Certificates.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Group: Any of Group 1, Group 2, Group 3 or Group 4.
Group 1: All of the Group 1 Certificates.
Group 1 Certificate: Any Class 1-A1, Class 1-A2, Class 1-A3 or Class
R-I Certificate.
Group 1 Subordinate Underlying Rate: 8.00% per annum.
Group 1-3 Mortgage Loans: the Pool 1 Mortgage Loans, the Pool 2
Mortgage Loans, the Pool 3 Mortgage Loans.
Group 1-3 Certificates: the Group 1 Certificates, Group 2
Certificates, and Group 3 Certificates.
Group 1-3 LT Regular Interests: As defined in the Preliminary
Statement.
Group 1-3 LT Residual Interest: As defined in the Preliminary
Statement.
Group 1-3 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.
Group 1-3 Subordinate Percentage: With respect to any Distribution
Date, the sum of the Principal Amounts of the Class B1-I, Class B2-I, Class
B3-I, Class B4-I, Class B5-I and Class B6-I Certificates divided by the sum of
the Non-AP Pool Balances for Pool 1, Pool 2 and Pool 3 immediately prior to
such date.
Group 1-3 UT Regular Interests: As defined in the Preliminary
Statement.
Group 1-3 UT Residual Interest: As defined in the Preliminary
Statement.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class 2-A1, Class 2-A2, Class 2-A3, Class
2-A4 or Class 2-A5 Certificate.
Group 2 Subordinate Underlying Rate: With respect to each Accrual
Period related to a Distribution Date on or prior to the Class 2-A1 Call Date,
8.00% per annum; with respect to each Accrual Period following the Class 2-A1
Call Date, the Net WAC of the Mortgage Loans in Pool 2.
Group 3: All of the Group 3 Certificates.
Group 3 Certificate: Any Class 3-A1, Class 3-A2, Class 3-A3, Class
3-A4 or Class 3-A5 Certificate.
Group 3 Subordinate Underlying Rate: With respect to each Accrual
Period related to a Distribution Date on or prior to the Class 3-A1 Call Date,
8.00% per annum; with respect to each Accrual Period following the Class 3-A1
Call Date, the Net WAC of the Mortgage Loans in Pool 3.
Group 4: All of the Group 4 Certificates.
Group 4 Certificates: Any Class 4-A1, Class 4-A2 or Class R-II
Certificate.
Group 4 LT Regular Interests: As defined in the Preliminary Statement.
Group 4 LT Residual Interest: As defined in the Preliminary Statement.
Group 4 Master Servicer: Washington Mutual Mortgage Securities Corp.,
or any successor in interest, or if any successor master servicer shall be
appointed as herein provided, then such successor master servicer.
Group Subordinate Amount: With respect to any Mortgage Pool and any
Distribution Date, the amount, if any, by which the Non-AP Pool Balance (or,
in the case of Pool 4, the Pool Balance) of such Mortgage Pool for the
immediately preceding Distribution Date exceeds the sum of the aggregate of
the Certificate Principal Amounts of the Non-AP Senior Certificates (or, in
the case of Group 4, the Senior Certificates) of the related Certificate Group
immediately prior to the related Distribution Date.
Group 4 UT Regular Interests: As defined in the Preliminary Statement.
Group 4 UT Residual Interest: As defined in the Preliminary Statement.
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
Securities Administrator, the Trustee, either Master 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 Securities
Administrator, either Master Servicer and any Servicer in determining whether
any Certificates are registered to an Affiliate of the Depositor, the
Securities Administrator, such Master Servicer or such Servicer.
HUD: The United States Department of Housing and Urban Development,
or any successor thereto.
Independent: When used with respect to any Accountants, a Person who
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Initial LIBOR Rate: 4.09%.
Insurance Policy: Any Primary Mortgage Insurance Policy and any
standard hazard insurance policy, flood insurance policy, earthquake insurance
policy or title insurance policy relating to the Mortgage Loans or the
Mortgaged Properties, to be in effect as of the Closing Date or thereafter
during the term of this Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
the related Servicer in connection with procuring such proceeds, (ii) to be
applied to restoration or repair of the related Mortgaged Property, or (iii)
required to be paid over to the Mortgagor pursuant to law or the related
Mortgage Note.
Interest Distribution Amount: Not applicable.
Interest Shortfall: With respect to any Class of Certificates (other
than a Principal Only Certificate on or prior to the related Call Date) and
any Distribution Date, any Accrued Certificate Interest not distributed (or
added to principal) with respect to any previous Distribution Date, other than
any Net Prepayment Interest Shortfalls.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
Latest Possible Maturity Date: The Distribution Date in June 25,
2042.
▇▇▇▇▇▇ 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 2-A1, Class 2-A2, Class 2-A3, Class
3-A1, Class 3-A2 or Class 3-A3 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.
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: Either the Group 1-3 Master Servicer or the Group 4
Master Servicer.
Master Servicers: The Group 1-3 Master Servicer and the Group 4
Master Servicer.
Master Servicer Remittance Date: No later than 2:00 p.m. eastern time
two Business Days after each Remittance Date; provided, however in no event
shall the Master Servicer Remittance Date be later than the Business Day
immediately preceding the Distribution Date.
Master Servicing Fee: As to any Distribution Date and each related
Mortgage Loan, an amount equal to the product of the applicable Master
Servicing Fee Rate and the outstanding principal balance of such Mortgage Loan
as of the first day of the related Due Period. The Master Servicing Fee for
any Mortgage Loan shall be payable in respect of any Distribution Date solely
from the interest portion of the Scheduled Payment or other payment or
recovery with respect to such Mortgage Loan.
Master Servicing Fee Rate: With respect to the Group 1-3 Master
Servicer, 0.01% per annum. With respect to the Group 4 Master Servicer, 0.02%
per annum.
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 or leasehold interest in real property securing a Mortgage Note,
together with improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the
Trustee or a Custodian pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage or a manufactured housing contract
conveyed, transferred, sold, assigned to or deposited with the Trustee
pursuant to Section 2.01 or Section 2.05, including without limitation, each
Mortgage Loan listed on the Mortgage Loan Schedules, as amended from time to
time.
Mortgage Loan Sale Agreement: The agreement, dated as of May 1, 2001,
for the sale of the Group 1, Group 2 and Group 3 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 to reflect the addition of Mortgage Loans to, or the deletion of
Mortgage Loans from, the Trust Fund.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Any of Pool 1, Pool 2, Pool 3 or Pool 4.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan reduced by the number of basis points
by which a mortgage interest rate is increased for certain Mortgage Loans in
Pool 4 based on the loss of the benefits of an employee/director interest rate
reduction agreement.
Mortgaged Property: Either of (x) the fee simple or leasehold
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 and Servicing Fees 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 Master Servicing Fee Rate,
the applicable Servicing Fee Rate, 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 applicable Servicers with respect
to such shortfalls and any amount that is required to be paid by the
applicable Master Servicer in respect of such shortfalls pursuant to this
Agreement.
Net WAC: With respect to any Pool and each Distribution Date, the
weighted average of the Net Mortgage Rates of the Mortgage Loans at the
beginning of the related Due Period weighted on the basis of their Scheduled
Principal Balances.
Non-AP Percentage: As to any Discount Mortgage Loan in Pool 1, Pool 2
or Pool 3, the percentage equivalent of the fraction, the numerator of which
is the Net Mortgage Rate of such Discount Mortgage Loan and the denominator of
which is the applicable Designated Rate. As to any Non-Discount Mortgage Loan
in Pool 1, Pool 2 or Pool 3, 100%. As to any Mortgage Loan in Pool 4, 100%.
Non-AP Pool Balance: As to each of Pool 1, Pool 2 or Pool 3 and any
Distribution Date, the sum of the applicable Non-AP Percentage of the
Scheduled Principal Balance of each Mortgage Loan included in such Mortgage
Pool. As to Pool 4 and any Distribution Date, the aggregate Scheduled
Principal Balance of each Mortgage Loan included in such Mortgage Pool.
Non-AP Senior Certificate: Any Class 1-A1, Class 1-A3, Class 2-A1,
Class 2-A2, Class 2-A3, Class 2-A5, Class 3-A1, Class 3-A2, Class 3-A3, Class
3-A5, Class 4-A1, Class 4-A2, Class R-I or Class R-II Certificate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Discount Mortgage Loan: With respect to each of Pool 1, Pool 2
and Pool 3, any Mortgage Loan with a Net Mortgage Rate equal to or greater
than 8.00% per annum.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than (i) a citizen or resident of
the United States; (ii) a corporation (or entity treated as a corporation for
tax purposes) created or organized in the United States or under the laws of
the United States or of any state thereof, including, for this purpose, the
District of Columbia; (iii) a partnership (or entity treated as a partnership
for tax purposes) organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in gross income for
United States income tax purposes regardless of its source; or (v) a trust, if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last
clause of the preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
U.S. Persons prior to such date, may elect to continue to be U.S. Persons.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class 1-A3, Class 2-A3, Class 2-A5, Class
3-A3, Class 3-A5, Class 4-A2 or Class B1-I-X Certificate.
Notional Component: None.
Offering Document: Either of the private placement memorandum dated
May 29, 2001 relating to the Class B4-I, Class B5-I, Class B6-I, Class B4-II,
Class B5-II and Class B6-II Certificates, the private placement memorandum
dated May 29, 2001 relating to the Class 2-A2 and Class 3-A2 Certificates or
the Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee or the
Securities Administrator, as the case may be.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee or the Securities
Administrator, as the case may be, and who may be in-house or outside counsel
to the Depositor, the applicable Master Servicer or the applicable Servicer
but which must be Independent outside counsel with respect to any such opinion
of counsel concerning the transfer of any Residual Certificate or concerning
certain matters with respect to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the taxation, or the federal income tax status,
of each REMIC. For purpose of Section 2.01(c)(i), the Opinion of Counsel
referred to therein may take the form of a memorandum of law or other
acceptable assurance.
Original Credit Support Percentage: With respect to each Class of
Subordinate Certificates, the Credit Support Percentage for such Class of
Certificates on the Closing Date.
Original Group Subordinate Amount: As to any Mortgage Pool, the Group
Subordinate Amount for such Mortgage Pool on the Closing Date.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Payoff: Any Mortgagor payment (exclusive of any prepayment penalty)
of principal on a Mortgage Loan equal to the entire outstanding Principal
Balance of such Mortgage Loan, if received in advance of the last scheduled
Due Date for such Mortgage Loan and accompanied by an amount of interest equal
to accrued unpaid interest on the Mortgage Loan to the date of such
payment-in-full.
Payoff Earnings: For any Distribution Date with respect to each
Mortgage Loan on which a Payoff was received by the Master Servicer during the
Payoff Period, the aggregate of the interest earned by the Master Servicer
from investment of each such Payoff from the date of receipt of such Payoff
until the Business Day immediately preceding the related Distribution Date
(net of investment losses).
Payoff Interest: For any Distribution Date with respect to a Mortgage
Loan for which a Payoff was received on or after the first calendar day of the
month of such Distribution Date and before the 15th calendar day of such
month, an amount of interest thereon at the applicable Pass-Through Rate from
the first day of the month of distribution through the day of receipt thereof;
to the extent (together with Payoff Earnings and the aggregate Master
Servicing Fee) not required to be distributed as Compensating Interest on such
Distribution Date, Payoff Interest shall be payable to the Master Servicer as
additional servicing compensation.
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: Any of Pool 1, Pool 2, Pool 3 or Pool 4.
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 in 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.
Prepaid Scheduled Payment: Any Scheduled Payment received prior to
its scheduled Due Date, which is intended to be applied to a Mortgage Loan on
its scheduled Due Date and held in the related Custodial Account until the
Remittance Date following its scheduled Due Date.
Prepayment Interest Shortfall: With respect to any Distribution Date
and any Principal Prepayment in part or in full, the difference between (i)
one full month's interest at the applicable Mortgage Rate (giving effect to
any applicable Relief Act Reduction), as reduced by the applicable Master
Servicing Fee Rate and the applicable Servicing Fee Rate on the outstanding
principal balance of such Mortgage Loan immediately prior to such prepayment
and (ii) the amount of interest actually received with respect to such
Mortgage Loan 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 Pool 1, Pool 2 and Pool 3 and any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs; with respect to Pool 4 and any Distribution
Date, the period from the 15th day of the month immediately preceding the
month in which such Distribution Date occurs to the 14th day of the month in
which such Distribution Date occurs (provided however that the first
Prepayment Period shall be the period from the Cut-off Date to June 14, 2001).
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-A2, Class 2-A4 or Class 3-A4
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 May 29, 2001, together
with the accompanying prospectus dated January 26, 2001, relating to each
Class of Certificates other than the Class 2-A2, Class 3-A2, Class B4-I, Class
B5-I , Class B6-I, B4-II, B5-II and B6-II 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 related Master Servicer or the applicable Servicer (or the
Securities Administrator, if applicable, as successor Master Servicer) 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 such 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 Securities Administrator may exercise all of the
rights under such contract or surety bond without the necessity of taking any
action by any other Person;
(c) provide that if at any time the then current credit standing of
the obligor under such guaranteed investment contract is such that continued
investment pursuant to such contract of funds would result in a downgrading of
any rating of the Certificates, the Securities Administrator 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 Securities Administrator;
(d) provide that the Securities Administrator's interest therein
shall be transferable to any successor securities administrator 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: With respect to Pool 1, Pool 2 and Pool 3, an
insurance company duly qualified as such under the laws of the states in which
the related Mortgaged Properties are located, duly authroized 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. With respect to Pool 4,
an insurance company duly qualified as such under the laws of the states in
which the related Mortgaged Properties are located, acceptable to ▇▇▇▇▇▇ ▇▇▇
and duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided.
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 applicable
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 Securities Administrator for deposit into the Certificate Account, and
shall be treated as a Principal Prepayment hereunder; (ii) has a Net Mortgage
Rate not lower than the Net Mortgage Rate of the related Deleted Mortgage Loan
and (in the case of Pool 1, Pool 2 and Pool 3) will be a Discount Mortgage
Loan if the Deleted Mortgage Loan was a Discount Mortgage Loan or a
Non-Discount Mortgage Loan if the Deleted Mortgage Loan was a Non-Discount
Mortgage Loan; (iii) has a remaining stated term to maturity not longer than,
and not more than one year shorter than, the remaining term to stated maturity
of the related Deleted Mortgage Loan; (iv) (A) has a Loan-to-Value Ratio as of
the date of such substitution of not greater than 80%, provided, however, that
if the related Deleted Mortgage Loan has a Loan-to-Value Ratio of greater than
80%, then the Loan-to-Value Ratio of such substitute Mortgage Loan may be
greater than 80% but shall not be greater than the Loan-to-Value Ratio of the
related Deleted Mortgage Loan and (B) the addition of such substitute Mortgage
Loan does not increase the weighted average Loan-to-Value Ratio of the related
Mortgage Pool by more than 5%; (v) will comply with all of the representations
and warranties relating to Mortgage Loans set forth herein, as of the date as
of which such substitution occurs; (vi) is not a Cooperative Loan unless the
related Deleted Mortgage Loan was a Cooperative Loan; (vii) if applicable, has
the same index as and a margin not less than that of the related Deleted
Mortgage Loan; (viii) has not been delinquent for a period of more than 30
days more than once in the twelve months immediately preceding such date of
substitution; (ix) is covered by a Primary Mortgage Insurance Policy if the
related Deleted Mortgage Loan is so covered, and the Loan-to-Value Ratio of
such Mortgage Loan is greater than 80%; and (x) has a Credit Score not greater
than 20 points lower than the Credit Score of the related Deleted Mortgage
Loan, provided, however, that if the Deleted Mortgage Loan does not have a
Credit Score, then such substitute Mortgage Loan shall have a Credit Score
equal to or greater than 700. In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one mortgage
loan is substituted for one or more Deleted Mortgage Loans, then (a) the
Scheduled Principal Balance referred to in clause (i) above shall be
determined such that the aggregate Scheduled Principal Balance of all such
substitute Mortgage Loans shall not exceed the aggregate Scheduled Principal
Balance of all Deleted Mortgage Loans and (b) each of (1) the rate referred to
in clause (ii) above, (2) the remaining term to stated maturity referred to in
clause (iii) above, (3) the Loan-to-Value Ratio referred to in clause (iv)
above and (4) the Credit Score referred to in clause (x) above shall be
determined on a weighted average basis, provided that the final scheduled
maturity date of any Qualifying Substitute Mortgage Loan shall not exceed the
Final Scheduled Distribution Date of any Class of Certificates. Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan
pursuant to this Agreement, the party effecting such substitution shall
certify such qualification in writing to the Trustee.
Rating Agency: With respect to the Senior Certificates relating to
Pool 1, Pool 2 and Pool 3, each of S&P and Fitch; with respect to the
Subordinate Certificates relating to Pool 1, Pool 2 and Pool 3, Fitch; and
with respect to the Certificates relating to Pool 4, S&P.
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 applicable Master Servicer or the
applicable Servicer with respect to such Mortgage Loan (other than Advances of
principal and interest) including expenses of liquidation, and (b) with
respect to each Mortgage Loan that has become the subject of a Deficient
Valuation, the difference between the unpaid principal balance of such
Mortgage Loan immediately prior to such Deficient Valuation and the unpaid
principal balance of such Mortgage Loan as reduced by the Deficient Valuation.
In determining whether a Realized Loss on a Liquidated Mortgage Loan is a
Realized Loss of interest or principal, Liquidation Proceeds shall be
allocated, first, to payment of expenses related to such Liquidated Mortgage
Loan, then to accrued unpaid interest and finally to reduce the principal
balance of the Mortgage Loan.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the related Cooperative Corporation and the originator of
such Mortgage Loan to establish the rights of such originator in the related
Cooperative Property.
Record Date: With respect to any Distribution Date and each Class of
Certificates other than any Class 2-A1, Class 2-A2, Class 2-A3, Class 3-A1,
Class 3-A2 and Class 3-A3 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 Class
2-A1, Class 2-A2, Class 2-A3, Class 3-A1, Class 3-A2 and Class 3-A3
Certificates, the Business Day immediately preceding the related Distribution
Date.
Reference Banks: As defined in Section 4.05.
Regulation S: Regulation S promulgated under the Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or
term contained in, Regulation S means such rule, section, subsection,
definition or term, as the case may be, or any successor thereto, in each case
as the same may be amended from time to time.
Regulation S Global Security: The meaning specified in Section
3.01(c).
Reimbursement Amount: Not applicable.
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 related Master
Servicer, as specified in the related Servicing Agreement, which is, in the
case of Pool 1, Pool 2 and Pool 3, the 18th day of each month (or if such 18th
day is not a Business Day, the next succeeding Business Day) and, in the case
of Pool 4, the last Business Day before the 21st day of each month.
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-I or Class R-II 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 R-I, Class R-II, Class B4-I, Class
B5-I, Class B6-I, Class B4-II, Class B5-II or Class B6-II Certificate.
Restricted Global Security: The meaning specified in Section 3.01(c).
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 the applicable Servicer or the Master Servicer, and
all amounts allocable to unscheduled principal payments (including Principal
Prepayments, Net Liquidation Proceeds, Insurance Proceeds and condemnation
proceeds, in each case to the extent identified and applied prior to or during
the applicable Prepayment Period) and (ii) any REO Property as of any
Distribution Date, the Scheduled Principal Balance of the related Mortgage
Loan on the Due Date immediately preceding the date of acquisition of such REO
Property by or on behalf of the Trustee (reduced by any amount applied as a
reduction of principal on the Mortgage Loan). With respect to any Mortgage
Loan as of the Cut-off Date, as specified in the Mortgage Loan Schedule.
Securities Administrator: The Chase Manhattan Bank, 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.
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
2-A1, Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 3-A1, Class 3-A2,
Class 3-A3, Class 3-A4, Class 3-A5, Class 4-A1, Class 4-A2, Class R-I or Class
R-II 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
and Class R-I Certificates, in the case of Pool 1, the Class 2-A1 and Class
2-A2 Certificates, in the case of Pool 2, the Class 3-A1 and Class 3-A2
Certificates, in the case of Pool 3, and the Class 4-A1 and Class R-II
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 (or in
the case of Pool 4, the aggregate Scheduled Principal Balance of the Mortgage
Loans in Pool 4) for the immediately preceding Distribution Date.
Senior Prepayment Percentage: With respect to each Mortgage Pool and
any Distribution Date occurring during the five years beginning on the first
Distribution Date, 100%. With respect to each Mortgage Pool and for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date, the related Senior Percentage plus the following percentage
of the related Subordinate Percentage for such Distribution Date: for any
Distribution Date in the first year thereafter, 70%; for any Distribution Date
in the second year thereafter, 60%; for any Distribution Date in the third
year thereafter, 40%; for any Distribution Date in the fourth year thereafter,
20%; and for any subsequent Distribution Date, 0%; provided, however, that if
on any of the foregoing Distribution Dates the Senior Percentage for any
Mortgage Pool exceeds the initial Senior Percentage for such Mortgage Pool,
the Senior Prepayment Percentage for any Mortgage Pool for such Distribution
Date shall once again equal 100% for such Distribution Date and, if that
Mortgage Pool is Pool 1, Pool 2 or Pool 3, the Senior Prepayment Percentage
for each of Pool 1, Pool 2 and Pool 3 will once again equal 100%.
Notwithstanding the foregoing, no decrease in the Senior Prepayment
Percentage for any Mortgage Pool below the level in effect for the most recent
prior period set forth in the paragraph above shall be effective on any
Distribution Date if, as of the first Distribution Date as to which any such
decrease applies, (i) the average outstanding principal balance on such
Distribution Date and for the preceding five Distribution Dates of all
Mortgage Loans in such Mortgage Pool that were delinquent 60 days or more
(including for this purpose any Mortgage Loans in foreclosure and the
Scheduled Payments that would have been due on Mortgage Loans with respect to
which the related Mortgaged Property has been acquired by the Trust Fund if
the related Mortgage Loan had remained in existence) is greater than or equal
to 50% of the applicable Group Subordinate Amount immediately prior to such
Distribution Date or (ii) cumulative Realized Losses with respect to the
Mortgage Loans in any Mortgage Pool exceed (a) with respect to the
Distribution Date on the fifth anniversary of the first Distribution Date, 30%
of the related Original Group Subordinate Amount, (b) with respect to the
Distribution Date on the sixth anniversary of the first Distribution Date, 35%
of the related Original Group Subordinate Amount, (c) with respect to the
Distribution Date on the seventh anniversary of the first Distribution Date,
40% of the related Original Group Subordinate Amount, (d) with respect to the
Distribution Date on the eighth anniversary of the first Distribution Date,
45% of the related Original Group Subordinate Amount, and (e) with respect to
the Distribution Date on the ninth anniversary of the first Distribution Date
or thereafter, 50% of the related Original Group Subordinate Amount. After the
Class Principal Amount of each Class of Senior Certificates in any Certificate
Group has been reduced to zero, the Senior Prepayment Percentage for the
related Mortgage Pool shall be 0%.
Senior Principal Distribution Amount: For each Certificate Group and
any Distribution Date, the sum of the following amounts:
(i) the product of (1) the related Senior Percentage for
such date and (2) the principal portion (multiplied, in the case of a
Mortgage Loan in Pool 1, Pool 2 or Pool 3, 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, in the case of a Mortgage Loan in Pool 1, Pool 2 or Pool
3, 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
deposited into the Certificate Account 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, in the case of a Mortgage Loan in Pool 1, Pool 2 or Pool
3, 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, in the case of a Mortgage Loan in Pool
1, Pool 2 or Pool 3, by the applicable Non-AP Percentage) of such
related Mortgage Loan at the time of liquidation; and
(iv) any amounts described in clauses (i) through (iii) for any
previous Distribution Date that remain unpaid.
If on any Distribution Date the Class Principal Amount of each Class of Senior
Certificates (other than any Class AP Certificates) in any Certificate Group
has been reduced to zero, the Senior Principal Distribution Amount for such
Certificate Group for such date (following such reduction) and each subsequent
Distribution Date shall be zero.
Servicer: Any Servicer that has entered into a Servicing Agreement.
Servicing Advances: Expenditures incurred by any Servicer in
connection with the liquidation or foreclosure of a Mortgage Loan which are
eligible for reimbursement under the applicable Servicing Agreement.
Servicing Agreement: Each Servicing Agreement pursuant to which a
Servicer has agreed to service the Mortgage Loans, and any other servicing
agreement entered into between a successor servicer and a Master Servicer, the
Seller or the Trustee pursuant to the terms hereof.
Servicing Fee: The Servicing Fee specified in the applicable
Servicing Agreement.
Servicing Fee Rate: With respect to any Servicer, as specified in the
applicable Servicing Agreement.
Servicing Officer: Any officer of a Master Servicer involved in or
responsible for the administration and servicing or master servicing of the
Mortgage Loans whose name appears on a list of servicing officers furnished by
the Master Servicer to the Trustee, as such list may from time to time be
amended.
Special Hazard Loss: With respect to the Mortgage Loans, (x) any
Realized Loss arising out of any direct physical loss or damage to a Mortgaged
Property which is caused by or results from any cause, exclusive of any loss
covered by a hazard policy or a flood insurance policy required to be
maintained in respect of such Mortgaged Property and any loss caused by or
resulting from (i) normal wear and tear, (ii) conversion or other dishonest
act on the part of the Trustee, the Master Servicer, any Servicer or any of
their agents or employees, or (iii) errors in design, faulty workmanship or
faulty materials, unless the collapse of the property or a part thereof
ensues, or (y) any Realized Loss arising from or related to the presence or
suspected presence of hazardous wastes, or hazardous substances on a Mortgaged
Property unless such loss is covered by a hazard policy or flood insurance
policy required to be maintained in respect of such Mortgaged Property, in any
case, as reported by any Servicer to the Master Servicer.
Special Hazard Loss Limit: As of the Cut-off Date, with respect to
Pool 1, Pool 2, Pool 3 and Pool 4 (in the aggregate), $10,302,057, which
amount shall be reduced from time to time to an amount equal on any
Distribution Date to the lesser of (a) the greatest of (i) 1% of the aggregate
of the Scheduled Principal Balances of the Mortgage Loans; (ii) twice the
Scheduled Principal Balance of the Mortgage Loan having the highest Scheduled
Principal Balance, and (iii) the aggregate Scheduled Principal Balances of the
Mortgage Loans secured by Mortgaged Properties located in the single
California postal zip code area having the highest aggregate Scheduled
Principal Balance of Mortgage Loans of any such postal zip code area and (b)
the Special Hazard Loss Limit as of the Closing Date less the amount, if any,
of Special Hazard Losses incurred since the Closing Date.
Specified Rating: Not applicable.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Subordinate Certificate: Any Class B Certificate.
Subordinate Certificate Writedown Amount: With respect to Pool 1,
Pool 2 and Pool 3, as to any Distribution Date, the amount by which (i) the
sum of the Class Principal Amounts of all the related Certificates (after
giving effect to the distribution of principal and the application of Realized
Losses in reduction of the Certificate Principal Amounts of such Certificates
on such Distribution Date) exceeds (ii) the aggregate Scheduled Principal
Balance of the related Mortgage Loans for such Distribution Date. With respect
to Pool 4, the amount by which (i) the sum of the Class Principal Amounts of
all the related Certificates (after giving effect to the distribution of
principal and the application of Realized Losses in reduction of the
Certificate Principal Amounts of such Certificates on such Distribution Date)
exceeds (ii) the aggregate Scheduled Principal Balance of the related Mortgage
Loans for such Distribution Date.
Subordinate Class Percentage: With respect to any Distribution Date
and any Class of Subordinate Certificates relating to Pool 1, Pool 2 and Pool
3 or Pool 4, 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 relating to Pool
1, Pool 2 and Pool 3 or Pool 4, as applicable, immediately prior to such
Distribution Date.
Subordinate Component Percentage: Not applicable.
Subordinate Percentage: With respect to each Mortgage Pool and any
Distribution Date, the difference between 100% and the related Senior
Percentage for such Distribution Date.
Subordinate Prepayment Percentage: With respect to each Mortgage Pool
and any Distribution Date, the difference between 100% and the related Senior
Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: For each Certificate Group
and any Distribution Date, the sum of the following:
(i) the product of (1) the related Subordinate Percentage for
such date and (2) the principal portion (multiplied, in the case of
Pool 1, Pool 2 or Pool 3, by the applicable Non-AP Percentage) of
each Scheduled Payment (without giving effect to any Debt Service
Reduction occurring prior to the applicable Bankruptcy Coverage
Termination Date) on each Mortgage Loan in the related Mortgage Pool
due during the related Due Period;
(ii) the product of (a) the related Subordinate Prepayment
Percentage for such date and (b) each of the following amounts
(multiplied, in the case of Pool 1, Pool 2 or Pool 3, 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 deposited into the
Certificate Account 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, in the
case of Pool 1, Pool 2 or Pool 3, 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.
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc. or any successor in
interest.
▇▇▇▇▇▇▇▇▇ Purchase Agreement: The agreement, dated as of May 1, 2001,
for the sale of the Mortgage Loans in Pool 4 by ▇▇▇▇▇▇▇▇▇ to the Depositor.
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, 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 Insurance Policies, any REO Property and the other items referred
to in, and conveyed to the Trustee under, Section 2.01(a).
Trust Rate: With respect to each Mortgage Loan, the sum of (i) the
related Designated Rate, (ii) the applicable Servicing Fee Rate, and (iii) the
premium rate on any lender-provided mortgage insurance.
Trustee: 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.
Trustee Fee: As to each Mortgage Pool and any Distribution Date, an
amount equal to the product of the Trustee Fee Rate and the Pool Balance for
such Mortgage Pool as of the first day of the related Due Period.
Trustee Fee Rate: 0.0035% per annum.
UCC: The Uniform Commercial Code as adopted in the State of New York.
Uncollected Interest: With respect to any Distribution Date for any
Mortgage Loan on which a Payoff was made by a Mortgagor during the related
Prepayment Period, except for Payoffs received during the period from the
first through the 14th day of the month of such Distribution Date, an amount
equal to one month's interest at the applicable Interest Rate on such Mortgage
Loan less the amount of interest actually paid by the Mortgagor with respect
to such Payoff.
Uncompensated Interest Shortfall: For any Distribution Date, the sum
of (i) aggregate Curtailment Shortfall with respect to the Mortgage Loans and
(ii) the excess, if any, of (a) aggregate Uncollected Interest with respect to
the Mortgage Loans over (b) Compensating Interest with respect to the Mortgage
Loans.
Undercollateralization Distribution: As defined in Section
5.02(f)(ii).
Undercollateralized Group: With respect to Pool 1, Pool 2 or Pool 3
and any Distribution Date, the Non-AP Senior Certificates of any related
Certificate Group as to which the aggregate Certificate Principal Amount
thereof, after giving effect to distributions pursuant to Sections 5.02(a) and
(b) on such date is greater than the Non-AP Pool Balance of the related
Mortgage Pool for such Distribution Date.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58, 65
Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Upper Tier REMIC: One of the two separate REMICs as described in the
Preliminary Statement hereto.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement
until the Class Notional Amount of each Class of Notional Certificates has
been reduced to zero, 95% of all Voting Interests shall be allocated to the
Certificates other than the Notional Certificates and 5% of all Voting
Interests shall be allocated to the Notional Certificates. After the Class
Notional Amount of each Class of Notional Certificates has been reduced to
zero, 100% of all Voting Interests shall be allocated to the remaining Classes
of Certificates. Voting Interests allocated to the Notional Certificates shall
be allocated among the Classes of such Certificates (and among the
Certificates of each such Class) in proportion to their Class Notional Amounts
(or Notional Amounts). Voting Interests shall be allocated among the other
Classes of Certificates (and among the Certificates of each such Class) in
proportion to their Class Principal Amounts (or Certificate Principal
Amounts).
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
Servicers. The Securities Administrator shall not be required to recompute,
verify or recalculate the information supplied to it by either Master
Servicer.
ARTICLE II.
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans. (a) Concurrently with the execution and delivery of this
Agreement, the Depositor does hereby transfer, assign, set over, deposit with
and otherwise convey to the Trustee, without recourse, subject to Sections
2.02, 2.04, 2.05 and 2.06, in trust, all the right, title and interest of the
Depositor in and to the Mortgage Loans. Such conveyance includes, without
limitation, the right to all distributions of principal and interest received
on or with respect to the Mortgage Loans on and after the Cut-off Date (other
than payments of principal and interest due on or before such date) and all
such payments due after such date but received prior to such date and intended
by the related Mortgagors to be applied after such date, together with all of
the Depositor's right, title and interest in and to the Collection Account and
all amounts from time to time credited to and the proceeds of the Collection
Account, the Certificate Account and all amounts from time to time credited to
and the proceeds of the Certificate Account, any Escrow Account established
pursuant to Section 9.06 hereof and all amounts from time to time credited to
and the proceeds of any such Escrow Account, any REO Property and the proceeds
thereof, the Depositor's rights under any Insurance Policies related to the
Mortgage Loans, and the Depositor's security interest in any collateral
pledged to secure the Mortgage Loans, including the Mortgaged Properties and
any Additional Collateral, and any proceeds of the foregoing, to have and to
hold, in trust; and the Trustee declares that, subject to the review provided
for in Section 2.02, it has received and shall hold the Trust Fund, as
trustee, in trust, for the benefit and use of the Holders of the Certificates
and for the purposes and subject to the terms and conditions set forth in this
Agreement, and, concurrently with such receipt, has caused to be executed,
authenticated and delivered to or upon the order of the Depositor, in exchange
for the Trust Fund, Certificates in the authorized denominations evidencing
the entire ownership of the Trust Fund.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under (i) the Mortgage Loan Sale Agreement, including all rights of the Seller
under the Servicing Agreements to the extent assigned under the Mortgage Loan
Sale Agreement, and (ii) the ▇▇▇▇▇▇▇▇▇ Purchase Agreement. The Trustee hereby
accepts such assignment, and shall be entitled to exercise all rights of the
Depositor under the Mortgage Loan Sale Agreement and the ▇▇▇▇▇▇▇▇▇ Purchase
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 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 (or certified copy) Primary Mortgage
Insurance Policy or certificate, if private mortgage guaranty
insurance is required;
(viii) with respect to each Mortgage Loan other than a
Cooperative Loan, the original mortgagee title insurance policy or
attorney's opinion of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage
or equivalent executed in connection with the Mortgage or as to any
security agreement, chattel mortgage or their equivalent that cannot
be delivered on or prior to the Closing Date because of a delay
caused by the public recording office where such document has been
delivered for recordation, a photocopy of such document, pending
delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such
security agreement, chattel mortgage or their equivalent delivered
to the Trustee (or its custodian) is a true copy and that the
original of such document has been forwarded to the public recording
office;
(x) with respect to any Cooperative Loan, the Cooperative Loan
Documents;
(xi) in connection with any pledge of Additional Collateral,
the original additional collateral pledge and security agreement
executed in connection therewith, assigned to the Trustee; and
(xii) with respect to any manufactured housing contract, any
related manufactured housing sales contract, installment loan
agreement or participation interest.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
(c) (i) Assignments of Mortgage with respect to each Non-MERS
Mortgage Loan other than a Cooperative Loan shall be recorded; provided,
however, that such Assignments need not be recorded if, in the Opinion of
Counsel (which must be from Independent counsel) 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 Securities Administrator on behalf of
the Trustee, at the expense of the Depositor and with the cooperation of the
applicable Master Servicer or Custodian, shall cause to be properly recorded
by such Master 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 and manufactured housing contract, the Securities
Administrator on behalf of the Trustee at the expense of the Depositor and
with the cooperation of the applicable Master Servicer, shall cause such
Master Servicer to take such actions as are necessary under applicable law
(including but not limited to the Relevant UCC) in order to perfect the
interest of the Trustee in the related Mortgaged Property.
(ii) With respect to each MERS Mortgage Loan, the Securities
Administrator on behalf of the Trustee, at the expense of the
Depositor and at the direction and with the cooperation of the
applicable Master 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, except to the extent delays are caused by the applicable
recording office.
(e) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
applicable Custodian on behalf of the Trustee, an Officer's Certificate which
shall include a statement to the effect that all amounts received in
connection with such prepayment that are required to be deposited in the
applicable Collection Account pursuant to Section 4.01 have been so deposited.
All original documents that are not delivered to the Trustee or the applicable
Custodian on behalf of the Trustee shall be held by the Master Servicer or the
applicable Servicer in trust for the benefit of the Trustee and the
Certificateholders.
Section 2.02 Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund. (a) The Trustee, by execution and delivery
hereof, acknowledges receipt by the applicable Custodian on its behalf of the
Mortgage Files pertaining to the Mortgage Loans listed on the Mortgage Loan
Schedule, subject to review thereof by the Trustee, or by the applicable
Custodian on behalf of the Trustee, under this Section 2.02. The Trustee, or
the applicable Custodian on behalf of the Trustee, will execute and deliver to
the Trustee, the Depositor, ▇▇▇▇▇▇▇▇▇ and the applicable Master Servicer on
the Closing Date an Initial Certification in the form annexed hereto as
Exhibit B-1 (or in the form annexed to the applicable Custodial Agreement as
Exhibit B-1, as applicable).
(b) Within 45 days after the Closing Date, the applicable Custodian
will, on behalf of the Trustee and for the benefit of Holders of the
Certificates, review each Mortgage File to ascertain that all required
documents set forth in Section 2.01 have been received and appear on their
face to contain the requisite signatures by or on behalf of the respective
parties thereto, and shall deliver to the Trustee, the Securities
Administrator, the Depositor, ▇▇▇▇▇▇▇▇▇ (in the case of Pool 4) and the
applicable Master Servicer an Interim Certification in the form annexed hereto
as Exhibit B-2 (or in the form annexed to the applicable Custodial Agreement
as Exhibit B-2, as applicable) to the effect that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan prepaid in
full or any Mortgage Loan specifically identified in such certification as not
covered by such certification), (i) all of the applicable documents specified
in Section 2.01(b) are in its possession and (ii) such documents have been
reviewed by it and appear to relate to such Mortgage Loan. The Securities
Administrator, 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. None of the Trustee, the Securities
Administrator 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 Securities Administrator, 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 Securities Administrator on behalf of the
Trustee, or the applicable Custodian on behalf of the Trustee, shall promptly
identify such Material Defect and the Mortgage Loan to which such Material
Defect relates in the Interim Certificate delivered to the Depositor,
▇▇▇▇▇▇▇▇▇ (in the case of Pool 4) and the applicable Master Servicer (and to
the Trustee and the Securities Administrator). 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 and the
Securities Administrator with an Officer's Certificate confirming that such
cure has been effected). If the Depositor does not so cure such Material
Defect, it shall, if a loss has been incurred with respect to such Mortgage
Loan that would, if such Mortgage Loan were not purchased from the Trust Fund,
constitute a Realized Loss, and such loss is attributable to the failure of
the Depositor to cure such Material Defect, repurchase the related Mortgage
Loan from the Trust Fund at the Purchase Price. A loss shall be deemed to be
attributable to the failure of the Depositor to cure a Material Defect if, as
determined by the Depositor, upon mutual agreement with the applicable Master
Servicer 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 Securities
Administrator on behalf of the Trustee, or the applicable Custodian, shall
deliver to the Trustee, the Depositor, the Securities Administrator, ▇▇▇▇▇▇▇▇▇
(in the case of Pool 4) and the applicable Master Servicer a Final
Certification substantially in the form annexed hereto as Exhibit B-3 (or in
the form annexed to the applicable Custodial Agreement as Exhibit B-3, as
applicable) evidencing the completeness of the Mortgage Files in its
possession or control, with any exceptions noted thereto.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee or the Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and deliver the respective
certifications thereof as provided in this Section 2.02.
Section 2.03 Representations and Warranties of the Depositor. (a) The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, to the Securities Administrator and to each 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 Servicers,
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 ▇▇▇▇▇▇ 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, (iii) of ▇▇▇▇▇▇▇▇▇ set forth in the
▇▇▇▇▇▇▇▇▇ Purchase Agreement and assigned to the Trustee by the Depositor
hereunder, and (iv) 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, a Master Servicer or the Trustee
of a breach of any of such representations and warranties that adversely and
materially affects the value of the related Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties.
Within 90 days of such notice of a breach of any representation or warranty
given to the Trustee by the Depositor, any Transferor, ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇
Capital and assigned to the Trustee, the Depositor, such Transferor, ▇▇▇▇▇▇▇▇▇
or ▇▇▇▇▇▇ Capital, as applicable, shall either (a) cure such breach in all
material respects, (b) repurchase such Mortgage Loan or any property acquired
in respect thereof from the Trustee at the Purchase Price or (c) within the
two year period following the Closing Date, substitute a Qualifying Substitute
Mortgage Loan for the affected Mortgage Loan. In the event of discovery of a
breach of any representation and warranty of any Transferor assigned to the
Trustee, the Trustee shall enforce its rights under the applicable Transfer
Agreement and the Mortgage Loan Sale Agreement for the benefit of
Certificateholders. As provided in the Mortgage Loan Sale Agreement, if any
Transferor substitutes for a Mortgage Loan for which there is a breach of any
representations and warranties in the related Transfer Agreement which
adversely and materially affects the value of such Mortgage Loan and such
substitute mortgage loan is not a Qualifying Substitute Mortgage Loan, under
the terms of the Mortgage Loan Sale Agreement, ▇▇▇▇▇▇ Capital will, in
exchange for such Substitute Mortgage Loan, (i) provide the applicable
Purchase Price for the affected Mortgage Loan or (ii) within two years of the
Closing Date, substitute such affected Mortgage Loan with a Qualifying
Substitute Mortgage Loan.
Section 2.05 Repurchase, Purchase or Substitution of Mortgage Loans.
(a) With respect to any Mortgage Loan purchased by the Group 4 Master Servicer
pursuant to this Agreement or repurchased by the Depositor pursuant to this
Agreement, by ▇▇▇▇▇▇ Capital pursuant to the Mortgage Loan Sale Agreement, by
▇▇▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇▇▇▇ Purchase 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. Each of the Seller and ▇▇▇▇▇▇▇▇▇
indemnifies and holds the Trust Fund, the Trustee, the Securities
Administrator, the Depositor and each Certificateholder harmless against any
and all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgements, and any other costs, fees and expenses
that the Trust Fund, the Trustee, the Securities Administrator, the Depositor
and any Certificateholder may sustain in connection with any actions of the
Seller or ▇▇▇▇▇▇▇▇▇, as applicable, relating to a repurchase of a Mortgage
Loan other than in compliance with the terms of this Section 2.05, the
Mortgage Loan Sale and Assignment Agreement and the ▇▇▇▇▇▇▇▇▇ Purchase
Agreement, to the extent that any such action causes (i) any federal or state
tax to be imposed on the Trust Fund, including without limitation, any federal
tax imposed on "prohibited transactions" under Section 860F(a)(l) of the Code
or on "contributions after the startup date" under Section 860G(d)(l) of the
Code, or (ii) the REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
applicable Transferor or ▇▇▇▇▇▇ Capital, as applicable, must deliver to the
Trustee (or its custodian) the Mortgage File for the Qualifying Substitute
Mortgage Loan containing the documents set forth in Section 2.01(b) along with
a written certification certifying as to the delivery of such Mortgage File
and containing the granting language set forth in Section 2.01(a); and (ii)
the Depositor will be deemed to have made, with respect to such Qualified
Substitute Mortgage Loan, each of the representations and warranties made by
it with respect to the related Deleted Mortgage Loan. As soon as practicable
after the delivery of any Qualifying Substitute Mortgage Loan hereunder, the
Securities Administrator on behalf of the Trustee, at the expense of the
Depositor and at the direction and with the cooperation of the applicable
Master Servicer, shall (i) with respect to a Qualifying Substitute Mortgage
Loan that is a Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be
recorded by such Servicer if required pursuant to Section 2.01(c)(i), or (ii)
with respect to a Qualifying Substitute Mortgage Loan that is a MERS Mortgage
Loan, cause to be taken such actions as are necessary to cause the Trustee to
be clearly identified as the owner of each such Mortgage Loan on the records
of MERS if required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding any other provision of this Agreement, the right
to substitute Mortgage Loans pursuant to this Article II shall be subject to
the additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee has
received an Opinion of Counsel (at the expense of the party seeking to make
the substitution) that, under current law, such substitution will not (A)
affect adversely the status of any REMIC established hereunder as a REMIC, or
of the related "regular interests" as "regular interests" in any such REMIC,
or (B) cause any such REMIC to engage in a "prohibited transaction" or
prohibited contribution pursuant to the REMIC Provisions.
Section 2.06 Grant Clause. It is intended that the conveyance of the
Depositor's right, title and interest in and to property constituting the
Trust Fund pursuant to this Agreement shall constitute, and shall be construed
as, a sale of such property and not a grant of a security interest to secure a
loan. However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) the Depositor hereby
grants to the Trustee for the benefit of the Holders of the Certificates a
first priority security interest in all of the Depositor's right, title and
interest in, to and under, whether now owned or hereafter acquired, the Trust
Fund and all proceeds of any and all property constituting the Trust Fund to
secure payment of the Certificates; and (3) this Agreement shall constitute a
security agreement under applicable law. If such conveyance is deemed to be in
respect of a loan and the Trust created by this Agreement terminates prior to
the satisfaction of the claims of any Person holding any Certificate, the
security interest created hereby shall continue in full force and effect and
the Trustee shall be deemed to be the collateral agent for the benefit of such
Person, and all proceeds shall be distributed as herein provided.
The Depositor shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans and
the other property described above, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. The
Depositor will, at its own expense, make all initial filings on or about the
Closing Date and shall forward a copy of such filing or filings to the
Trustee. Without limiting the generality of the foregoing, the Depositor shall
prepare and forward for filing, or shall cause to be forwarded for filing, at
the expense of the Depositor, all filings necessary to maintain the
effectiveness of any original filings necessary under the relevant UCC to
perfect the Trustee's security interest in or lien on the Mortgage Loans,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of the Seller, the
Depositor or the Trustee, (2) any change of location of the place of business
or the chief executive office of the Seller or the Depositor, (3) any transfer
of any interest of the Seller or the Depositor in any Mortgage Loan or (4) any
change under the relevant UCC or other applicable laws.
ARTICLE III.
THE CERTIFICATES
Section 3.01 The Certificates. (a) The Certificates shall be issuable
in registered form only and shall be securities governed by Article 8 of the
New York Uniform Commercial Code. The Book-Entry Certificates will be
evidenced by one or more certificates, beneficial ownership of which will be
held in the dollar denominations in Certificate Principal Amount or Notional
Principal Amount, as applicable, or in the Percentage Interests, specified
herein. Each Class of Book-Entry Certificates shall be issued in the minimum
denominations in Certificate Principal Amount (or Notional Amount) or
Percentage Interest specified in the Preliminary Statement hereto and in
integral multiples of $1 or 5% (in the case of Certificates issued in
Percentage Interests) in excess thereof. Each Class of Non-Book Entry
Certificates other than the Residual Certificate shall be issued in
definitive, fully registered form in the minimum denominations in Certificate
Principal Amount (or Notional Amount) specified in the Preliminary Statement
hereto and in integral multiples of $1 in excess thereof. The Residual
Certificate shall be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100% of
the Percentage Interest of such Class. The Certificates may be issued in the
form of typewritten certificates. One Certificate of each Class of
Certificates other than any Class of Residual Certificates may be issued in
any denomination in excess of the minimum denomination.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee or the
Authenticating Agent 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 Securities Administrator 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"). 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 applicable 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. The Securities Administrator as Certificate Registrar shall be
subject to the same standards of care, limitations on liability and rights to
indemnity as the Trustee, and the provisions of Article VI shall apply to the
Certificate Registrar to the same extent as they apply to the Trustee. Any
Certificate Registrar appointed in accordance with this Section 3.02 may at
any time resign by giving at least 30 days' advance written notice of
resignation to the Depositor, such resignation to become effective upon
appointment of a successor Certificate Registrar.
Section 3.03 Transfer and Exchange of Certificates. (a) A Certificate
(other than Book-Entry Certificates which shall be subject to Section 3.09
hereof) may be transferred by the Holder thereof only upon presentation and
surrender of such Certificate at the office of the Certificate Registrar duly
endorsed or accompanied by an assignment duly executed by such Holder or his
duly authorized attorney in such form as shall be satisfactory to the
Certificate Registrar. Upon the transfer of any Certificate in accordance with
the preceding sentence, the Trustee shall execute, and the Trustee or any
Authenticating Agent shall authenticate and deliver to the transferee, one or
more new Certificates of the same Class and evidencing, in the aggregate, the
same aggregate Certificate Principal Amount as the Certificate being
transferred. No service charge shall be made to a Certificateholder for any
registration of transfer of Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any registration of transfer of
Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate or a Regulation S
Global Security, whether upon original issuance or subsequent transfer, each
Holder of such a Certificate acknowledges the restrictions on the transfer of
such Certificate set forth thereon and agrees that it will transfer such a
Certificate only as provided herein. In addition, each Holder of a Regulation
S Global Security shall be deemed to have represented and warranted to the
Trustee, the Certificate Registrar and any of their respective successors
that: (i) such Person is not a U.S. person within the meaning of Regulation S
and was, at the time the buy order was originated, outside the United States
and (ii) such Person understands that such Certificates have not been
registered under the Securities Act of 1933, as amended (the "Act"), and that
(x) until the expiration of the 40-day distribution compliance period (within
the meaning of Regulation S), no offer, sale, pledge or other transfer of such
Certificates or any interest therein shall be made in the United States or to
or for the account or benefit of a U.S. person (each as defined in Regulation
S), (y) if in the future it decides to offer, resell, pledge or otherwise
transfer such Certificates, such Certificates may be offered, resold, pledged
or otherwise transferred only (A) to a person which the seller reasonably
believes is a "qualified institutional buyer" (a "QIB") as defined in Rule
144A under the Act, that is purchasing such Certificates for its own account
or for the account of a qualified institutional buyer to which notice is given
that the transfer is being made in reliance on Rule 144A or (B) in an offshore
transaction (as defined in Regulation S) in compliance with the provisions of
Regulation S, in each case in compliance with the requirements of this
Agreement; and it will notify such transferee of the transfer restrictions
specified in this Section.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of
a Restricted Certificate if the requested transfer is (x) to the
Depositor or the Placement Agent, an affiliate (as defined in Rule
405 under the Act) of the Depositor or the Placement Agent or (y)
being made to a QIB by a transferor that has provided the Trustee
with a certificate in the form of Exhibit F hereto; and
(ii) The Certificate Registrar shall register the transfer
of a Restricted Certificate if the requested transfer is being made
to an "accredited investor" under Rule 501(a)(1), (2), (3) or (7)
under the Act by a transferor who furnishes to the Trustee a letter
of the transferee substantially in the form of Exhibit G hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Certificate
Registrar has received (A) a certificate substantially in the form of Exhibit
H (or Exhibit D-1 in the case of a Residual Certificate) hereto from such
transferee or (B) an Opinion of Counsel satisfactory to the Trustee and the
Depositor to the effect that the purchase and holding of such a Certificate
will not constitute or result in the assets of the Trust Fund being deemed to
be "plan assets" subject to the prohibited transactions provisions of ERISA or
Section 4975 of the Code and will not subject the Trustee, the Securities
Administrator, the Certificate Registrar or the Depositor to any obligation in
addition to those undertaken in the Agreement; provided, however, that the
Certificate Registrar 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 Certificate Registrar has rendered an opinion to the effect that the
purchase and holding of an ERISA-Restricted Certificate by a Plan or a Person
that is purchasing or holding such a Certificate with the assets of a Plan
will not constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code. Each Transferee of an ERISA-Restricted Certificate
that is a Book-Entry Certificate shall be deemed to have made the
representations set forth in Exhibit H. The preparation and delivery of the
certificate and opinions referred to above shall not be an expense of the
Trust Fund, the Trustee, the Securities Administrator, the Certificate
Registrar or the Depositor. Notwithstanding the foregoing, no opinion or
certificate shall be required for the initial issuance of the ERISA-Restricted
Certificates. None of the Securities Administrator, the Certificate Registrar
or the Trustee shall have any obligations to monitor transfers of Book-Entry
Certificates that are ERISA-Restricted Certificates and shall have no
liability for transfers of such Certificates in violation of the transfer
restrictions.
(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 Certificate Registrar and the
Securities Administrator 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 Certificate Registrar an affidavit in substantially the form
attached hereto as Exhibit D-1 representing and warranting, among other
things, that such transferee is neither a Disqualified Organization, an agent
or nominee acting on behalf of a Disqualified Organization, nor a
Non-permitted Foreign Holder (any such transferee, a "Permitted Transferee")
and the proposed transferor shall deliver to the Certificate Registrar an
affidavit in substantially the form attached hereto as Exhibit D-2. In
addition, the Certificate Registrar 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 Certificate Registrar 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 Certificate Registrar 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 Certificate Registrar 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 Securities Administrator
on behalf of 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 Securities Administrator on behalf of 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 Certificate Registrar 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. None of the
Trustee, the Certificate Registrar or the Securities Administrator shall be
under any liability to any Person for any registration of transfer of a
Residual Certificate that is in fact not permitted by this Section 3.03(f),
for making any payment due on such Certificate to the registered Holder
thereof or for taking any other action with respect to such Holder under the
provisions of this Agreement so long as the transfer was registered upon
receipt of the affidavit described in the preceding paragraph of this Section
3.03(f).
(g) Each Holder of a Residual Certificate, by such Holder's
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this section.
(h) Notwithstanding any provision to the contrary herein, so long as
a Global Security representing either of the Class B4, Class B5 or Class B6
Certificates remains outstanding and is held by or on behalf of DTC, transfers
of a Global Security representing any such Certificates, in whole or in part,
shall only be made in accordance with Section 3.01 and this Section 3.03(h).
(A) Subject to clauses (B) and (C) of this Section
3.03(h), transfers of a Global Security representing either of
the Class B4, Class B5 or Class B6 Certificates shall be
limited to transfers of such Global Security, in whole or in
part, to nominees of DTC or to a successor of DTC or such
successor's nominee.
(B) Restricted Global Security to Regulation S Global
Security. If a holder of a beneficial interest in a Restricted
Global Security deposited with or on behalf of DTC wishes at
any time to exchange its interest in such Restricted Global
Security for an interest in a Regulation S Global Security, or
to transfer its interest in such Restricted Global Security to
a Person who wishes to take delivery thereof in the form of an
interest in a Regulation S Global Security, such holder,
provided such holder is not a U.S. person, may, subject to the
rules and procedures of DTC, exchange or cause the exchange of
such interest for an equivalent beneficial interest in the
Regulation S Global Security. Upon receipt by the Securities
Administrator, as Certificate Registrar, of (I) instructions
from DTC directing the Securities Administrator, as Certificate
Registrar, to be credited a beneficial interest in a Regulation
S Global Security in an amount equal to the beneficial interest
in such Restricted Global Security to be exchanged but not less
than the minimum denomination applicable to such holder's
Certificates held through a Regulation S Global Security, (II)
a written order given in accordance with DTC's procedures
containing information regarding the participant account of DTC
and, in the case of a transfer pursuant to and in accordance
with Regulation S, the Euroclear or Clearstream account to be
credited with such increase and (III) a certificate in the form
of Exhibit N-1 hereto given by the holder of such beneficial
interest stating that the exchange or transfer of such interest
has been made in compliance with the transfer restrictions
applicable to the Global Securities, including that the holder
is not a U.S. person, and pursuant to and in accordance with
Regulation S, the Securities Administrator, as Certificate
Registrar, shall reduce the principal amount of the Restricted
Global Security and increase the principal amount of the
Regulation S Global Security by the aggregate principal amount
of the beneficial interest in the Restricted Global Security to
be exchanged, and shall instruct Euroclear or Clearstream, as
applicable, concurrently with such reduction, to credit or
cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Regulation S
Global Security equal to the reduction in the principal amount
of the Restricted Global Security.
(C) Regulation S Global Security to Restricted Global
Security. If a holder of a beneficial interest in a Regulation
S Global Security deposited with or on behalf of DTC wishes at
any time to transfer its interest in such Regulation S Global
Security to a Person who wishes to take delivery thereof in the
form of an interest in a Restricted Global Security, such
holder may, subject to the rules and procedures DTC, exchange
or cause the exchange of such interest for an equivalent
beneficial interest in a Restricted Global Security. Upon
receipt by the Securities Administrator, as Certificate
Registrar, of (I) instructions from DTC directing the
Securities Administrator, as Certificate Registrar, to cause to
be credited a beneficial interest in a Restricted Global
Security in an amount equal to the beneficial interest in such
Regulation S Global Security to be exchanged but not less than
the minimum denomination applicable to such holder's
Certificates held through a Restricted Global Security, to be
exchanged, such instructions to contain information regarding
the participant account with DTC to be credited with such
increase, and (II) a certificate in the form of Exhibit N-2
hereto given by the holder of such beneficial interest and
stating, among other things, that the Person transferring such
interest in such Regulation S Global Security reasonably
believes that the Person acquiring such interest in a
Restricted Global Security is a QIB, is obtaining such
beneficial interest in a transaction meeting the requirements
of Rule 144A and in accordance with any applicable securities
laws of any State of the United States or any other
jurisdiction, then the Securities Administrator, as Certificate
Registrar, will reduce the principal amount of the Regulation S
Global Security and increase the principal amount of the
Restricted Global Security by the aggregate principal amount of
the beneficial interest in the Regulation S Global Security to
be transferred and the Securities Administrator, as Certificate
Registrar, shall instruct DTC, concurrently with such
reduction, to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest
in the Restricted Global Security equal to the reduction in the
principal amount of the Regulation S Global Security.
(D) Other Exchanges. In the event that a Global Security
is exchanged for Certificates in definitive registered form
without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in
accordance with such procedures as are substantially consistent
with the provisions above (including certification requirements
intended to insure that such transfers comply with Rule 144A,
comply with Rule 501(a)(1), (2), (3) or (7) or are to non-U.S.
persons in compliance with Regulation S under the Act, as the
case may be), and as may be from time to time adopted by the
Securities Administrator.
(E) Restrictions on U.S. Transfers. Transfers of interests
in the Regulation S Global Security to U.S. persons (as defined
in Regulation S) shall be limited to transfers made pursuant to
the provisions of Section 3.03(h)(C).
Section 3.04 Cancellation of Certificates. Any Certificate
surrendered for registration of transfer or exchange shall be cancelled and
retained in accordance with normal retention policies with respect to
cancelled certificates maintained by the Certificate Registrar.
Section 3.05 Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Certificate Registrar or any
Authenticating Agent or (ii) the Certificate Registrar or any Authenticating
Agent receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate, and there is delivered to the Certificate Registrar 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 Certificate
Registrar, the Trustee, 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 Certificate Registrar, 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 Certificate
Registrar, 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 Servicers, the Trustee, the Certificate Registrar, the Securities
Administrator 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
the Depositor, the Master Servicers, the Securities Administrator, the
Trustee, the Certificate Registrar or any agent of any of them shall not 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 the Trustee or the Authenticating Agent 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 Certificate Registrar without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Trustee shall execute and the Trustee or the
Authenticating Agent shall 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 or the Securities Administrator) for
the purpose of making distributions to Certificateholders hereunder. The
Securities Administrator is hereby appointed Paying Agent, which appointment
it accepts. The Trustee shall cause each Paying Agent (other than the
Securities Administrator) 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, if
any, 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 or the Securities
Administrator, 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
Servicers, 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.
None of the Transferor, the Trustee or the Certificate Registrar 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 and the Certificate
Registrar shall recognize the holders of the Definitive Certificates as
Certificateholders hereunder.
ARTICLE IV.
ADMINISTRATION OF THE TRUST FUND
Section 4.01 Collection Accounts. (a) (i) On the Closing Date, the
Group 1-3 Master Servicer shall open and shall thereafter maintain a
segregated account held in trust (the "Aurora Collection Account"), entitled
"Aurora Loan Services Inc., as Master Servicer, in trust for the benefit of
the Holders of Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2001-8A, Group 1, Group 2 and Group 3." The Aurora
Collection Account shall relate solely to the Group 1, Group 2 and Group 3
Certificates issued by the Trust Fund hereunder, and funds in such Collection
Account shall not be commingled with any other monies.
(ii) On the Closing Date, the Group 4 Master Servicer shall
open and shall thereafter maintain a segregated account held in
trust (the "WMMSC Collection Account"), entitled "Washington Mutual
Mortgage Securities Corp., as Master Servicer, in trust for the
benefit of the Holders of Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2001-8A, Group 4." The
WMMSC Collection Account shall relate solely to the Group 4
Certificates issued by the Trust Fund hereunder, and funds in such
Collection Account shall not be commingled with any other monies.
(b) Each Collection Account shall be an Eligible Account. If an
existing Collection Account ceases to be an Eligible Account, the applicable
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) Each Master Servicer shall give to the Trustee and the Securities
Administrator prior written notice of the name and address of the depository
institution at which the applicable Collection Account is maintained and the
account number of such Collection Account. On each Master Servicer Remittance
Date, the entire amount on deposit in each Collection Account (subject to
permitted withdrawals set forth in Section 4.02), excluding such amounts not
included in the Available Distribution Amount for such Distribution Date
pursuant to clauses (a) through (g) of paragraph (i) of the definition
thereof, shall be remitted to the Securities Administrator for deposit into
the Certificate Account by wire transfer in immediately available funds. Each
Master Servicer, at its option, may choose to make daily remittances from the
applicable Collection Account to the Securities Administrator for deposit into
the Certificate Account.
(d) Each Master Servicer shall deposit or cause to be deposited into
the applicable Collection Account, no later than the Business Day following
the Closing Date, any amounts representing Scheduled Payments on the related
Mortgage Loans due after the Cut-off Date and received by such Master Servicer
on or before the Closing Date. Thereafter, each Master Servicer shall deposit
or cause to be deposited in the applicable 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 related 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 and payments due
to any increase in the amount of interest to be paid on certain
Mortgage Loans based on the loss of the benefits of an
employee/director interest rate reduction agreement), net of the
applicable Servicing Fee and Master Servicing Fee with respect to
each such Mortgage Loan, but only to the extent of the amount
permitted to be withdrawn or withheld from the Collection Account in
accordance with Sections 5.04 and 9.21;
(iii) any unscheduled payment or other recovery with respect to
a Mortgage Loan not otherwise specified in this paragraph (d),
including all Net Liquidation Proceeds with respect to the Mortgage
Loans and REO Property, and all amounts received in connection with
the operation of any REO Property, net of any unpaid Servicing Fees
and Master Servicing Fees with respect to such Mortgage Loans, but
only to the extent of the amount permitted to be withdrawn or
withheld from the Collection Account in accordance with Sections
5.04 and 9.21;
(iv) all Insurance Proceeds;
(v) all Advances made by the Master Servicer or any Servicer
pursuant to Section 5.04 or the applicable Servicing Agreement; and
(vi) all proceeds of any Mortgage Loan purchased by any Person.
(e) Funds in each Collection Account may be invested in Eligible
Investments (selected by and at the written direction of the applicable 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, the Securities Administrator or the Paying Agent,
if other than the Trustee or the Securities Administrator, 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 Certificate Account, and any such Eligible Investment
shall not be sold or disposed of prior to its maturity. All such Eligible
Investments shall be made in the name of the Trustee (in its capacity as such)
or its nominee. All income and gain realized from any such investment shall be
for the benefit of the applicable Master Servicer and shall be subject to its
withdrawal on order from time to time, subject to Section 5.05, and shall not
be part of the Trust Fund. The amount of any losses incurred in respect of any
such investments shall be deposited in such Collection Account by the
applicable Master Servicer out of its own funds, without any right of
reimbursement therefor, immediately as realized. The foregoing requirements
for deposit in the Collection Accounts are exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments of
interest on funds in the Collection Accounts and payments in the nature of
late payment charges or assumption fees need not be deposited by the Master
Servicers in the Collection Accounts and may be retained by the applicable
Master Servicer or the applicable Servicer as additional servicing
compensation. If a 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 a Master Servicer does not
provide written direction to the Trustee pursuant to this Section, all funds
on deposit in the applicable Collection Account shall remain uninvested.
Section 4.02 Application of Funds in the Collection Account. Each
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the applicable Collection Account for the following purposes:
(i) to reimburse itself or any related Servicer for Advances
made by it or by such Servicer pursuant to Section 5.04 or the
applicable Servicing Agreement; each 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 applicable 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 such 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 applicable Master Servicing Fee for such
Mortgage Loan to the Due Date next succeeding the date of its
receipt of such Liquidation Proceeds, to pay to itself out of such
excess the amount of any unpaid assumption fees, late payment
charges or other Mortgagor charges on the related Mortgage Loan and
to retain any excess remaining thereafter as additional servicing
compensation, it being understood, in the case of any such
reimbursement or payment, that such Master Servicer's or Servicer's
right thereto shall be prior to the rights of the
Certificateholders;
(iv) in the event it has elected not to pay itself the
applicable Master Servicing Fee out of any Mortgagor payment on
account of interest or other recovery with respect to a particular
Mortgage Loan prior to the deposit of such Mortgagor payment or
recovery in the applicable Collection Account, to pay to itself the
applicable Master Servicing Fee for each Distribution Date and any
unpaid Master Servicing Fees for prior Distribution Dates, as
reduced pursuant to Section 5.05, from any Mortgagor payment as to
interest or such other recovery with respect to that Mortgage Loan,
as is permitted by this Agreement;
(v) to reimburse itself or any Servicer for expenses incurred
by and recoverable by or reimbursable to it or 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);
(vi) 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;
(vii) subject to Section 5.05, to pay to itself income earned
on the investment of funds deposited in the applicable Collection
Account;
(viii) to make payments to the Securities Administrator for
deposit into the Certificate Account in the amounts and in the
manner provided for in Section 4.04;
(ix) to make payment to itself, the Trustee, 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 applicable 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 such Master Servicer, and the
assumption of such duties by the Securities Administrator or a
successor Master Servicer appointed by the Securities Administrator
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
successor Master Servicer or the Securities Administrator 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.
If provided in the related Servicing Agreement, each Servicer shall
be entitled to retain as additional servicing compensation any Prepayment
Penalty Amounts.
In connection with withdrawals pursuant to subclauses (i), (iii),
(iv) and (vi) above, the Master Servicer's or Servicer's entitlement thereto
is limited to collections or other recoveries on the related Mortgage Loan.
The Master Servicer shall therefore keep and maintain a separate accounting
for each Mortgage Loan it master services for the purpose of justifying any
withdrawal from the Collection Account it maintains pursuant to such subclause
(i), (iii), (iv) and (vi).
Section 4.03 Reports to Certificateholders. (a) With respect to Pool
1, Pool 2 and Pool 3, on each Distribution Date, the Securities Administrator
shall have prepared (based solely on information provided by the Group 1-3
Master Servicer) and shall make available to the Trustee and each related
Certificateholder a written report setting forth the information listed below,
by Mortgage Pool and Certificate Group (on the basis of Mortgage Loan level
information obtained from the Master Servicer). With respect to Pool 4, the
Master Servicer shall have prepared and shall deliver to the Trustee, the
Securities Administrator and the related Certificateholders on or before the
second Business Day immediately preceding each Distribution Date, a written
report of the performance of such Mortgage Loans, including the information
listed below:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates,
other than any Class of Notional Certificates, allocable to
principal on the Mortgage Loans, including Liquidation Proceeds and
Insurance Proceeds, stating separately the amount attributable to
scheduled principal payments and unscheduled payments in the nature
of principal in each Mortgage Pool;
(ii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates,
other than any Class of Principal Only Certificates, allocable to
interest, 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 Servicers or any Servicer (or the
Securities Administrator, solely in its capacity as successor Master
Servicer) with respect to such Distribution Date, (B) the aggregate
amount of such Advances actually made, and (C) the amount, if any,
by which (A) above exceeds (B) above;
(v) the Aggregate Principal Balance of the Mortgage Loans and
the Non-AP Pool Balance of each Mortgage Pool for such Distribution
Date, after giving effect to payments allocated to principal
reported under clause (i) above;
(vi) the Class Principal Amount (or Class Notional Amount) of
each Class of Certificates, to the extent applicable, as of such
Distribution Date after giving effect to 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 Trustee 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) the aggregate principal balance of all Mortgage Loans that
have become REO Property and the number of such Mortgage Loans as of
the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs;
(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; and
(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).
In the case of information furnished pursuant to subclauses (i), (ii)
and (vii) above, the amounts shall be expressed as a dollar amount per $1,000
of original principal amount of Certificates.
The foregoing information and reports relating to Pool 1, Pool 2 and
Pool 3, shall be prepared and determined by the Securities Administrator based
solely on Mortgage Loan data provided to the Securities Administrator by the
Group 1-3 Master Servicer (in a format agreed to by the Securities
Administrator and the Master Servicer) no later than 12:00 p.m. (noon) Eastern
Standard Time four Business Days prior to the Distribution Date. In preparing
or furnishing the Mortgage Loan data to the Trustee, the Group 1-3 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 shall be entitled to conclusively rely
on the Mortgage Loan data provided by the Group 1-3 Master Servicer or the
Group 4 Master Servicer and shall have no liability for any errors in such
Mortgage Loan data.
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: MBS Finance, or to such other address as the Depositor
may designate.
(b) Upon the reasonable advance written request of any Certificate
Owner that is a savings and loan, bank, insurance company or other regulated
entity, which request, if received by the Trustee, will be promptly forwarded
to the applicable Master Servicer, such 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
Certificate Owner such reports and access to information and documentation
regarding the related Mortgage Loans as such Certificate Owner 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 Certificate Owner for such Master
Servicer's actual expenses incurred in providing such reports and access.
(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Securities
Administrator shall prepare and make available to each Person who at any time
during the calendar year was a Certificateholder of record, and make available
to Certificate Owners (identified as such by the Clearing Agency) in
accordance with applicable regulations, a report summarizing the items
provided to Certificateholders pursuant to Section 4.03(a) on an annual basis
as may be required to enable such Holders to prepare their federal income tax
returns. Such information shall include the amount of original issue discount
accrued on each Class of Certificates and information regarding the expenses
of the Trust Fund. The Master Servicers shall provide the Securities
Administrator with such information as is necessary for the Securities
Administrator to prepare such reports.
(d) Notwithstanding the foregoing, upon receipt of written notice
from the Depositor that each Class of Call Certificates and Subordinate
Certificates has been sold to an unaffiliated third party, the Securities
Administrator shall make the reports required by this Section 4.03 available
to such Holders of the Call Certificates and/or Subordinate Certificates.
(e) The Securities Administrator shall respond to any inquiry by a
Person purporting to be a beneficial owner, or prospective beneficial owner,
of a Class 2-A1, Class 2-A2, Class 3-A1 or Class 3-A2 Certificate as to the
identity of the initial Holder of either Class of Call Certificates by
identifying such initial Holder as ▇▇▇▇▇▇ Pass-Through Securities Inc.
Section 4.04 Certificate Account. (a) The Securities Administrator on
behalf of the Trustee shall establish and maintain in its name, as trustee, a
trust account (the "Certificate Account"), to be held in trust for the benefit
of the Certificateholders until disbursed pursuant to the terms of this
Agreement. The Certificate Account shall be an Eligible Account. If the
existing Certificate Account ceases to be an Eligible Account, the Securities
Administrator on behalf of 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 Securities Administrator shall cause to be deposited into the
Certificate Account on the day on which, or, if such day is not a Business
Day, the Business Day immediately following the day on which, any monies are
remitted by the Master Servicer to the Securities Administrator all such
amounts. The Securities Administrator shall make withdrawals from the
Certificate Account only for the following purposes:
(i) to withdraw amounts deposited in the Certificate Account in
error;
(ii) to pay itself any investment income earned with respect to
funds in the Certificate Account invested in Eligible Investments as
set forth in subsection (c) below, and to make payments to itself
prior to making distributions pursuant to Section 5.02 for any
expenses or other indemnification owing to the Trustee and the
Securities Administrator 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 Servicers;
(iv) to make distributions to the Certificateholders pursuant
to Article V; and
(v) to clear and terminate the Certificate Account pursuant to
Section 7.02.
(c) The Securities Administrator 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 Securities
Administrator 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.
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 and Section 7.04 with
respect to the exercise of the Class 2-A1 Call Option or the Class 3-A1 Call
Option, on each Distribution Date the Securities Administrator 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 Securities Administrator) or, upon written
request made to the Securities Administrator at least three Business Days
prior to the related Distribution Date to any Certificateholder owning an
aggregate initial Certificate Principal Amount of at least $2,500,000, or, in
the case of the Notional Certificates and Principal Only Certificates, a
Percentage Interest of more than 25%, by wire transfer in immediately
available funds to an account specified in the request and at the expense of
such Certificateholder; provided, however, that the final distribution in
respect of any Certificate shall be made only upon presentation and surrender
of such Certificate at the Corporate Trust Office. Wire transfers will be made
at the expense of the Holder requesting such wire transfer by deducting a wire
transfer fee from the related distribution. Notwithstanding such final payment
of principal of any of the Certificates, each Residual Certificate will remain
outstanding until the termination of each REMIC and the payment in full of all
other amounts due with respect to the Residual Certificate and at such time
such final payment in retirement of any Residual Certificate will be made only
upon presentation and surrender of such Certificate at the Corporate Trust
Office of the Securities Administrator or at the office of its designated
presenting agent in New York. If any payment required to be made on the
Certificates is to be made on a day that is not a Business Day, then such
payment will be made on the next succeeding Business Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Certificate Principal Amounts (or
initial Notional Amounts).
Section 5.02 Distributions from the Certificate Account. (a) On each
Distribution Date, the Securities Administrator (or the Paying Agent on behalf
of the Securities Administrator) shall withdraw from the Certificate Account
the Available Distribution Amount with respect to each Mortgage Pool, and
shall distribute such amount to the Trustee and itself (in the case of clause
(i)) and to the Holders of record of each Class of Certificates, in the
following order of priority:
(ii) from the Available Distribution Amount for each Mortgage
Pool, to the Trustee, the Trustee Fee (from which the Securities
Administrator shall be paid as separately agreed with the Trustee )
allocable to that Mortgage Pool for that Distribution Date (to the
extent not previously paid);
(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 on or prior to the related Call Date), 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;
(iv) 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 on or prior to the related Call Date), 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;
(v) 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-A2, and Class R-1
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 R-I and Class 1-A1 Certificates, the
Senior Principal Distribution Amount for Pool 1 in the
following order of priority:
(a) to the Class R-I Certificates, until the Class
Principal Amount thereof has been reduced to zero; and
(b) to the Class 1-A1 Certificates, until their Class
Principal Amount has been reduced to zero; and
(2) to the Class 1-A2 Certificates, the AP Principal
Distribution Amount for Pool 1, until their Class
Principal Amount has been reduced to zero; and
(B) to the Class 2-A1, Class 2-A2, and Class 2-A4
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) pro rata, to the Class 2-A1 and Class 2-A2
Certificates, the Senior Principal Distribution Amount for
Pool 2 for such Distribution Date until the Class
Principal Amount of each Class has been reduced to zero;
and
(2) to the Class 2-A4 Certificates, the AP Principal
Distribution Amount for Pool 2, until their Class
Principal Amount has been reduced to zero;
(C) to the Class 3-A1, 3-A2 and Class 3-A4 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) pro rata, to the Class 3-A1 and Class 3-A2
Certificates, the Senior Principal Distribution Amount for
Pool 3 for such Distribution Date, until the Class
Principal Amount of each Class has been reduced to zero;
and
(2) to the Class 3-A4 Certificates, the AP
Distribution Amount for Pool 3 for such Distribution Date,
until their Class Principal Amount has been reduced to
zero;
(D) to the Class 4-A1 and Class R-II Certificates, from
the Available Distribution Amount for Pool 4 for such
Distribution Date, in reduction of their respective Class
Principal Amounts, in the following order of priority:
(1) to the Class R-II Certificate, the Senior
Principal Distribution Amount for Pool 4, until its Class
Principal Amount has been reduced to zero; and
(2) to the Class 4-A1 Certificates, the remaining
Senior Principal Distribution Amount for Pool 4, until
their Class Principal Amount has been reduced to zero;
(vi) to the Class 1-A2, 2-A4 and Class 3-A4 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 aggregate Subordinate
Principal Distribution Amount for all three Mortgage Pools for such
date; and (B) such amounts will not reduce the Class Principal
Amounts of such Classes;
(vii) from the remaining Available Distribution Amount for Pool
1, Pool 2 and Pool 3, subject to the prior distribution of amounts
pursuant to Section 5.02(f) in the case of clauses (C), (F), (I),
(L), (O) and (R) below, to the Subordinated Certificates relating to
Pool 1, Pool 2 and Pool 3, in the following order of priority:
(A) pro rata, to the Class B1-I and Class B1-I-X
Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by each such Class's allocable
share of any Net Prepayment Interest Shortfalls for such
Distribution Date;
(B) pro rata, to the Class B1-I and Class B1-I-X
Certificates, any Interest Shortfall for each such Class on
such Distribution Date;
(C) to the Class B1-I Certificates, in reduction of the
Class Principal Amount thereof, such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount of
Pool 1, Pool 2 and Pool 3 for such Distribution Date, except as
provided in Section 5.02(c), until the Certificate Principal
Balance thereof has been reduced to zero;
(D) to the Class B2-I Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(E) to the Class B2-I Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(F) to the Class B2-I Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of the Subordinate Principal Distribution
Amount of Pool 1, Pool 2 and Pool 3 for such Distribution Date,
except as provided in Section 5.02(c), until the Class
Principal Amount thereof has been reduced to zero;
(G) to the Class B3-I Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(H) to the Class B3-I Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(I) to the Class B3-I Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of the Subordinate Principal Distribution
Amount of Pool 1, Pool 2 and Pool 3 for such Distribution Date,
except as provided in Section 5.02(c), until the Class
Principal Amount thereof has been reduced to zero;
(J) to the Class B4-I Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(K) to the Class B4-I Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(L) to the Class B4-I Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of the Subordinate Principal Distribution
Amount of Pool 1, Pool 2 and Pool 3 for such Distribution Date,
except as provided in Section 5.02(c), until the Certificate
Principal Balance thereof has been reduced to zero;
(M) to the Class B5-I Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(N) to the Class B5-I Certificates, any Interest Shortfall
for such Class on such Distribution Date;
(O) to the Class B5-I Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of the Subordinate Principal Distribution
Amount of Pool 1, Pool 2 and Pool 3 for such Distribution Date,
except as provided in Section 5.02(c), until the Class
Principal Balance thereof has been reduced to zero;
(P) to the Class B6-I Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, as
reduced by such Class's allocable share of any Net Prepayment
Interest Shortfalls for such Distribution Date;
(Q) to the Class B6-I Certificates, any Interest Shortfall
for such Class on such Distribution Date; and
(R) to the Class B6-I Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate
Class Percentage of the Subordinate Principal Distribution
Amount of Pool 1, Pool 2 and Pool 3 for such Distribution Date,
except as provided in Section 5.02(c), until the Certificate
Principal Balance thereof has been reduced to zero;
(viii) from the remaining Available Distribution Amount for
Pool 4, to the Subordinated Certificates relating to Pool 4, in the
following order of priority:
(A) to the Class B1-II Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls
for such Distribution Date;
(B) to the Class B1-II Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(C) to the Class B1-II Certificates, in reduction of the Class
Principal Amount thereof, such Class's Subordinate Class Percentage
of the Subordinate Principal Distribution Amount for Pool 4 for such
Distribution Date, except as provided in Section 5.02(c), until the
Certificate Principal Balance thereof has been reduced to zero;
(D) to the Class B2-II Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls
for such Distribution Date;
(E) to the Class B2-II Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(F) to the Class B2-II Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for Pool
4 for such Distribution Date, except as provided in Section 5.02(c),
until the Class Principal Amount thereof has been reduced to zero;
(G) to the Class B3-II Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls
for such Distribution Date;
(H) to the Class B3-II Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(I) to the Class B3-II Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for Pool
4 for such Distribution Date, except as provided in Section 5.02(c),
until the Class Principal Amount thereof has been reduced to zero;
(J) to the Class B4-II Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls
for such Distribution Date;
(K) to the Class B4-II Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(L) to the Class B4-II Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for Pool
4 for such Distribution Date, except as provided in Section 5.02(c),
until the Certificate Principal Balance thereof has been reduced to
zero;
(M) to the Class B5-II Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls
for such Distribution Date;
(N) to the Class B5-II Certificates, any Interest Shortfall for
such Class on such Distribution Date;
(O) to the Class B5-II Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for Pool
4 for such Distribution Date, except as provided in Section 5.02(c),
until the Class Principal Balance thereof has been reduced to zero;
(P) to the Class B6-II Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, as reduced by such
Class's allocable share of any Net Prepayment Interest Shortfalls
for such Distribution Date;
(Q) to the Class B6-II Certificates, any Interest Shortfall for
such Class on such Distribution Date; and
(R) to the Class B6-II Certificates, in reduction of the
Certificate Principal Amount thereof, such Class's Subordinate Class
Percentage of each Subordinate Principal Distribution Amount for
such Distribution Date, except as provided in Section 5.02(c), until
the Certificate Principal Balance thereof has been reduced to zero.
(b) Net Prepayment Interest Shortfalls for each Mortgage Pool shall
be allocated among the Certificates of the related Certificate Group (other
than any related Principal Only Certificates on or prior to the related Call
Date) pro rata based on (i) in the case of the related Non-AP Senior
Certificates, the Accrued Certificate Interest otherwise distributable
thereon, and (ii) in the case of the Subordinate Certificates, interest
accrued on the related Principal Amounts.
(c) (i) If on any Distribution Date the Credit Support Percentage for
the Class B1-I Certificates is less than the Original Credit Support
Percentage for such Class, then, notwithstanding anything to the contrary in
Section 5.02(a), no distribution of amounts described in clauses (ii) and
(iii) of the definition of Subordinate Principal Distribution Amount for Pool
1, Pool 2 and Pool 3 will be made in respect of the Class B2-I, Class B3-I,
Class B4-I, Class B5-I or Class B6-I Certificates on such Distribution Date.
(ii) If on any Distribution Date the Credit Support Percentage for the Class
B2-I Certificates is less than the Original Credit Support Percentage for such
Class, then, notwithstanding anything to the contrary in Section 5.02(a), no
distribution of amounts described in clauses (ii) and (iii) of the definition
of Subordinate Principal Distribution Amount for Pool 1, Pool 2 and Pool 3
will be made in respect of the Class B3-I, Class B4-I, Class B5-I or Class
B6-I Certificates on such Distribution Date. (iii) If on any Distribution Date
the Credit Support Percentage for the Class B3-I Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount for Pool 1, Pool 2 and Pool 3 will be made in respect of
the Class B4-I, Class B5-I or Class B6-I Certificates on such Distribution
Date. (iv) If on any Distribution Date the Credit Support Percentage for the
Class B4-I Certificates is less than the Original Credit Support Percentage
for such Class, then, notwithstanding anything to the contrary in Section
5.02(a), no distribution of amounts described in clauses (ii) and (iii) of the
definition of Subordinate Principal Distribution Amount for Pool 1, Pool 2 and
Pool 3 will be made in respect of the Class B5-I or Class B6-I Certificates on
such Distribution Date. (v) If on any Distribution Date the Credit Support
Percentage for the Class B5-I Certificates is less than the Original Credit
Support Percentage for such Class, then, notwithstanding anything to the
contrary in Section 5.02(a), no distribution of amounts described in clauses
(ii) and (iii) of the definition of Subordinate Principal Distribution Amount
for Pool 1, Pool 2 and Pool 3 will be made in respect of the Class B6 -I
Certificates on such Distribution Date.
Any amount not distributed in respect of any Class on any
Distribution Date pursuant to the immediately preceding paragraph will be
allocated among the remaining Subordinate Classes relating, to Pool 1, Pool 2
and Pool 3 in proportion to their respective Certificate Principal Amounts.
(d) If on any Distribution Date the Credit Support Percentage for the
Class B1-II Certificates is less than the Original Credit Support Percentage
for such Class, then, notwithstanding anything to the contrary in Section
5.02(a), no distribution of amounts described in clauses (ii) and (iii) of the
definition of Subordinate Principal Distribution Amount for Pool 4 will be
made in respect of the Class B2-II, Class B3-II, Class B4-II, Class B5-II or
Class B6-II Certificates on such Distribution Date. (ii) If on any
Distribution Date the Credit Support Percentage for the Class B2-II
Certificates is less than the Original Credit Support Percentage for such
Class, then, notwithstanding anything to the contrary in Section 5.02(a), no
distribution of amounts described in clauses (ii) and (iii) of the definition
of Subordinate Principal Distribution Amount for Pool 4 will be made in
respect of the Class B3-II, Class B4-II, Class B5-II or Class B6-II
Certificates on such Distribution Date. (iii) If on any Distribution Date the
Credit Support Percentage for the Class B3-II Certificates is less than the
Original Credit Support Percentage for such Class, then, notwithstanding
anything to the contrary in Section 5.02(a), no distribution of amounts
described in clauses (ii) and (iii) of the definition of Subordinate Principal
Distribution Amount for Pool 4 will be made in respect of the Class B4-II,
Class B5-II or Class B6-II Certificates on such Distribution Date. (iv) If on
any Distribution Date the Credit Support Percentage for the Class B4-II
Certificates is less than the Original Credit Support Percentage for such
Class, then, notwithstanding anything to the contrary in Section 5.02(a), no
distribution of amounts described in clauses (ii) and (iii) of the definition
of Subordinate Principal Distribution Amount for Pool 4 will be made in
respect of the Class B5-II or Class B6-II Certificates on such Distribution
Date. (v) If on any Distribution Date the Credit Support Percentage for the
Class B5-II Certificates is less than the Original Credit Support Percentage
for such Class, then, notwithstanding anything to the contrary in Section
5.02(a), no distribution of amounts described in clauses (ii) and (iii) of the
definition of Subordinate Principal Distribution Amount for Pool 4 will be
made in respect of the Class B6-II Certificates on such Distribution Date.
Any amount not distributed in respect of any Class on any
Distribution Date pursuant to the immediately preceding paragraph will be
allocated among the remaining Subordinate Classes relating to Pool 4 in
proportion to their respective Certificate Principal Amounts.
(e) (i) On each Distribution Date, the Securities Administrator
shall distribute to the Holder of the Class R-I Certificate any
amounts remaining in the Group 1-3 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-I Certificate.
(ii) On each Distribution Date, the Securities Administrator
shall distribute to the Holder of the Class R-II Certificate any
amounts remaining in the Group 4 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-II Certificate.
(f) (i) On each Distribution Date prior to the Credit Support
Depletion Date for Certificate Group 1, Certificate Group 2 and Certificate
Group 3, but after the date on which the aggregate Certificate Principal
Amount of the Non-AP Senior Certificates of Certificate Group 1, Certificate
Group 2 or Certificate Group 3 have been reduced to zero, amounts otherwise
distributable as principal on each of the Class B1-I, Class B2-I, Class B3-I,
Class B4-I, Class B5-I and Class B6-I Certificates pursuant to Section
5.02(a)(vi), in reverse order of priority, in respect of such Class's
Subordinate Class Percentage of the Subordinate Principal Distribution Amount
for the Mortgage Pool relating to such retired Certificates, shall be
distributed as principal to the Non-AP Senior Certificates (other than any
Notional Certificates) remaining outstanding in Certificate Group 1,
Certificate Group 2 or Certificate Group 3, as applicable, pursuant to Section
5.02(a)(iv), until the Class Principal Amounts thereof have been reduced to
zero, provided that on such Distribution Date (a) the Group 1-3 Subordinate
Percentage for such Distribution Date is less than 200% of the Group 1-3
Subordinate Percentage as of the Cut-off Date or (ii) the average outstanding
principal balance of the Mortgage Loans in Pool 1, Pool 2 or Pool 3 that are
delinquent 60 days or more for the last six months as a percentage of the
related Group Subordinate Amount is greater than or equal to 50%.
(A) On each Distribution Date on which the aggregate
Certificate Principal Amount of the Non-AP Senior Certificates
of any two Certificate Groups of Certificate Group 1,
Certificate Group 2 and Certificate Group 3 has been reduced to
zero, any amounts distributable pursuant to this Section
5.02(f)(i) will be allocated, as to each applicable Class of
Subordinate Certificates, in proportion to such Class's
Subordinate Class Percentage of the Subordinate Principal
Distribution Amount for the Mortgage Pool relating to each such
retired Certificate Group.
(B) On each Distribution Date on which the Non-AP Senior
Certificates of two Certificate Groups of Certificate Group 1,
Certificate Group 2 and Certificate Group 3 remain outstanding,
any amounts distributable pursuant to this Section 5.02(f)(i)
will be distributed in proportion to the aggregate Certificate
Principal Amounts of such Certificates of each such Certificate
Group.
(ii) (A) On any Distribution Date on which any of Certificate
Group 1, Certificate Group 2 or Certificate Group 3 constitutes an
Undercollateralized Group, all amounts otherwise distributable as
principal on each of the Class B1-I, B2-I, B3-I, B4-I, B5-I and B6-I
Certificates, in reverse order of priority (other than amounts
necessary to pay Class AP Deferred Amounts or unpaid Interest
Shortfalls) (or, following the Credit Support Depletion Date, such
other amounts described in the immediately following sentence), will
be distributed as principal to the Non-AP Senior Certificates (other
than any Notional Certificates) of such Undercollateralized Group
pursuant to Section 5.02(iii), until the aggregate Certificate
Principal Amount of such Non-AP Senior Certificates equals the
Non-AP Pool Balance of the related Mortgage Pool (such distribution,
an "Undercollateralization Distribution"). In the event that
Certificate Group 1, Certificate Group 2 or Certificate Group 3
constitutes an Undercollateralized Group on any Distribution Date
following the Credit Support Depletion Date for Pool 1, Pool 2 and
Pool 3, Undercollateralization Distributions will be made from any
Available Distribution Amount for the Mortgage Pool not related to
an Undercollateralized Group remaining after all required amounts
have been distributed to the Non-AP Senior Certificates of such
other Certificate Group. In addition, the amount of any unpaid
Interest Shortfalls with respect to an Undercollateralized Group on
any Distribution Date (including any Interest Shortfalls for such
Distribution Date) will be distributed to the Non-AP Senior
Certificates of such Undercollateralized Group prior to the payment
of any Undercollateralization Distributions from amounts otherwise
distributable as principal on the Class B1-I, B2-I, B3-I, B4-I, B5-I
and B6-I Certificates, in reverse order of priority (or, following
the Credit Support Depletion Date, as provided in the preceding
sentence).
(B) If on any Distribution Date two Certificate Groups of
Certificate Group 1, Certificate Group 2 and Certificate Group
3 are Undercollateralized Groups and one Certificate Group is
not an Undercollateralized Group, the distributions described
in paragraph (ii)(A) above will be made in proportion to the
amount by which the aggregate Certificate Principal Amount of
the Non-AP Senior Certificates, after giving effect to
distributions pursuant to Sections 5.02(a) and (b) on such
Distribution Date, of each Undercollateralized Group exceeds
the Non-AP Pool Balance of the related Mortgage Pool for such
Distribution Date.
(g) On each Distribution Date following the Credit Support Depletion
Date for either Group 1, Group 2 or Group 3 on the one hand or Group 4 on the
other hand, to the extent described below, amounts otherwise distributable as
principal on the Class B4 Certificates then outstanding shall be distributed
as principal on the Class of Class A Certificates with respect to which a
Credit Support Depletion Date has occurred and with respect to which the
related Pool had experienced a Special Hazard Loss, which is not an Excess
Loss, during the related Due Period. The portion of such amounts to be
distributed on such Class A Certificates shall be limited to such Class or
Classes pro rata share based on the current Principal Amounts of such Class A
Certificates and Class B4 Certificates. In the event that more than one Class
of Class A Certificates shall be entitled to amounts described above, such
amounts shall be allocated among such Class A Certificates pro rata based on
the amount of such Special Hazard Losses incurred by each effected Pool.
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 applicable Mortgage Pool will be allocated to the related Class of
Principal Only Certificates until the Class Principal Amount thereof has been
reduced to zero; and (y) the applicable Non-AP Percentage of the principal
portion of each Realized Loss (other than any Excess Loss) in respect of a
Mortgage Loan in Pool 1, Pool 2 or Pool 3 shall be allocated in the following
order of priority:
first, to the Class B6-I Certificates, until the Class
Principal Amount thereof has been reduced to zero;
second, to the Class B5-I Certificates, until the Class
Principal Amount thereof has been reduced to zero;
third, to the Class B4-I Certificates, until the Class
Principal Amount thereof has been reduced to zero;
fourth, to the Class B3-I Certificates, until the Class
Principal Amount thereof has been reduced to zero;
fifth, to the Class B2-I Certificates, until the Class
Principal Amount thereof has been reduced to zero;
sixth, to the Class B1-I Certificates, until the Class
Principal Amount thereof has been reduced to zero; and
seventh, to the Classes of Senior Certificates of the
related Certificate Group, pro rata, in accordance with their
Class Principal Amounts; and
(b) the principal portion of each Realized Loss (other than any
Excess Loss) in respect of a Mortgage Loan in Pool 4 shall be allocated in the
following order of priority:
first, to the Class B6-II Certificates, until the Class
Principal Amount thereof has been reduced to zero;
second, to the Class B5-II Certificates, until the Class
Principal Amount thereof has been reduced to zero;
third, to the Class B4-II Certificates, until the Class
Principal Amount thereof has been reduced to zero;
fourth, to the Class B3-II Certificates, until the Class
Principal Amount thereof has been reduced to zero;
fifth, to the Class B2-II Certificates, until the Class
Principal Amount thereof has been reduced to zero;
sixth, to the Class B1-II Certificates, until the Class
Principal Amount thereof has been reduced to zero; and
seventh, to the Class 4-A1 Certificates.
(c) With respect to any Distribution Date, the principal portion of
any Excess Loss in respect of a Mortgage Loan in Pool 4 shall be allocated,
pro rata, to the Class B1-II, B2-II, B3-II, B4-II, B5-II and B6-II
Certificates and the Class 4A-1 Certificates based on the Principal Amounts of
the Class B1-II, B2-II, B3-II, B4-II, B5-II and B6-II Certificates and the
Class Principal Amount of the Class 4A-1 Certificates.
(d) 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 in Pool 1, Pool 2 or Pool 3 shall be allocated, pro rata, to the
Class B1-I, B2-I, B3-I, B4-I, B5-I and B6-I Certificates (without regard to
which Mortgage Pool experienced the loss) and the Group 1, Group 2 and Group 3
Certificates (without regard to whether the Realized Loss was realized by Pool
1, Pool 2 or Pool 3) and on the basis of the Principal Amounts of the Class
B1-I, B2-I, B3-I, B4-I, B5-I, and B6-I Certificates and Class Principal
Amounts of the Group 1, Group 2 and Group 3 Certificates. The applicable AP
Percentage of the principal portion of an Excess Loss in a Pool 1, Pool 2 or
Pool 3 will be applied to the related Class of Principal Only Certificates
until the Class Principal Amount thereof has been reduced to zero.
(e) Any Realized Losses allocated to a Class of Certificates pursuant
to Section 5.03 shall be allocated among the Certificates of such Class in
proportion to their respective Certificate Principal Amounts. Any allocation
of Realized Losses pursuant to Section 5.03 shall be accomplished by reducing
the Certificate Principal Amount of the related Certificates on the related
Distribution Date in accordance with Section 5.03(f).
(f) 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.
(g) Notwithstanding the foregoing, on any Distribution Date on which
the Certificate Principal Amounts of the Subordinate Certificates relating to
either Group 1, Group 2 and Group 3, or Group 4, have been reduced to zero and
a Special Hazard Loss (that is not an Excess Loss) is allocated to the related
Class A Certificates, such loss will be allocated among such Class A
Certificates and the Class B4 Certificates related to the other Certificate
Group or Groups then outstanding on a pro rata basis, based on the Current
Principal Amounts thereof.
(h) On each Distribution Date, the Subordinate Certificate Writedown
Amount for such date shall effect a corresponding reduction in the Certificate
Principal Amount of the lowest ranking Class of outstanding related
Subordinate Certificates, which reduction shall occur on such Distribution
Date after giving effect to distributions made on such Distribution Date.
(i) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates, each outstanding Class
to which any portion of such Realized Loss had previously been allocated shall
be entitled to receive, on the Distribution Date in the month following the
month in which such recovery is received, its pro rata share (based on the
Class Principal Amount thereof) of such recovery, up to the amount of the
portion of such Realized Loss previously allocated to such Class. In the event
that the total amount of such recovery exceeds the amount of Realized Loss
allocated to the outstanding Classes in accordance with the preceding
provisions, each outstanding Class of Certificates shall be entitled to
receive its pro rata share of the amount of such excess, up to the amount of
any unrecovered Realized Loss previously allocated to such Class. Any such
recovery allocated to a Class of Certificates shall not further reduce the
Certificate Principal Amount of such Certificate. Any such amounts not
otherwise allocated to any Class of Certificates, pursuant to this subsection
shall be treated as Principal Prepayments for purposes of this Agreement.
Section 5.04 Advances by Master Servicers and Securities
Administrator. (a) Advances shall be made in respect of each Master Servicer
Remittance Date as provided herein. If, on any Determination Date, a 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 and the Securities Administrator 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 a 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 Certificate Account immediately available funds
in an amount equal to such Advance, (ii) cause to be made an appropriate entry
in the records of the Collection Account that funds in such account being held
for future distribution or withdrawal have been, as permitted by this Section
5.04, used by the Master Servicer to make such Advance, and remit such
immediately available funds to the Securities Administrator for deposit in the
Certificate Account or (iii) make Advances in the form of any combination of
clauses (i) and (ii) aggregating the amount of such Advance. Any funds being
held in the Collection Account for future distribution to Certificateholders
and so used shall be replaced by the Master Servicer from its own funds by
remittance to the Securities Administrator for deposit in the Certificate
Account on or before any future Master Servicer Remittance Date to the extent
that funds in the Certificate 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 Servicers 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 a Master Servicer fails for any reason to make
an Advance required to be made pursuant to this Section 5.04 on or before the
Master Servicer Remittance Date, the Securities Administrator, solely in its
capacity as successor Master Servicer pursuant to Section 6.14, shall, on or
before the related Distribution Date, deposit in the Certificate Account an
amount equal to the excess of (a) Advances required to be made by the Master
Servicer 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
Securities Administrator shall be required to make such Advance only if it is
not prohibited by law from doing so and it has determined that such Advance
would be recoverable from amounts to be received with respect to such Mortgage
Loan, including late payments, Liquidation Proceeds, Insurance Proceeds, or
otherwise. The Securities Administrator shall be entitled to be reimbursed
from the Certificate Account for Advances made by it pursuant to this Section
5.04 as if it were a Master Servicer.
Section 5.05 Compensating Interest Payments. The amount of the Master
Servicing Fee payable to a 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 Servicers.
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 undertake 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.
(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
Servicers, 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 a 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 a 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 Servicers under this Agreement except, with respect to
the Securities Administrator, during such time, if any, as the
Securities Adminsitrator shall be the successor to, and be vested
with the rights, duties, powers and privileges of, a Master Servicer
in accordance with the terms of this Agreement.
(d) Neither the Trustee nor the Securities Administrator shall have
any 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 and the
Securities Administrator shall use their commercially reasonable best efforts
to remit to the related 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) Subject to Section 4.04, neither the Trustee nor the Securities
Administrator shall be held liable by reason of any insufficiency in any
account (including without limitation the Collection Account) held by or on
behalf of the Trustee resulting from any investment loss on any Eligible
Investment included therein (except to the extent that the Trustee or the
Securities Administrator, as the case may be, 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 a Master Servicer delivered to the Trustee or the
Securities Administrator 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 or the Securities
Administrator, as applicable, 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 and Securities Administrator Not Liable for
Certificates. The Trustee and the Securities Administrator make no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the
Certificates) or of any Mortgage Loan, or related document save that the
Trustee and the Securities Administrator represent that, assuming due
execution and delivery by the other parties hereto, this Agreement has been
duly authorized, executed and delivered by it and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms except
that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law.
The Trustee and the Securities Administrator shall not be accountable for the
use or application by the Depositor of funds paid to the Depositor in
consideration of the assignment of the Mortgage Loans to the Trust Fund by the
Depositor or for the use or application of any funds deposited into the
Collection Account, the Certificate Account, any Escrow Account or any other
fund or account maintained with respect to the Certificates. The Trustee and
the Securities Administrator shall not be responsible for the legality or
validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be
issued hereunder. Except as otherwise provided herein, the Trustee and the
Securities Administrator shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to record this Agreement.
Section 6.04 Trustee and the Securities Administrator May Own
Certificates. The Trustee, the Securities Administrator and any Affiliate or
agent of the Trustee or Securities Administrator in its individual or any
other capacity may become the owner or pledgee of Certificates and may
transact banking and trust with the other parties hereto with the same rights
it would have if it were not Trustee, Securities Administrator or such agent.
Section 6.05 Eligibility Requirements for Trustee and Securities
Administrator. Each of the Trustee and the Securities Administrator hereunder
shall at all times be (i) an institution insured by the FDIC and (ii) a
corporation or national banking association, organized and doing business
under the laws of any State or the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or national banking
association publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, the combined capital and surplus of
such corporation or national banking association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time either the Trustee or the
Securities Administrator shall cease to be eligible in accordance with
provisions of this Section, the Trustee or the Securities Administrator, as
applicable, shall resign immediately in the manner and with the effect
specified in Section 6.06.
Section 6.06 Resignation and Removal of Trustee and Securities
Administrator. (a) Each of the Trustee and the Securities Administrator may at
any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Trustee or the Securities Administrator, as
applicable, the Depositor and the Master Servicer. Upon receiving such notice
of resignation, the Depositor will promptly appoint a successor trustee or
successor Securities Administrator, as applicable, by written instrument, one
copy of which instrument shall be delivered to the resigning Trustee or
resigning Securities Administrator, as applicable, one copy to the successor
trustee or successor Securities Administrator, as applicable, and one copy to
the Master Servicer. 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, 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, 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 and the
Depositor 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, 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 not
become effective until 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 Servicers and to its predecessor trustee or
predecessor Securities Administrator, as applicable, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee or predecessor Securities Administrator, as applicable,
shall become effective and such successor trustee or successor Securities
Administrator, as applicable, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations
of its predecessor hereunder, with like effect as if originally named as
trustee or securities administrator, as applicable, herein. The predecessor
trustee or predecessor Securities Administrator, as applicable, shall deliver
to the successor trustee (or assign to the Trustee its interest under each
Custodial Agreement, to the extent permitted thereunder) or Securities
Administrator, as applicable, all Mortgage Files and documents and statements
related to each Mortgage Files held by it hereunder, and shall duly assign,
transfer, deliver and pay over to the successor trustee the entire Trust Fund,
together with all necessary instruments of transfer and assignment or other
documents properly executed necessary to effect such transfer and such of the
record or copies thereof maintained by the predecessor trustee in the
administration hereof as may be requested by the successor trustee or
securities administrator, as applicable, and shall thereupon be discharged
from all duties and responsibilities under this Agreement. In addition, the
Master Servicers 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 Servicers shall mail notice of the succession of such
trustee or securities administrator, as applicable, hereunder to all Holders
of Certificates at their addresses as shown in the Certificate Register and to
the Rating Agencies. The expenses of such mailing shall be borne by the Master
Servicers.
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 affected thereby 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 a 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. The Trustee hereby appoints and
the Securities Administrator hereby accepts its appointment as the initial
Authenticating Agent. 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) The Securities Administrator as Authenticating Agent shall be
subject to the same standards of care, limitations on liability and rights to
indemnity as the Trustee and the provisions of Article VI shall apply to the
Authenticating Agent to the same extent as they apply to the Trustee. Any
Authenticating Agent may at any time resign by giving at least 30 days'
advance written notice of resignation to the Trustee and the Depositor. The
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.10, the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment
to the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No Authenticating Agent shall have responsibility or liability for any action
taken by it as such at the direction of the Trustee. Any Authenticating Agent
shall be entitled to reasonable compensation for its services and, if paid by
the Trustee, it shall be a reimbursable expense pursuant to Section 6.12.
Section 6.11 Indemnification of Trustee and Securities Administrator.
The Trustee and the Securities Administrator and their respective directors,
officers, employees and agents shall be entitled to indemnification from the
Trust Fund for any loss, liability or expense incurred in connection with any
legal proceeding and incurred without negligence or willful misconduct on
their part, arising out of, or in connection with, the acceptance or
administration of the trusts created hereunder or in connection with the
performance of their duties hereunder, including any applicable fees and
expenses payable pursuant to Section 6.12 and the costs and expenses of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder, provided that:
(i) with respect to any such claim, the Trustee or the
Securities Administrator, as applicable, shall have given the
Depositor, the Master Servicers and the Holders written notice
thereof promptly after the Trustee or the Securities Administrator,
as applicable, shall have knowledge thereof; provided that failure
to so notify shall not relieve the Trust Fund of the obligation to
indemnify the Trustee or the Securities Administrator;
(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 withdraw from the Certificate
Account pursuant to Section 4.06(c)(ii), the Trustee Fee and shall remit to
the Trustee its fees and expenses as separately agreed. The Trustee is
authorized to instruct the Securities Administrator to pay to itself the
amount of income or gain earned from the investment of funds in the
Certificate Account, and to pay to itself or the Trustee, as applicable, all
reasonable expenses, disbursements and advancements incurred 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.
Section 6.13 Collection of Monies. Except as otherwise expressly
provided in this Agreement, the Trustee and the Securities Administrator may
demand payment or delivery of, and shall receive and collect, all money and
other property payable to or receivable by them pursuant to this Agreement.
Each of the Trustee and the Securities Administrator 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 Securities Administrator shall not have
timely received amounts to be remitted with respect to the Mortgage Loans from
a Master Servicer, the Securities Administrator shall request the Master
Servicer to make such distribution as promptly as practicable or legally
permitted. If the Securities Administrator 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 a 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, with respect to the Group 1-3 Master
Servicer, and thirty (30) Business Days with respect to the Group 4
Master Servicer, 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 a 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 a Master Servicer, and such decree or order shall
have remained in force undischarged or unstayed for a period of 60
days or with respect to the Group 1-3 Master Servicer only, 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) A 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) A 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) A Master Servicer shall be dissolved, or shall dispose of
all or substantially all of its assets, or, with respect to the
Group 1-3 Master Servicer only, 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 30 days after the date on which
written notice of such incorrect representation or warranty shall
have been given to the Master Servicers by the Trustee or the
Securities Administrator, or to the Master Servicers, 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 relating to such Master Servicer, provided, however,
that the applicable Master Servicer may be granted an additional 30
days to eliminate or cure such incorrect representation or warranty
if such Master Servicer can demonstrate that it is diligently
pursuing such elimination or cure; or
(viii) A sale or pledge of the any of the rights of a Master
Servicer hereunder or an assignment of this Agreement by a Master
Servicer or a delegation of the rights or duties of a 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 relating to such Master Servicer;
(ix) With respect to the Group 1-3 Master Servicer only, any
Servicer at any time is not either an FNMA- or FHLMC- approved
Seller/Servicer, and the applicable 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 a Master Servicer to remit to the Securities
Administrator 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 applicable 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 relating to such Master
Servicer, terminate all of the rights and obligations of such 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, (i) with respect to the Group 1-3 Master Servicer, in each and every
case, subject to applicable law, the Trustee, by notice in writing to the
applicable Master Servicer, shall promptly terminate all of the rights and
obligations of such Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof; and (ii) with respect to the Group 4 Master
Servicer, in each and every case, subject to applicable law, the Trustee, by
notice in writing to the applicable Master Servicer, shall promptly suspend
all of the rights and obligations of such Master Servicer hereunder and in and
to the Mortgage Loans and the proceeds thereof. Any such suspension action
must be taken by the Trustee prior to the related Distribution Date. If the
Group 4 Master Servicer shall within two Business Days following such
suspension remit to the Securities Administrator the amount of any payment the
nonpayment of which by the Group 4 Master Servicer was an Event of Default
described in clause (x) of this Section 6.14, the Securities Adminsitrator
shall permit the Master Servicer to resume its rights and obligations as
Master Servicer hereunder. The Master Servicer agrees that it will reimburse
the Securities Administrator and the Trustee for actual, necessary and
reasonable costs incurred by the Securities Administrator because of actions
taken pursuant to clause (x) of this Section 6.14. The Master Servicer agrees
that if an Event of Default as described in clause (x) of this Section 6.14
shall occur more than two times in any twelve-month period, the Trustee shall
be under no obligation to permit the Master Servicer to resume its rights and
obligations as Master Servicer hereunder.
On or after the receipt by the applicable Master Servicer of such
written notice of termination, all authority and power of the Master Servicer,
and only in its capacity as Master Servicer under this Agreement, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in the
Securities Administrator pursuant to and under the terms of this Agreement;
and the Securities Administrator is hereby authorized and empowered to execute
and deliver, on behalf of the defaulting Master Servicer as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents or
otherwise. The defaulting Master Servicer agrees to cooperate with the
Securities Administrator 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 Securities Administrator or its designee
all documents and records in electronic or other form reasonably requested by
it to enable the Securities Administrator or its designee to assume the
defaulting Master Servicer's functions hereunder and the transfer to the
Securities Administrator for administration by it of all amounts which shall
at the time be or should have been deposited by the defaulting Master Servicer
in the Collection Account maintained by such defaulting Master Servicer and
any other account or fund maintained with respect to the Certificates or
thereafter received with respect to the Mortgage Loans. The Master Servicer
being terminated shall bear all costs of a master servicing transfer,
including but not limited to those of the Securities Administrator reasonably
allocable to specific employees and overhead, legal fees and expenses,
accounting and financial consulting fees and expenses, and costs of amending
the Agreement, if necessary.
Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
to the extent provided in Section 4.02(i), (ii), (iii), (iv), (v), (vi),
(vii), (ix) and (xi) to the extent such reimbursement relates to the period
prior to such Master Servicer's termination.
If any Event of Default shall occur, the Trustee, upon becoming aware
of the occurrence thereof, shall promptly notify the Securities Administrator
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 a Master Servicer upon such Master Servicer's failure to remit funds on the
Master Servicer Remittance Date.
(b) On and after the time a Master Servicer receives a notice of
termination from the Securities Administrator pursuant to Section 6.14(a) or
the Securities Administrator receives the resignation of a Master Servicer
evidenced by an Opinion of Counsel pursuant to Section 9.29, the Securities
Administrator, unless another master servicer shall have been appointed, shall
be the successor in all respects to such 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 such Master Servicer hereunder, including the obligation
to make Advances; provided, however, that any failure to perform such duties
or responsibilities caused by such Master Servicer's failure to provide
information required by this Agreement shall not be considered a default by
the Securities Administrator hereunder. In addition, the Securities
Administrator shall have no responsibility for any act or omission of a 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
Servicers set forth in Section 9.14. In the Securities Administrator's
capacity as such successor, the Securities Administrator shall have the same
limitations on liability herein granted to the Master Servicers. As
compensation therefor, the Securities Administrator shall be entitled to
receive all compensation payable to the terminated Master Servicer under this
Agreement, including the Master Servicing Fee.
(c) Notwithstanding the above, the Securities Administrator may, if
it shall be unwilling to continue to so act, or shall, if it is unable to so
act, 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 Securities Administrator as a successor master servicer may
be an Affiliate of the Securities Administrator; provided, however, that,
unless such Affiliate meets the net worth requirements and other standards set
forth herein for a successor master servicer, the Securities Administrator, in
its individual capacity shall agree, at the time of such designation, to be
and remain liable to the Trust Fund for such Affiliate's actions and omissions
in performing its duties hereunder. In connection with such appointment and
assumption, the Securities Administrator may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree; provided, however, that no such compensation shall
be in excess of that permitted to the Master Servicer hereunder. The
Securities Administrator and such successor shall take such actions,
consistent with this Agreement, as shall be necessary to effectuate any such
succession and may make other arrangements with respect to the servicing to be
conducted hereunder which are not inconsistent herewith. The terminated Master
Servicer shall cooperate with the Securities Administrator and any successor
master servicer in effecting the termination of the Master Servicer's
responsibilities and rights hereunder including, without limitation, notifying
Mortgagors of the assignment of the master servicing functions and providing
the Securities Administrator and successor master servicer, as applicable, all
documents and records in electronic or other form reasonably requested by it
to enable it to assume the Master Servicer's functions hereunder and the
transfer to the Securities Administrator or such successor master servicer, as
applicable, all amounts which shall at the time be or should have been
deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received with respect to the Mortgage Loans. Neither the Securities
Administrator nor any other successor master servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making,
any distribution hereunder or any portion thereof caused by (i) the failure of
the Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, (ii) the failure of the Master Servicer to cooperate as
required by this Agreement, (iii) the failure of the Master Servicer to
deliver the Mortgage Loan data to the Securities Administrator as required by
this Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer.
Section 6.15 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Event of
Default.
Section 6.16 Waiver of Defaults. 35% or more of the Aggregate Voting
Interests of Certificateholders relating to such Master Servicer may waive any
default or Event of Default by a 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 a Master
Servicer or appointment of a successor to a Master Servicer, in each case as
provided herein, the Trustee shall promptly mail notice thereof by first class
mail to the Securities Administrator 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 the
affected 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 affected 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 a 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 Servicers and
Upon Event of Default. In the event that a Responsible Officer of the Trustee
shall have actual knowledge of any action or inaction of a Master Servicer
that would become an Event of Default upon the Master Servicer's failure to
remedy the same after notice, the Trustee shall give notice thereof to the
Master Servicer and affected Certificateholders. 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 a
Master Servicer or any other Event of Default unless notified in writing by
the Depositor, the Securities Administrator, a 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, 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 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 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. Each Master Servicer will indemnify the Securities Administrator and the
Trustee for any liability of or assessment against the Securities
Administrator or the Trustee, as applicable, resulting from any error in any
of such tax or information returns directly resulting from errors in the
information provided by such Master Servicer.
(b) The Securities Administrator shall prepare and file with the
Internal Revenue Service ("IRS"), on behalf of each of the Lower Tier REMIC
and the Upper Tier REMIC, an application on IRS Form SS-4. The Securities
Administrator, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned for each REMIC, shall promptly forward copies
of such notices to the Master Servicers, the Trustee and the Depositor. The
Securities Administrator will file an IRS Form 8811.
(c) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K. Thereafter, within 15 days after each Distribution
Date, the Securities Administrator shall, in accordance with industry
standards, file with the Securities and Exchange Commission (the "Commission")
via the Electronic Data Gathering and Retrieval System (▇▇▇▇▇), a Form 8-K
with a copy of the statement to the Certificateholders for such Distribution
Date as an exhibit thereto. Prior to January 30, 2002, the Securities
Administrator shall, in accordance with industry standards, file a Form 15
Suspension Notification with respect to the Trust Fund, if applicable. Prior
to March 30, 2002, the Securities Administrator shall file a Form 10-K, in
substance conforming to industry standards, with respect to the Trust Fund.
The Depositor hereby grants to the Securities Administrator a limited power of
attorney to execute and file each such document on behalf of the Depositor.
Such power of attorney shall continue until either the earlier of (i) receipt
by the Securities Administrator from the Depositor of written termination of
such power of attorney and (ii) the termination of the Trust Fund. The
Depositor agrees to promptly furnish to the Securities Administrator, from
time to time upon request, such further information, reports, and financial
statements within its control related to this Agreement and the Mortgage Loans
as the Securities Administrator reasonably deems appropriate to prepare and
file all necessary reports with the Commission. The Securities Administrator
shall have no responsibility to file any items other than those specified in
this section.
ARTICLE VII.
PURCHASE AND TERMINATION
OF THE TRUST FUND AND EXERCISE OF CALL OPTIONS
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 Servicers created
hereby (other than the obligation of the Trustee to make payments to
Certificateholders as set forth in Section 7.02, the obligation of the Master
Servicer to make a final remittance to the Securities Administrator for
deposit into the Certificate Account pursuant to Section 4.01 and the
obligations of the Master Servicers to the Trustee pursuant to Sections 9.10
and 9.14), shall terminate on the final payment or other liquidation of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property; provided, however, that in no event shall the Trust Fund created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the
United States to the Court of St. James's, living on the date hereof. Any
termination of the Trust Fund shall be carried out in such a manner so that
the termination of each REMIC included therein shall qualify as a "qualified
liquidation" under the REMIC Provisions.
(b) On any Distribution Date occurring after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans in Pool 1, Pool 2
and Pool 3 (determined in the aggregate rather than by Pool) is less than 1%
of the Cut-off Date Balance of the Mortgage Loans in Pool 1, Pool 2 and Pool
3, the Group 1-3 Master Servicer 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 Securities
Administrator on behalf of 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 Group 1-3 Master Servicer with the
consent of the Trustee, and (iii) any unreimbursed Servicing Advances with
respect to each Mortgage Loan.
(c) On any Distribution Date occurring after the date on which the
aggregate Scheduled Principal Balance of the Mortgage Loans in Pool 4 is less
than 5% of the Cut-off Date Principal Balance of the Mortgage Loans in Pool 4,
the Group 4 Master Servicer may, upon written direction to the Trustee with a
copy to the Securities Administrator, purchase from the Trustee the Mortgage
Loans in Pool 4. The Mortgage Loans shall be sold at a price equal to: (i)
100% of the unpaid principal balance of each Mortgage Loan in Pool 4 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 related REO such fair market
value to be determined by an appraiser or appraisers appointed by the Group 4
Master Servicer with the consent of the Trustee and (iii) any unreimbursed
Servicing Advances with respect to each Mortgage Loan.
Section 7.02 Procedure Upon Termination of Trust Fund. (a) Notice of
any termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Securities Administrator by first class mail to
Certificateholders mailed 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 Securities
Administrator shall give such notice to the Trustee, the Master Servicers 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 Servicers to terminate, the Collection
Account, 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 Securities Administrator seeks
(at the request of a Master Servicer), and subsequently receives, an Opinion
of Counsel (at the expense of such Master Servicer), addressed to the
Securities Adminstrator 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.
Section 7.04 Exercise of Call Options.
(a) On any Distribution Date occurring on or after the Class 2-A1
Call Date, ▇▇▇▇▇▇ Pass-Through Securities Inc. ("LPTSI") shall have the
option, for so long as it is the holder of the Class 2-A2 Certificates, to
purchase all, but not less than all, of the Class 2-A1 Certificates remaining
outstanding (the "Class 2-A1 Call Option") for a price equal to the
outstanding Class Principal Amount of such Certificates plus interest accrued
thereon at the applicable Certificate Interest Rate and unpaid (the
"Acquisition Price"). In order to exercise such option, LPTSI must deliver to
the Securities Administrator written notice of its intent to purchase all of
the Class 2-A1 Certificates and of the Distribution Date on which it intends
to do so not less than 20 days prior to such Distribution Date.
(b) On any Distribution Date occurring on or after the Class 3-A1
Call Date, LPTSI shall have the option, for so long as it is the holder of the
Class 3-A2 Certificate, to purchase all, but not less than all, of the Class
3-A1 Certificates remaining outstanding (the "Class 3-A1 Call Option") for a
price equal to the related Acquisition Price. In order to exercise such
option, LPTSI must deliver to the Securities Administrator written notice of
its intent to purchase all of the Class 3-A1 Certificates and of the
Distribution Date on which it intends to do so not less than 20 days prior to
such Distribution Date.
(c) On or before the date of delivery of the notice specified in
paragraph (a) or (b) above, LPTSI shall deposit with the Securities
Administrator cash in an amount sufficient to provide for payment of the
related Acquisition Price. Such amount shall be remitted by the Securities
Administrator to Holders of Class 2-A1 Certificates or Class 3-A1
Certificates, as applicable, upon surrender for purchase as provided below.
(d) Notice of any purchase of the Class 2-A1 or Class 3-A1
Certificates pursuant to the provisions of this subsection, specifying the
Distribution Date upon which such purchase shall be made, shall be given
promptly by the Securities Administrator by first class mail to Holders of the
such Certificates mailed no later than five Business Days after the Securities
Administrator has received notice from LPTSI of its intent to exercise its
right to repurchase the Class 2-A1 or Class 3-A1 Certificates, as applicable.
Such notice shall specify (A) the Distribution Date upon which the related
Acquisition Price will be paid upon transfer of the Class 2-A1 Certificates or
Class 3-A1 Certificates, as the case may be (the "Acquisition Date"), and the
time and place at which any such Certificate held in definitive form by other
than the Clearing Agency (a "Definitive Purchase Certificate") must be
surrendered for cancellation and (B) that the Acquisition Price applicable to
each Class 2-A1 or Class 3-A1 Certificate, as applicable, constitutes payment
in full therefor, and that no further amounts in respect of interest or
principal will be distributable to the Holders from whom such Certificates are
purchased by LPTSI. The Securities Administrator shall give such notice to the
Master Servicer, the Securities Administrator and the Certificate Registrar at
the time such notice is given to Holders of the Certificates.
(e) On each Acquisition Date, the Securities Administrator shall (i)
make payment to each Holder of a Class 2-A1 or Class 3-A1 Certificate, as
applicable of the related Acquisition Price therefor in the manner in which
distributions are effected under this Agreement and (ii) effect the transfer
of each such Certificate (or interest therein) to LPTSI, which shall
thereafter (unless it transfers such Certificate in accordance with this
Agreement) be the Holder (or Certificate Owner) of such Certificate for all
purposes. Notwithstanding the foregoing, in the event that all of the Holders
of Definitive Purchase Certificates do not surrender their Certificates for
purchase at the time specified in the above-mentioned written notice, the
Securities Administrator shall give a second written notice to such remaining
Certificateholders to surrender their Certificates for purchase. If within ten
days after the second notice any Definitive Purchase Certificates shall not
have been surrendered for cancellation, the Securities Administrator 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. Subject to applicable law, the
Securities Administrator shall hold all amounts payable to such Holders for
the benefit of such Holders. No interest shall accrue on any amount held by
the Securities Administrator and not distributed to a Certificateholder due to
such Certificateholder's failure to surrender its Certificate(s) for payment
of the Acquisition Price thereon in accordance with this Section.
Notwithstanding that any Definitive Purchase Certificate has not been
surrendered after notice and deposit of the Acquisition Price as provided
above, on the Acquisition Date the Securities Administrator shall cancel such
Certificate and effect a transfer of such Certificate (or interest therein) to
LPTSI, which shall thereafter (unless it transfers such Certificate in
accordance with this Agreement) be the Holder (or Certificate Owner) of such
Certificate for all purposes.
Section 7.05 Optional Repurchase Right of ▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇▇ may
repurchase any Mortgage Loan in Pool 4 as to which the Mortgagor has requested
a Significant Modification and such borrower has a satisfactory payment
history under such Mortgage Loan and meets the credit standards of ▇▇▇▇▇▇▇▇▇
for the loan program selected (a "Significant Modification Loan"). A
"Significant Modification" shall mean any modification to the interest rate of
the greater of (i) .25% added or subtracted from the existing rate and (ii) a
change equal to the product of (a) 5% and (b) the annual existing interest
rate thereon. The purchase price for any repurchase pursuant to this Section
7.05 shall be 100% of the Scheduled Principal Balance of such Mortgage Loan
and accrued and unpaid interest thereon, plus the outstanding amount of any
Servicing Advances with respect to such Mortgage Loan. In order to exercise
its repurchase rights hereunder, ▇▇▇▇▇▇▇▇▇ shall deliver to the Group 4 Master
Servicer a certificate identifying the Mortgage Loan to be repurchased and
certifying that (i) such Mortgage Loan is a Significant Modification Loan, and
(ii) on the date of such repurchase, the Significant Modification will be
entered into.
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 related
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 Certificate Registrar,
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 Certificate Registrar shall, within
five Business Days after the receipt of such application, afford such
Applicants reasonable access during the normal business hours of the
Certificate Registrar to the most recent list of Certificateholders held by
the Certificate Registrar 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 Servicers, if made in the manner provided in this
Section. Each of the Trustee, the Securities Administrator, and the Master
Servicers 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 or the Securities Administrator,
as applicable, 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 Certificate Registrar, the Master Servicers, 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, the Certificate Registrar, the Paying Agent, the Securities
Administrator or the Master Servicers 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 SERVICERs
Section 9.01 Duties of the Master Servicers. The Holders of the Group
1, Group 2 and Group 3 Certificates, by their purchase and acceptance of such
Certificates, appoint Aurora Loan Services Inc., as Group 1-3 Master Servicer.
The Holders of the Group 4 Certificates, by their purchase and acceptance of
such Certificates, appoint Washington Mutual Mortgage Securities Corp., as
Group 4 Master Servicer. For and on behalf of the Depositor, the Trustee and
the applicable Certificateholders, each Master Servicer shall master service
the related 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) Each 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. Each 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) Each 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. Each 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 applicable Master Servicer shall promptly
furnish a copy of such report to the Trustee. Any amounts relating to the
Mortgage Loans collected by such Master Servicer under any such bond or policy
shall be promptly remitted by the Master Servicer to the Securities
Administrator 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 applicable Master Servicer to the extent provided in
the applicable Servicing Agreement.
Section 9.03 Master Servicer's Financial Statements and Related
Information. (a) For each year this Agreement is in effect, the Group 1-3
Master Servicer shall submit to the Trustee, each Rating Agency and the
Depositor a copy of its annual unaudited financial statements on or prior to
August 31 of each year. Such financial statements shall include a balance
sheet, income statement, statement of retained earnings, statement of
additional paid-in capital, statement of changes in financial position and all
related notes and schedules and shall be in comparative form, certified by a
nationally recognized firm of Independent Accountants to the effect that such
statements were examined and prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of the preceding
year.
(b) On or before April 30 of each year this Agreement is in effect,
beginning with the first April 30 succeeding the Cut-off Date by at least six
months, the Group 4 Master Servicer, at its expense, shall cause a firm of
independent public accountants to furnish a statement to the Trustee, the
Securities Administrator, S&P, ▇▇▇▇▇▇▇▇▇ and the Depositor to the effect that,
in connection with the firm's examination of the financial statements as of
the previous December 31 of the Master Servicer's parent corporation (which
shall include a limited examination of the Master Servicer's financial
statements), nothing came to their attention that indicated that the Master
Servicer was not in compliance with Section 4.01, Section 4.02, Section 4.03,
Section 9.04 and Section 9.25 of this Agreement, except for (i) such
exceptions as such firm believes to be immaterial, and (ii) such other
exceptions as are set forth in such statement.
Section 9.04 Power to Act; Procedures. (a) Each Master Servicer shall
master service the related Mortgage Loans and shall have full power and
authority, subject to the REMIC Provisions and the provisions of Article X
hereof, and each Servicer shall have full power and authority (to the extent
provided in the applicable Servicing Agreement) to do any and all things that
it may deem necessary or desirable in connection with the servicing and
administration of the Mortgage Loans, including but not limited to the power
and authority (i) to execute and deliver, on behalf of the Certificateholders
and the Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and applicable Servicing Agreement, as applicable; provided
that the Master Servicer shall not take, or knowingly permit any Servicer to
take, any action that is inconsistent with or prejudices the interests of the
Trust Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee and the Certificateholders under this
Agreement. Each Master Servicer further is authorized and empowered by the
Trustee, on behalf of the Certificateholders and the Trustee, in its own name
or in the name of any Servicer, when the Master Servicer or a Servicer, as the
case may be, believes it is appropriate in its best judgment to register any
Mortgage Loan with MERS, or cause the removal from the registration of any
Mortgage Loan on the MERS system, to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns. Each Master Servicer shall represent
and protect the interests of the Trust Fund in the same manner as it protects
its own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan and shall not make or
knowingly permit any Servicer to make any modification, waiver or amendment of
any term of any Mortgage Loan that would cause the Trust Fund to fail to
qualify as a REMIC or result in the imposition of any tax under Section
860F(a) or Section 860G(d) of the Code. Without limiting the generality of the
foregoing, each Master Servicer in its own name or in the name of a Servicer,
and each Servicer, to the extent such authority is delegated to such Servicer
by the Master Servicer under the applicable Servicing Agreement, is hereby
authorized and empowered by the Trustee when the Master Servicer or applicable
Servicer, as the case may be, believes it appropriate in its best judgment and
in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, to execute and deliver, on behalf of itself and the
Certificateholders, the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. The Trustee shall furnish each 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 a Master Servicer or any Servicer). If a 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, each 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, each
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, each 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 applicable 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, neither
Master Servicer shall, unless default by the related Mortgagor is, in the
reasonable judgment of the Master Servicer or the related Servicer, imminent,
make or knowingly permit such Servicer to make any modification, waiver or
amendment of any material term of any Mortgage Loan (including but not limited
to the interest rate, the principal balance, the amortization schedule, or any
other term affecting the amount or timing of payments on the Mortgage Loan or
the collateral therefor) unless the Master Servicer or the related Servicer
shall have provided or caused to be provided to the Securities Administrator
an Opinion of Counsel (at the expense of the party seeking the modification)
in writing to the effect that such modification, waiver or amendment would not
be treated as giving rise to a new debt instrument for federal income tax
purposes and would not adversely affect the status of the REMIC; provided,
however, that no Opinion of Counsel shall be required in connection with a
change in the Interest Rate pursuant to the terms of a Convertible Mortgage
Loan.
Section 9.05 Servicing Agreements Between each 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 a Master Servicer include such actions taken or to be taken by
a Servicer pursuant to a Servicing Agreement. Any fees, costs and expenses and
other amounts payable to such Servicers shall be deducted from amounts
remitted to each Master Servicer by the applicable Servicer and shall not be
an obligation of the Trust, the Trustee, the Securities Administrator or the
Master Servicer.
(b) The Group 1-3 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, upon its obtaining actual
knowledge of the failure of a Servicer to perform its obligations in
accordance with the related Servicing Agreement, to the extent that the
non-performance of any such obligations would have a material adverse effect
on a Mortgage Loan, the Trust Fund or Certificateholders, terminate the rights
and obligations of such Servicer thereunder to the extent and in the manner
permitted by the related Servicing Agreement and 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 each Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. Each
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.
(c) The Group 4 Master Servicer may perform its master servicing
responsibilities through agents or independent contractors, but shall not
thereby be released from any of its responsibilities hereunder and the Group 4
Master Servicer shall diligently pursue all of its rights against such agents
or independent contractors.
(d) In the event either Master Servicer, or any successor Master
Servicer, shall for any reason no longer be the Master Servicer (including by
reason of an Event of Default), the Securities Administrator or its designee
shall thereupon assume all of the rights and obligations of the Master
Servicer under the Servicing Agreements with respect to the related Mortgage
Loans unless the Securities Administrator elects to terminate the Servicing
Agreements with respect to such Mortgage Loans in accordance with the terms
thereof. The Securities Administrator, its designee or the successor servicer
shall be deemed to have assumed all of the Master Servicer's interest therein
with respect to the related Mortgage Loans and to have replaced the Master
Servicer as a party to the Servicing Agreements to the same extent as if the
rights and duties under the Servicing Agreements relating to such Mortgage
Loans had been assigned to the assuming party, except that the Master Servicer
shall not thereby be relieved of any liability or obligations under the
Servicing Agreements with respect to the Master Servicer's duties to be
performed prior to its termination hereunder.
Section 9.06 Collection of Taxes, Assessments and Similar Items. (a)
To the extent provided in the applicable Servicing Agreement, each Master
Servicer shall cause each Servicer to establish and maintain one or more
custodial accounts at a depository institution which with respect to Pool 1,
Pool 2 and Pool 3, may be a depository institution with which the Group 1-3
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, and with respect to Pool 4, may be (a) with the
corporate trust department of the Trustee or another financial institution
approved by the Group 4 Master Servicer such that the rights of such Master
Servicer, the Trustee and the Certificateholders thereto shall be fully
protected against the claims of any creditors of the applicable Servicer and
of any creditors or depositors of the institution in which such account is
maintained, (b) within FDIC insured accounts (or other accounts with
comparable insurance coverage acceptable to the Rating Agencies) created,
maintained and monitored by a Servicer or (c) in a separate non-trust account
without FDIC or other insurance in an institution having (i) the highest
short-term debt rating, and one of the two highest long-term debt ratings of
the Rating Agencies, (ii) the highest unsecured long-term debt rating by the
Rating Agencies, or (iii) the approval of the Rating Agencies. Such
institution may be the Servicer if the applicable Servicing Agreement requires
the Servicer to provide the Group 4 Master Servicer with written notice on the
Business Day following the date on which the Servicer determines that such
Servicer's short-term debt and unsecured long-term debt ratings fail to meet
the requirements of the prior sentence. In the event that an Escrow Account is
established pursuant to clause (b) of the preceding sentence, amounts held in
such Escrow Account shall not exceed the level of deposit insurance coverage
on such account; accordingly, more than one Escrow Account may be established.
Any amount that is at any time not protected or insured in accordance with the
first sentence of this paragraph shall promptly be withdrawn from such Escrow
Account and be remitted to the Collection Account (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. Each Master Servicer shall make (or cause the applicable Servicer to
make) 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 a 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 a Master Servicer pursuant to Section
4.02(v).
Section 9.07 Termination of Servicing Agreements; Successor
Servicers. (a) Each 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 a 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 a Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces. Each 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 Servicers Liable for Enforcement. Notwithstanding
any Servicing Agreement, each 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. Each 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. Each 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. Notwithstanding the foregoing, the Group
4 Master Servicer shall have primary responsibility for the servicing of the
Mortgage Loans.
Section 9.09 No Contractual Relationship Between Servicers and
Trustee or Depositor. Any Servicing Agreement that may be entered into and any
other transactions or services relating to the Mortgage Loans involving a
Servicer in its capacity as such and not as an originator shall be deemed to
be between such Servicer, the Seller or ▇▇▇▇▇▇▇▇▇, as applicable, and the
applicable Master Servicer, and except to the extent expressly provided
therein the Trustee, the Securities Administrator and the Depositor shall not
be deemed parties thereto and shall have no claims, rights, obligations,
duties or liabilities with respect to such Servicer except as set forth in
Section 9.10 hereof.
Section 9.10 Assumption of Servicing Agreement by Securities
Administrator. (a) In the event a Master Servicer shall for any reason no
longer be the Master Servicer (including by reason of any Event of Default
under this Agreement), the Securities Administrator 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
Securities Administrator, its designee or any successor master servicer
appointed by the Securities Administrator shall be deemed to have assumed all
of such Master Servicer's interest herein and therein to the same extent as if
such Servicing Agreement had been assigned to the assuming party, except that
the Master Servicer shall not thereby be relieved of any liability or
obligations of the Master Servicer under such Servicing Agreement accruing
prior to its replacement as Master Servicer, and shall be liable to the
Securities Administrator, and hereby agrees to indemnify and hold harmless the
Securities Administrator from and against all costs, damages, expenses and
liabilities (including reasonable attorneys' fees) incurred by the Securities
Administrator as a result of such liability or obligations of the Master
Servicer and in connection with the Securities Administrator's assumption (but
not its performance, except to the extent that costs or liability of the
Securities Administrator are created or increased as a result of negligent or
wrongful acts or omissions of the Master Servicer prior to its replacement as
Master Servicer) of the Master Servicer's obligations, duties or
responsibilities thereunder; provided that the Master Servicer shall not
indemnify or hold harmless the Securities Administrator against negligent or
willful misconduct of the Securities Administrator.
(b) The Master Servicer that has been terminated shall, upon request
of the Securities Administrator but at the expense of such Master Servicer,
deliver to the assuming party all documents and records relating to each
Servicing Agreement and the related Mortgage Loans and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of each Servicing Agreement to the assuming
party.
Section 9.11 "Due-on-Sale" Clauses; Assumption Agreements. (a) To the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, and to the extent that the
applicable Master Servicer has knowledge of the conveyance of a Mortgaged
Property, such Master Servicer shall use its reasonable best efforts to cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
(b) The related Master Servicer or the related Servicer, as the case
may be, shall be entitled to approve a request from a Mortgagor for the
granting of an easement thereon in favor of another Person or any alteration
or demolition of the related Mortgaged Property if it has determined,
exercising its good faith business judgment in the same manner as it would if
it were the owner of the related Mortgage Loan, that the security for, and the
timely and full collectability of, such Mortgage Loan would not be materially
adversely affected thereby. Any fee collected by the related Master Servicer
or the related Servicer for processing such a request will be retained by such
Master Servicer or such Servicer as additional servicing compensation.
Section 9.12 Release of Mortgage Files. (a) Upon (i) becoming aware
of the payment in full of any Mortgage Loan, (ii) the receipt by the Master
Servicer of a notification that payment in full has been or will be escrowed
in a manner customary for such purposes, or (iii) in the case of a Mortgage
Loan as to which the related Mortgaged Property is located in California,
receipt by the applicable Master Servicer of notification from the Servicer
that the Servicer reasonably expects that payment in full will be received
promptly, such Master Servicer will, or will cause the applicable Servicer to,
promptly notify the Trustee (or the applicable Custodian) by a certification
(which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment that are required
to be deposited in the Collection Account maintained by the Master Servicer
pursuant to Section 4.01 have been or will be so deposited) of a Servicing
Officer and shall request the Trustee or the applicable Custodian, to deliver
to the applicable Servicer the related Mortgage File. In lieu of sending a
hard copy certification of a Servicing Officer, the applicable Master Servicer
may, or may cause the Servicer to, deliver the request for release in a
mutually agreeable electronic format. To the extent that such a request, on
its face, originates from a Servicing Officer, no signature shall be required.
Upon receipt of such certification and request, the Trustee or the applicable
Custodian, shall promptly release the related Mortgage File to the applicable
Servicer and neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File. The applicable Master
Servicer is authorized, and each Servicer, to the extent such authority is
delegated to such Servicer by the applicable Master Servicer under the
applicable Servicing Agreement, is authorized, to give, as agent for the
Trustee, as the mortgagee under the Mortgage that secured the Mortgage Loan,
an instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument of
satisfaction or assignment, as the case may be, shall be delivered to the
Person or Persons entitled thereto against receipt therefor of such payment,
it being understood and agreed that no expenses incurred in connection with
such instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of, or other legal proceedings relating to, any Mortgage Loan and
in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such pleadings, request for trustee's
sale or other documents as shall be prepared and furnished to the Trustee by a
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 a Master Servicer, or of a
Servicer, and delivery to the Trustee or the applicable Custodian, of a trust
receipt signed by a Servicing Officer substantially in the form annexed hereto
as Exhibit C or in the form annexed to the applicable Custodial Agreement as
Exhibit C, release the related Mortgage File held in its possession or control
to the Master Servicer (or the applicable Servicer). Such trust receipt shall
obligate the applicable Master Servicer or applicable Servicer to return the
Mortgage File to the Trustee or Custodian, as applicable, when the need
therefor by the Master Servicer or applicable Servicer no longer exists unless
(i) the Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that herein above specified, the
trust receipt shall be released by the Trustee or the Custodian, as
applicable, to the applicable Master Servicer (or the applicable Servicer) or
(ii) the Mortgage File has been delivered directly or through a Servicer to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for
the foreclosure of the Mortgaged Property either judicially or non-judicially,
and the applicable Master Servicer has delivered directly or through a
Servicer to the Trustee a certificate of a Servicing Officer certifying as to
the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery.
Section 9.13 Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee. (a) The applicable Master Servicer shall
transmit, or cause the applicable Servicer to transmit, to the Trustee such
documents and instruments coming into the possession of such 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 a Master Servicer or by a
Servicer in respect of any Mortgage Loan or which otherwise are collected by a
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 a Master Servicer's right to retain or
withdraw from the Collection Account its the Master Servicing Fee and other
amounts provided in this Agreement, and to the right of each Servicer to
retain its Servicing Fee and other amounts as provided in the applicable
Servicing Agreement. Each 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 related Mortgage
Loans to the Trustee, the Securities Administrator, 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, insurance
companies or other regulated entities, 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, insurance or other
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 such 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, either 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 such
Master Servicer, or by such Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee; provided, however, that each 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 such 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) Each 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 a Master Servicer that are collected by
such Servicer or such Master Servicer in connection with the Mortgage Loans,
whether as scheduled installments of principal and interest or as full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which such
Servicer is entitled under the applicable Servicing Agreement, or such Master
Servicer or the Depositor is entitled to hereunder); and each 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, such Master Servicer or
any Servicer shall be held by such 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) Each 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 Servicers.
(a) Each Master Servicer hereby represents and warrants to the Depositor, the
Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is validly existing and in good standing under the
jurisdiction of its formation, and as Master Servicer has full power
and authority to transact any and all business contemplated by this
Agreement and to execute, deliver and comply with its obligations
under the terms of this Agreement, the execution, delivery and
performance of which have been duly authorized by all necessary
corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by such
Master Servicer and its performance and compliance with the terms of
this Agreement will not (A) violate such 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 such
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 such 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 such 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) such 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) such 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 such Master Servicer of its obligations under this Agreement;
(vi) no litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement;
(vii) such 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 such Master Servicer of or compliance by
such 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 such Master
Servicer; and
(x) such 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. Each 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 such Master Servicer's representations and warranties
contained in Section 9.14(a). Notwithstanding anything in this Agreement to
the contrary, neither Master Servicer, shall 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 each Master Servicer set forth in this Section to indemnify
the Depositor, the Trustee and the Securities Administrator as provided in
this Section constitutes the sole remedy (other than as set forth in Section
6.14) of the Depositor, the Securities Administrator and the Trustee,
respecting a breach of the foregoing representations and warranties. Such
indemnification shall survive any termination of a Master Servicer as Master
Servicer hereunder, and any termination of this Agreement.
Any cause of action against a Master Servicer relating to or arising
out of the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by either the Depositor, the Master
Servicer or the Trustee or notice thereof by any one of such parties to the
other parties.
(c) It is understood and agreed that the representations and
warranties of the Depositor set forth in Sections 2.03(a) through (f) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Master Servicers and hold then 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
Servicers as provided in this Section constitutes the sole remedy of the
Master Servicers 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 a 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, each Master Servicer shall cause to be delivered to the
Depositor, the Trustee, the Securities Administrator 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 such Master
Servicer and the enforceability thereof.
Section 9.16 Standard Hazard and Flood Insurance Policies. For each
Mortgage Loan (other than a Cooperative Loan), the applicable 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 a Master Servicer,
or by any Servicer, under any insurance policies maintained pursuant to this
Section 9.16 (other than amounts to be applied to the restoration or repair of
the property subject to the related Mortgage or released to the Mortgagor in
accordance with the Master Servicer's or the Servicer's normal servicing
procedures and Accepted Servicing Practices) shall be deposited into the
Collection Account, subject to withdrawal pursuant to Section 4.02. Any cost
incurred by a 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 such Master Servicer or
such Servicer pursuant to Section 4.02(v).
Section 9.17 Presentment of Claims and Collection of Proceeds. Each
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 a Master Servicer (or disbursed to a Servicer and remitted to a
Master Servicer) in respect of such policies or bonds shall be promptly
deposited in the Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the Master
Servicer's or the Servicer's normal servicing procedures need not be so
deposited (or remitted).
Section 9.18 Maintenance of the Primary Mortgage Insurance Policies.
(a) Neither Master Servicer shall take, or knowingly permit any Servicer
(consistent with the applicable Servicing Agreement) to take, any action that
would result in non-coverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of such Master Servicer or
Servicer, would have been covered thereunder. To the extent that coverage is
available, each 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 Servicers shall not, and shall not permit
any Servicer to, cancel or refuse to renew any such Primary Mortgage Insurance
Policy that is in effect at the date of the initial issuance of the
Certificates and is required to be kept in force hereunder except as required
by applicable law or in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable; provided, however, that the
Primary Mortgage Insurance Policy for each Mortgage Loan, for purposes of this
Section 9.18, be deemed to have been originated after July 29, 1999.
(b) Each 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 a 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 a 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 related Mortgage File in accordance with
and subject to the terms and conditions of this Agreement. Each 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. Each Master
Servicer shall use its reasonable best efforts to, or to cause each Servicer
to, foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, all in accordance with the applicable
Servicing Agreement. Alternatively, a Master Servicer may take, or authorize
any Servicer to take, other actions in respect of a defaulted Mortgage Loan,
which may include (i) accepting a short sale (a payoff of the Mortgage Loan
for an amount less than the total amount contractually owed in order to
facilitate a sale of the Mortgaged Property by the Mortgagor) or permitting a
short refinancing (a payoff of the Mortgage Loan for an amount less than the
total amount contractually owed in order to facilitate refinancing
transactions by the Mortgagor not involving a sale of the Mortgaged Property),
(ii) arranging for a repayment plan or (iii) agreeing to a modification in
accordance with Section 9.04. In connection with such foreclosure or other
conversion or action, the Master Servicer shall, consistent with Section 9.18,
follow such practices and procedures as it shall reasonably determine to be in
the best interests of the Trust Fund and the Certificateholders and which
shall be consistent with its customary practices in performing its general
mortgage servicing activities; provided that the Master Servicer shall not be
liable in any respect hereunder if the Master Servicer is acting in connection
with any such foreclosure or other conversion or action in a manner that is
consistent with the provisions of this Agreement. Neither Master Servicer, nor
any Servicer, shall be required to expend its own funds or incur other
reimbursable charges in connection with any foreclosure, or attempted
foreclosure which is not completed, or toward the correction of any default on
a related senior mortgage loan, or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to the
Certificateholders after reimbursement to itself for such expenses or charges
and (ii) that such expenses and charges will be recoverable to it through
Liquidation Proceeds or Insurance Proceeds (as provided in Section 4.02).
Section 9.21 Compensation to the Master Servicers. Each Master
Servicer shall be entitled, at its election, either (a) to pay itself the
applicable Master Servicing Fee, as reduced pursuant to Section 5.05, in
respect of the Mortgage Loans out of any Mortgagor payment on account of
interest prior to the deposit of such payment in the Collection Account it
maintains or (b) to withdraw from the related Collection Account, subject to
Section 5.05, the Master Servicing Fee to the extent permitted by Section
4.02(iv). Each Master Servicer shall also be entitled, at its election, either
(x) to pay itself the applicable Master Servicing Fee in respect of each
delinquent Mortgage Loan master serviced by it out of Liquidation Proceeds in
respect of such Mortgage Loan or other recoveries with respect thereto to the
extent permitted in Section 4.02 or (y) to withdraw from the Collection
Account it maintains the applicable Master Servicing Fee in respect of each
Liquidated Mortgage Loan to the extent of such Liquidation Proceeds or other
recoveries, to the extent permitted by Section 4.02(iv). 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 applicable Collection Account. If a Master
Servicer does not retain or withdraw the Master Servicing Fee from the
Collection Account as provided herein, such Master Servicer shall be entitled
to direct the Securities Administrator to pay the Master Servicing Fee to such
Master Servicer by withdrawal from the Certificate Account. Each 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 each Collection
Account shall be for the benefit of the applicable 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. Each 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, each
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) Each 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) Each 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 related 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 related 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 related 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 related 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 Securities Administrator for deposit into the Certificate Account
on the next succeeding Master Servicer Remittance Date.
Section 9.23 [Omitted]
Section 9.24 Reports to the Securities Administrator. (a) Not later
than 30 days after each Distribution Date, each Master Servicer shall forward
to the Securities Administrator 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 Servicers to the Depositor, Attention: Contract Finance, and,
upon request, any Certificateholders (or by the Securities Administrator at
such Master Servicer's expense if such Master Servicer shall fail to provide
such copies (unless (i) the Master Servicer shall have failed to provide the
Securities Administrator with such statement or (ii) the Securities
Administrator shall be unaware of the Master Servicer's failure to provide
such statement)).
(b) Not later than two Business Days following each Distribution
Date, each Master Servicer shall deliver to the Person designated by the
Depositor, in a format consistent with other electronic loan level reporting
supplied by such 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
such Master Servicer by the Servicers or by the Depositor.
Section 9.25 Annual Officer's Certificate as to Compliance. (a) The
Group 1-3 Master Servicer shall deliver to the Trustee, the Securities
Administrator and the Rating Agencies on or before August 31 of each year,
commencing on August 31, 2002, an Officer's Certificate, certifying that with
respect to the period ending on the immediately preceding December 31; (i)
such Servicing Officer has reviewed the activities of such Master Servicer
during the preceding calendar year or portion thereof and its performance
under this Agreement; (ii) to the best of such Servicing Officer's knowledge,
based on such review, such Master Servicer has performed and fulfilled its
duties, responsibilities and obligations under this Agreement in all material
respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying
each such default known to such Servicing Officer and the nature and status
thereof, (iii) nothing has come to the attention of such Servicing Officer to
lead such Servicing Officer to believe that any Servicer has failed to perform
any of its duties, responsibilities and obligations under its Servicing
Agreement in all material respects throughout such year, or, if there has been
a material default in the performance or fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof, and (iv) such 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 such Master Servicer, such
Master Servicer is using its best reasonable efforts to obtain such
certificate or report.
(b) The Group 4 Master Servicer shall deliver to the Trustee and the
Securities Administrator, on or before April 30 of each year, beginning with
the first April 30 succeeding the Cut-Off Date by at least six months, an
Officer's Certificate stating as to the signer thereof, that (i) a review of
the activities of the Master Servicer during the preceding calendar year and
performance under this Agreement has been made under such officer's
supervision, and (ii) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
(c) Copies of such statements shall be provided to the
Certificateholders relating to Group 4 and any other Certificateholder upon
request, by a Master Servicer or by the Securities Administrator at a Master
Servicer's expense if such Master Servicer failed to provide such copies
(unless (i) such Master Servicer shall have failed to provide the Securities
Administrator with such statement or (ii) the Securities Administrator shall
be unaware of such Master Servicer's failure to provide such statement).
Section 9.26 Annual Independent Accountants' Servicing Report. If a
Master Servicer has, during the course of any fiscal year, directly serviced
any of the Mortgage Loans, then such Master Servicer at its expense shall
cause a nationally recognized firm of independent certified public accountants
to furnish a statement to the Trustee, the Securities Administrator, the
Rating Agencies and the Depositor on or before August 31 of each year,
commencing on August 31, 2002, to the effect that, with respect to the most
recently ended fiscal year, such firm has examined certain records and
documents relating to the Master Servicer's performance of its servicing
obligations under this Agreement and pooling and servicing and trust
agreements in material respects similar to this Agreement and to each other
and that, on the basis of such examination conducted substantially in
compliance with the audit program for mortgages serviced for FHLMC or the
Uniform Single Attestation Program for Mortgage Bankers, such firm is of the
opinion that the Master Servicer's activities have been conducted in
compliance with this Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages Serviced by
FHLMC requires it to report. Copies of such statements shall be provided to
the Certificateholders relating to Group 4 and any other Certificateholder
upon request by such Master Servicer, or by the Securities Administrator at
the expense of such Master Servicer if such Master Servicer shall fail to
provide such copies. If such report discloses exceptions that are material,
the applicable Master Servicer shall advise the Trustee and the Securities
Administrator whether such exceptions have been or are susceptible of cure,
and will take prompt action to do so.
Notwithstanding the first paragraph of this Section 9.26, in lieu of
the requirements set forth therein, while Washington Mutual Mortgage
Securities Corp. is Master Servicer of the Pool 4 Mortgage Loans, on or before
April 30 of each year, beginning with April 30, 2001, such Master Servicer, at
its expense, shall cause a firm of independent public accountants to furnish a
statement to the Trustee, the Securities Administrator, the Depositor and the
Rating Agencies to the effect that on the basis of the examination by such
firm conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Guide for Audits of HUD Approved
Title II Nonsupervised Mortgagees and Loan Correspondents Program, the
servicing by or on behalf of such Master Servicer of the Mortgage Loans was
conducted in compliance with this Agreement, except for any significant
exceptions or errors in records that, in the opinion of the firm, the Uniform
Single Attestation Program for Mortgage Bankers or the Audit Guide for Audits
of HUD Approved Title II Nonsupervised Mortgagees and Loan Correspondents
Program requires it to report. Copies of the annual accountants' statement and
the officer's statement shall be provided to the Certificateholders relating
to Group 4 without charge upon written request to the Master Servicer.
Section 9.27 Merger or Consolidation. Any Person into which a Master
Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which a Master
Servicer shall be a party, or any Person succeeding to the business of a
Master Servicer, shall be the successor to such 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 Group 1-3
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, no Master Servicer shall resign
from the obligations and duties hereby imposed on it unless it or the Trustee
determines that such 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 a Master Servicer shall
be evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee and the Securities Administrator. No such resignation
shall become effective until the Securities Administrator shall have assumed,
or a successor master servicer shall have been appointed by the Securities
Administrator and until such successor shall have assumed, such 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 a Master Servicer.
Except as expressly provided herein, no Master Servicer shall assign or
transfer any of its rights, benefits or privileges hereunder to any other
Person Except as expressly provided herein, a Master Servicer may 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 such Master
Servicer hereunder; provided, however, that a Master Servicer shall have the
right without the prior written consent of the Trustee, the Depositor or the
Rating Agencies to assign to 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 a Master Servicer
relieve the Master Servicer of any liability hereunder. Notice of such
permitted assignment shall be given promptly by a Master Servicer to the
Depositor and the Trustee. If, pursuant to any provision hereof, the duties of
a Master Servicer are transferred to a successor master servicer, the entire
amount of the Master Servicing Fees and other compensation payable to such
Master Servicer pursuant hereto, including amounts payable to or permitted to
be retained or withdrawn by such Master Servicer pursuant to Section 9.21
hereof, shall thereafter be payable to such successor master servicer.
Section 9.30 Limitation on Liability of a Master Servicer and Others.
Neither a Master Servicer nor any of the directors, officers, employees or
agents of a 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 a 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. Each Master Servicer and any
director, officer, employee or agent of a Master Servicer shall be entitled to
indemnification by the Trust Fund and will be held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Certificates other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of his or its duties hereunder or by reason of reckless disregard
of his or its obligations and duties hereunder. Each Master Servicer and any
director, officer, employee or agent of a 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. Neither Master
Servicer shall be under any 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 a 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 a 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. Each 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 such Master Servicer to perform its duties and master service the
applicable Mortgage Loans in compliance with the terms of this Agreement. The
Depositor, the Securities Administrator and the Trustee shall promptly notify
the applicable 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 such 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 Securities Administrator on behalf of 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
Securities Administrator shall make such elections on Forms 1066 or other
appropriate federal tax or information return for the taxable year ending on
the last day of the calendar year in which the Certificates are issued. For
the purposes of such elections, each of the Lower Tier Interests, other than
the Class LT-R Interest, is hereby designated as a regular interest in the
Lower Tier REMIC, and each Certificate, other than the Class R Certificate, is
hereby designated as a regular interest in the Upper Tier REMIC. The Class
LT-R Interest is hereby designated as the sole residual interest in the Lower
Tier REMIC. The Class R Certificate evidences ownership of the Class LT-R
Interest and is also hereby designated as the sole residual interest in the
Upper Tier REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 86OG(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.86OG-1(a)(4) will
be the Latest Possible Maturity Date.
(c) The Securities Administrator shall pay any and all tax related
expenses (not including taxes) of each REMIC, including but not limited to any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC that involve the Internal
Revenue Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Securities Administrator in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Depositor shall represent the Trust Fund in any proceedings relating to
the Internal Revenue Service or state tax authorities. 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 or its designee shall perform on
behalf of each REMIC all reporting and other tax compliance duties that are
the responsibility of such REMIC under the Code, the REMIC Provisions, or
other compliance guidance issued by the Internal Revenue Service or any state
or local taxing authority. Among its other duties, if required by the Code,
the REMIC Provisions, or other such guidance, the 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 Certificateholders such information or reports as are required
by the Code or REMIC Provisions.
(f) The Trustee, the Securities Administrator, the Master Servicers
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 Servicers 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 Servicers 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 Servicers, 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 Servicers
have advised it in writing that an Adverse REMIC Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in such REMIC or, if no such amounts are available, out
of other amounts held in the Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in such REMIC, as the case
may be.
(h) The Securities Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC on a calendar
year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither the Securities Administrator nor a 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 Securities
Administrator shall deliver to such Rating Agency an Officer's Certificate
stating its compliance with the provisions of this Section 10.01 applicable to
it.
Section 10.02 Prohibited Transactions and Activities. Neither the
Depositor, the Master Servicers 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, (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, or (vii) the
exercise of the Class 2-A1 Call Option or the Class 3-A1 Call Option, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the Certificate Account for gain, nor accept any contributions to the REMIC
after the Closing Date, unless it has received an Opinion of Counsel (at the
expense of the party causing such sale, disposition, or substitution) that
such disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of such REMIC as a REMIC or of the Certificates other
than the Residual Certificates as the regular interests therein, (b) affect
the distribution of interest or principal on the Certificates, (c) result in
the encumbrance of the assets transferred or assigned to the Trust Fund
(except pursuant to the provisions of this Agreement) or (d) cause such REMIC
to be subject to a tax on prohibited transactions or prohibited contributions
pursuant to the REMIC Provisions.
Section 10.03 Indemnification with Respect to Certain Taxes and Loss
of REMIC Status. (a) In the event that a REMIC fails to qualify as a REMIC,
loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Trustee or the Securities
Administrator, as applicable, of its duties and obligations set forth herein,
the Trustee or the Securities Administrator, as applicable, shall indemnify
the Holder of the Residual Certificate against any and all losses, claims,
damages, liabilities or expenses ("Losses") resulting from such negligence;
provided, however, that neither the Trustee nor the Securities Administrator,
as applicable, shall be liable for any such Losses attributable to the action
or inaction of a Master Servicer, the Depositor, or the Holder of such
Residual Certificate, as applicable, or for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which
the Trustee or the Securities Administrator, as applicable, has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holder of such Residual Certificate now or hereafter existing at law or in
equity. Notwithstanding the foregoing, however, in no event shall the Trustee
or the Securities Administrator, as applicable, have any liability (1) for any
action or omission that is taken in accordance with and in compliance with the
express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent
performance by the Trustee or the Securities Administrator of, as applicable,
its duties and obligations set forth herein, and (3) for any special or
consequential damages to Certificateholders (in addition to payment of
principal and interest on the Certificates). In addition, neither the Trustee
nor the Securities Administrator shall have any liability for the actions or
failure to act of the other.
Section 10.04 REO Property. (a) Notwithstanding any other provision
of this Agreement, the Master Servicer, acting on behalf of the Trustee
hereunder, shall not (except to the extent provided in the applicable
Servicing Agreement) permit any Servicer to, rent, lease, or otherwise earn
income on behalf of any REMIC with respect to any REO Property which might
cause such REO Property to fail to qualify as "foreclosure" property within
the meaning of section 860G(a)(8) of the Code or result in the receipt by any
REMIC of any "income from non-permitted assets" within the meaning of section
860F(a)(2) of the Code or any "net income from foreclosure property" which is
subject to tax under the REMIC Provisions unless the applicable 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 applicable 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 applicable 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 Securities Administrator on behalf of 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 Securities
Administrator on behalf of the Trustee has received such an extension, then
(a) the Securities Administrator shall provide a copy of such extension to the
applicable Master Servicer and the Trustee and (b) the Securities
Administrator on behalf of the Trustee, or the applicable Master Servicer,
acting on behalf of the Trustee 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 Securities Administrator on behalf of
the Trustee has not received such an extension and the Securities
Administrator, or the applicable 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
Securities Administrator on behalf of the Trustee has received such an
extension, and the Securities Administrator, or the applicable 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 applicable 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.
Section 10.05 Class B4 Special Hazard Obligation. (a) The Trustee
shall treat the obligations of the Class B4-I Certificates and Class B4-II
Certificates to make payments in respect of Special Hazard Losses incurred by
Pool 4 and Pools 1, 2 and 3, respectively, as contractual obligations separate
from the rights of the Class B4-I Certificates and Class B4-II Certificates to
receive payments in respect of their related REMIC regular interests. The
Class B4-I Certificates will be considered to have received any required
payments from the Upper Tier REMIC corresponding to Pool 1,2, and 3 and to
have made such payments to the Pool 4 pursuant to such outside obligation, and
the Class B4-II Certificates will be considered to have received any required
payments from the Upper Tier REMIC corresponding to Pool 4 and to have made
such payments to the Pools 1, 2 and 3 pursuant to such outside obligation.
(b) The deemed payment to the Class B4-I Certificate, and the Class
B4-II Certificate shall be $100 and $100, respectively.
Section 10.06 The Class 2-A1 Call Option and Class 3-A1 Call Option.
(a) The Trustee shall treat any premium received by the Class 2-A1
Certificates and Class 3-A1 Call Certificates under the Class 2-A1 Call Option
and Class 3-A1 Call Option, respectively, as contractual obligations separate
from the rights of the Class 2-A1 Certificates and Class 3-A1 Certificates to
receive payments in respect of their related REMIC regular interests.
(b) The deemed payment to the Class B4-I Certificate, and the Class
B4-II Certificate shall be $100 and $100, respectively.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.01 Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 11.02 Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03 Amendment. (a) This Agreement may be amended from time
to time by the Depositor, the Master Servicers, the Securities Administrator
and the Trustee, without notice to or the consent of any of the Holders, (i)
to cure any ambiguity, (ii) to cause the provisions herein to conform to or be
consistent with or in furtherance of the statements made with respect to the
Certificates, the Trust Fund or this Agreement in any Offering Document; or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to make any other provisions with respect to
matters or questions arising under this Agreement or (iv) to add, delete, or
amend any provisions to the extent necessary or desirable to comply with any
requirements imposed by the Code and the REMIC Provisions. No such amendment
effected pursuant to the preceding sentence shall, as evidenced by an Opinion
of Counsel, adversely affect the status of any REMIC created pursuant to this
Agreement, nor shall such amendment effected pursuant to clause (iii) of such
sentence adversely affect in any material respect the interests of any Holder.
Prior to entering into any amendment without the consent of Holders pursuant
to this paragraph, the Trustee and the Securities Administrator shall be
provided with 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 and the Securities Administrator
receives written confirmation from each Rating Agency that such amendment will
not cause such Rating Agency to reduce, qualify or withdraw the then current
rating assigned to the Certificates (and any Opinion of Counsel required by
the Trustee and the Securities Administrator in connection with any such
amendment may rely expressly on such confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
Depositor, the Securities Administrator, the Master Servicers 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 receive 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
Securities Administrator 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, a 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, a Master Servicers, the Securities
Administrator, the Trustee or any Servicer or Affiliates thereof.
Section 11.05 Provision of Information. (a) For so long as any of the
Certificates of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Depositor and the Trustee
agree to cooperate with each other to provide to any Certificateholders and to
any prospective purchaser of Certificates designated by such
Certificateholder, upon the request of such Certificateholder or prospective
purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
or the Securities Administrator, in providing such information shall be
reimbursed by the Depositor.
(b) The Securities Administrator will provide to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, (i) a copy (excluding exhibits) of any report
on Form 8-K or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 6.20(c) and (ii) a copy of any other document incorporated
by reference in the Prospectus. Any reasonable out-of-pocket expenses incurred
by the Securities Administrator in providing copies of such documents shall be
reimbursed by the Depositor.
(c) On each Distribution Date, the Securities Administrator shall
deliver or cause to be delivered by first class mail to the Depositor,
Attention: Contract Finance, a copy of the report delivered to
Certificateholders pursuant to Section 4.03.
Section 11.06 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered to such party at the relevant address, facsimile number or
electronic mail address set forth below (or at such other address, facsimile
number or electronic mail address as such party may designate from time to
time by written notice in accordance with this Section 11.07): (a) in the case
of the Depositor, Structured Asset Securities Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Finance, (b) in the
case of the Trustee, Bank One, National Association, ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Global Corporate Trust
Services, (c) in the case of the Group 1-3 Master Servicer, Aurora Loan
Services Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
Attention: Master Servicing, (d) in the case of the Group 4 Master Servicer,
Washington Mutual Mortgage Securities Corp., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Master Servicing - Compliance/SASCO 2001-8A, with
a copy to Washington Mutual Mortgage Securities Corp., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attn: WMMSC/SASCO 2001-8A, and (e) in the
case of the Securities Administrator, The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Institutional
Trust Services/SASCO 2001-8 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 applicable Rating Agencies of the
occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any Assignment by a 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 a Master Servicer
pursuant to Section 6.14 and any resignation of a 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 S&P, to:
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Mortgage Surveillance
If to Fitch, to:
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Residential Mortgage Surveillance
(c) The Securities Administrator shall provide or make available to
the Rating Agencies reports prepared pursuant to Section 4.03. In addition,
the Securities Administrator shall, at the expense of the Trust Fund, make
available to each Rating Agency such information as such Rating Agency may
reasonably request regarding the Certificates or the Trust Fund, to the extent
that such information is reasonably available to the Securities Administrator.
Section 11.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
Section 11.14 Transfer of Servicing. The Seller agrees that it shall
provide written notice to the Securities Administrator and the Master
Servicers 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 it shall not be required to provide prior notice of any transfer
of servicing that occurs within three months following the Closing Date to an
entity that is a Servicer on the Closing Date. In addition, the ability of the
Seller to transfer or assign its rights and delegate its duties under any
Servicing Agreement or to transfer the servicing thereunder to a successor
servicer shall be subject to the following conditions:
(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 applicable Master Servicer an agreement, in form and
substance reasonably satisfactory to the Trustee and such Master
Servicer, that contains an assumption by such successor servicer of
the due and punctual performance and observance of each covenant and
condition to be performed and observed by the applicable Servicer
under the applicable Servicing Agreement or, in the case of a
transfer of servicing to a party that is already a Servicer pursuant
to this Agreement, an agreement to add the related Mortgage Loans to
the Servicing Agreement already in effect with such Servicer;
(iv) If the successor servicer is not a Servicer of Mortgage
Loans at the time of transfer, there must be delivered to the
Trustee a letter from each Rating Agency to the effect that such
transfer of servicing will not result in a qualification, withdrawal
or downgrade of the then-current rating of any of the Certificates
(v) The 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 Master Servicer Remittance Date, to the
applicable Master Servicer, all funds held by the applicable
Servicer in respect of the Mortgage Loans; (E) on or prior to the
effective date of such transfer of servicing, the Seller shall cause
the prior Servicer to, after the effective date of the transfer of
servicing to the successor servicer, continue to forward to such
successor servicer, within one Business Day of receipt, the amount
of any payments or other recoveries received by the prior Servicer,
and to notify the successor servicer of the source and proper
application of each such payment or recovery; and (F) the Seller
shall cause the prior Servicer to, after the effective date of
transfer of servicing to the successor servicer, continue to
cooperate with the successor servicer to facilitate such transfer in
such manner and to such extent as the successor servicer may
reasonably request.
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
THE CHASE MANHATTAN BANK,
as Securities Administrator
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
AURORA LOAN SERVICES INC.,
as Master Servicer
By:/s/ E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP.,
as Master Servicer
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
Solely for purposes of Section 11.14,
accepted and agreed to by:
▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
Solely for purposes of Sections 2.05 and 7.05, accepted and agreed to by:
▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT B-1
FORM OF TRUSTEE INITIAL CERTIFICATION
[Date]
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: Trust Agreement, dated as of May 1, 2001, (the "Trust
Agreement"), among Structured Asset Securities Corporation, as
Depositor, The Chase Manhattan Bank, as Securities
Administrator, Aurora Loan Services Inc. and Washington Mutual
Mortgage Securities Corp., as Master Servicers and Bank One,
National Association, as Trustee, with respect to Structured
Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2001-8A
---------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.01(a) of the Trust Agreement, subject to
review of the contents thereof, the undersigned, as Trustee, hereby certifies
that it has received the documents listed in Section 2.01(b) of the Trust
Agreement for each Mortgage File pertaining to each Mortgage Loan listed on
Schedule A, to the Trust Agreement.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Trust
Agreement. This Certificate is subject in all respects to the terms of Section
2.02 of the Trust Agreement and the Trust Agreement sections cross-referenced
therein.
[ ],
as Custodian
By: ________________________
Name:
Title:
EXHIBIT B-2
FORM OF TRUSTEE INTERIM CERTIFICATION
[Date]
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: Trust Agreement, dated as of May 1, 2001, (the "Trust
Agreement"), among Structured Asset Securities Corporation, as
Depositor, The Chase Manhattan Bank, as Securities
Administrator, Aurora Loan Services Inc. and Washington Mutual
Mortgage Securities Corp., as Master Servicers and Bank One,
National Association, as Trustee, with respect to Structured
Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2001-8A
---------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attachment hereto) it has received:
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the
Trustee;
(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 undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on the attachment hereto, it has reviewed the documents listed above and has
determined that each such document appears regular on its face and appears to
relate to the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement including, but
not limited to, Section 2.02(b).
[ ],
as Custodian
By:_______________________________
Name:
Title:
EXHIBIT B-3
FORM OF TRUSTEE FINAL CERTIFICATION
[Date]
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Trust Agreement, dated as of May 1, 2001, (the "Trust
Agreement"), among Structured Asset Securities Corporation, as
Depositor, The Chase Manhattan Bank, as Securities
Administrator, Aurora Loan Services Inc. and Washington Mutual
Mortgage Securities Corp., as Master Servicers and Bank One,
National Association, as Trustee, with respect to Structured
Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2001-8A
----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Trust Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attachment hereto) it has received the applicable documents
listed in Section 2.02(b) of the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on the attachment hereto, it has reviewed the documents listed above and has
determined that each such document appears to be complete and, based on an
examination of such documents, the information set forth in the Mortgage Loan
Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement.
[ ],
as Custodian
By:_______________________________
Name:
Title:
EXHIBIT B-4
FORM OF ENDORSEMENT
Pay to the order of Bank One, National Association, as Trustee for
the SASCO 2001-8A Trust without recourse.
--------------------------------------
[current signatory on note]
By:___________________________________
Name:
Title:
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of May 1, 2001 among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
Inc. and Washington Mutual Mortgage Securities Corp., as Master Servicers, The
Chase Manhattan Bank, as Securities Administrator and you, as Trustee (the
"Trust Agreement"), the undersigned Master Servicer hereby requests a release
of the Mortgage File held by you as Trustee with respect to the following
described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Master Servicer hereby certifies
that all amounts received in connection with the loan have been or will be
credited to the Collection Account or the Certificate Account (whichever is
applicable) pursuant to the Trust Agreement.)
2. The Mortgage Loan is being foreclosed.
3. Mortgage Loan substituted. (The Master Servicer hereby certifies
that a Qualifying Substitute Mortgage Loan has been assigned and delivered to
you along with the related Mortgage File pursuant to the Trust Agreement.)
4. Mortgage Loan repurchased. (The Master Servicer hereby certifies
that the Purchase Price has been credited to the Collection Account or the
Certificate Account (whichever is applicable) pursuant to the Trust
Agreement.)
5. Other. (Describe)
6. California Mortgage Loan expected to be paid in full.
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Trust
Agreement and will be returned to you within ten (10) days of our receipt of
the Mortgage File, except if the Mortgage Loan has been paid in full, or
repurchased or substituted for a Qualifying Substitute Mortgage Loan (in which
case the Mortgage File will be retained by us permanently) and except if the
Mortgage Loan is being foreclosed or is a California Mortgage Loan specified
in #6 above (in which case the Mortgage File will be returned when no longer
required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Trust Agreement.
-------------------------------------
[Name of Master Servicer]
By:__________________________________
Name:
Title: Servicing Officer
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn,
deposes and says:
1. That he [she] is [title of officer] ________________________ of
[name of Purchaser] _________________________________________ (the
"Purchaser"), a _______________________ [description of type of entity] duly
organized and existing under the laws of the [State of __________] [United
States], on behalf of which he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is
______________.
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code") and will not be a "disqualified organization" as of
__________________ [date of transfer], and that the Purchaser is not acquiring
a Residual Certificate (as defined in the Agreement) for the account of, or as
agent (including a broker, nominee, or other middleman) for, any person or
entity from which it has not received an affidavit substantially in the form
of this affidavit. For these purposes, a "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of
any of the foregoing (other than an instrumentality if all of its activities
are subject to tax and a majority of its board of directors is not selected by
such governmental entity), any cooperative organization furnishing electric
energy or providing telephone service to persons in rural areas as described
in Code Section 1381(a)(2)(C), any "electing large partnership" within the
meaning of Section 775 of the Code, or any organization (other than a farmers'
cooperative described in Code Section 521) that is exempt from federal income
tax unless such organization is subject to the tax on unrelated business
income imposed by Code Section 511.
4. That the Purchaser either (x) is not, and on __________________
[date of transfer] will not be, an employee benefit plan subject to Section
406 or Section 407 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Code, the trustee of any such plan
or a person acting on behalf of any such plan or investing the assets of any
such plan to acquire a Residual Certificate; (y) is an insurance company that
is purchasing the Certificate with funds contained in an "insurance company
general account" as defined in Section V(e) of Prohibited Transaction Class
Exemption ("PTCE") 95-60 and the purchase and holding of the Certificate are
covered under Section I and III of PTCE 95-60; or (z) herewith delivers to the
Securities Administrator and shall deliver to the Depositor an opinion of
counsel (a "Benefit Plan Opinion") satisfactory to the Securities
Administrator and the Depositor, and upon which the Securities Administrator
and the Depositor shall be entitled to rely, to the effect that the purchase
or holding of such Residual Certificate by the Investor will not result in the
assets of the Trust Fund being deemed to be plan assets and subject to the
prohibited transaction provisions of ERISA or the Code and will not subject
the Trustee, the Securities Administrator or the Depositor to any obligation
in addition to those undertaken by such entities in the Trust Agreement, which
opinion of counsel shall not be an expense of the Trustee, the Securities
Administrator or the Depositor.
5. That the Purchaser hereby acknowledges that under the terms of the
Trust Agreement (the "Agreement") among Structured Asset Securities
Corporation, The Chase Manhattan Bank, as Securities Administrator, Bank One,
National Association, as Trustee and Aurora Loan Services Inc. and Washington
Mutual Mortgage Securities Corp., as Master Servicers, dated as of May 1,
2001, no transfer of a Residual Certificate shall be permitted to be made to
any person unless the Depositor and the Securities Administrator have received
a certificate from such transferee containing the representations in
paragraphs 3, 4 and 5 hereof.
6. That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations (such
entity, a "Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to such Residual Certificate, and that the Purchaser
has provided financial statements or other financial information requested by
the transferor in connection with the transfer of the Residual Certificate in
order to permit the transferor to assess the financial capability of the
Purchaser to pay such taxes.
8. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10 hereof are
not satisfied or that the Purchaser has reason to believe does not satisfy the
requirements set forth in paragraph 7 hereof, and (ii) without obtaining from
the prospective Purchaser an affidavit substantially in this form and
providing to the Trustee a written statement substantially in the form of
Exhibit G to the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of any cash
flows generated by the interest and that it intends to pay taxes associated
with holding such Residual Certificate as they become due.
10. That the Purchaser (i) is a U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor
and the Trustee with an effective Internal Revenue Service Form W-8 ECI
(Certificate of Foreign Person's 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 Securities
Administrator as its agent to act as "tax matters person" of the Trust Fund
pursuant to the Trust Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________, 20__.
--------------------------------------
[name of Purchaser]
By:___________________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 20__.
NOTARY PUBLIC
---------------------------------
COUNTY OF_____________________
STATE OF_______________________
My commission expires the _____ day of __________, 20__.
EXHIBIT D-2
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
------------------
Date
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 2001-8A
------------------------------------------------
_______________________ (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
[RESERVED]
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Structured Asset Securities Corporation
Mortgage Pass-Through Certificates
Series 2001-8A
------------------------------------------------
Reference is hereby made to the Trust Agreement dated as of May 1,
2001 (the "Trust Agreement") among Structured Asset Securities Corporation, as
Depositor, The Chase Manhattan Bank, as Securities Administrator, Bank One,
National Association, as Trustee and Aurora Loan Services Inc. and Washington
Mutual Mortgage Securities Corp., as Master Servicers. Capitalized terms used
but not defined herein shall have the meanings given to them in the Trust
Agreement.
This letter relates to $_________ initial Certificate Principal
Amount of Class Certificates which are held in the form of Definitive
Certificates registered in the name of (the "Transferor"). The Transferor has
requested a transfer of such Definitive Certificates for Definitive
Certificates of such Class registered in the name of [insert name of
transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred
in accordance with (i) the transfer restrictions set forth in the Trust
Agreement and the Certificates and (ii) Rule 144A under the Securities Act to
a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer", which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Placement Agent and the Depositor.
-------------------------------------
[Name of Transferor]
By:__________________________________
Name:
Title:
Dated: __________________, ________
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
------------------
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Mortgage Pass-Through Certificates, Series 2001-8A (the "Privately
Offered Certificates") of Structured Asset Securities Corporation (the
"Depositor") which are held in the form of Definitive Certificates, we confirm
that:
(1) We understand that the Privately Offered Certificates have not
been, and will not be, registered under the Securities Act of 1933,
as amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Privately Offered Certificates
within two years of the later of the date of original issuance of the
Privately Offered Certificates or the last day on which such
Privately Offered Certificates are owned by the Depositor or any
affiliate of the Depositor (which includes the Placement Agent) we
will do so only (A) to the Depositor, (B) to "qualified institutional
buyers" (within the meaning of Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act ("QIBs"), (C)
pursuant to the exemption from registration provided by Rule 144
under the Securities Act, or (D) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of May 1,
2001 among the Depositor, The Chase Manhattan Bank, as Securities
Administrator, Bank One, National Association, as Trustee (the
"Trustee") and Aurora Loan Services Inc. and Washington Mutual
Mortgage Securities Corp., as Master Servicers, 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 Securities
Administrator and the Depositor a certification from such transferee
in the form hereof to confirm that the proposed sale is being made
pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased by us
will bear a legend to the foregoing effect.
(3) We are acquiring the Privately Offered Certificates for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Privately Offered Certificates, and we and any
account for which we are acting are each able to bear the economic
risk of such investment.
(4) We are an Institutional Accredited Investor and we are
acquiring the Privately Offered Certificates purchased by us for our
own account or for one or more accounts (each of which is an
Institutional Accredited Investor) as to each of which we exercise
sole investment discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand that
in accordance with ERISA, the Code and the Exemption, no Plan and no
person acting on behalf of such a Plan may acquire such Certificate
except in accordance with Section 3.03(d) of the Trust Agreement.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
----------------------------------
[Purchaser]
By________________________________
Name:
Title:
EXHIBIT H
[FORM OF ERISA TRANSFER AFFIDAVIT]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the "Investor"),
a [corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. The Investor either (x) is not, and on ___________ [date of
transfer] will not be, an employee benefit plan subject to Section 406 or
Section 407 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"), the trustee of any such plan or a person acting on behalf of any
such plan or investing the assets of any such plan; (y) if the Certificate has
been the subject of an ERISA-Qualifying Underwriting, is an insurance company
that is purchasing the Certificate with funds contained in an "insurance
company general account" as defined in Section V(e) of Prohibited Transaction
Class Exemption ("PTCE") 95-60 and the purchase and holding of the Certificate
are covered under Section I and III of PTCE 95-60; or (z) herewith delivers to
the Securities Administrator and shall deliver to the Depositor an opinion of
counsel (a "Benefit Plan Opinion") satisfactory to the Securities
Administrator and the Depositor, and upon which the Securities Administrator
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
Securities Administrator, 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 Securities Administrator,
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, The Chase Manhattan Bank, as Securities Administrator, Bank One,
National Association, as Trustee and Aurora Loan Services Inc. and Washington
Mutual Mortgage Securities Corp., as Master Servicers, dated as of May 1,
2001, no transfer of the ERISA-Restricted Certificates shall be permitted to
be made to any person unless the Depositor and the Securities Administrator
have received a certificate from such transferee in the form hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 20__.
---------------------------------
[Investor]
By:______________________________
Name:
Title:
ATTEST:
---------------------------
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named ___________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _________________ of the Investor, and acknowledged
that he executed the same as his free act and deed and the free act and deed
of the Investor.
Subscribed and sworn before me this _____ day of ___________ 20___.
----------------------------------
NOTARY PUBLIC
My commission expires the
____ day of __________, 20__.
EXHIBIT I
MONTHLY REMITTANCE ADVICE
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
EXHIBIT K
CUSTODIAL AGREEMENTS
EXHIBIT L-1
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO REGULATION S GLOBAL SECURITY
(Transfers pursuant toss.3.03(h)(B)
of the Agreement)
--------------------------------------------------------------------
Re: Structured Asset Securities Corporation Mortgage Loan Trust
Mortgage Pass-Through Certificates, Series 2001-8A
Reference is hereby made to the Trust Agreement (the "Agreement")
among Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services Inc. and Washington Mutual Mortgage Securities Corp., as Master
Servicers, Bank One, National Association, as Trustee and The Chase Manhattan
Bank, as Securities Administrator, dated as of May 1, 2001. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Agreement.
This letter relates to U.S. $ aggregate principal amount of
Securities which are held in the form of a Restricted Global Security with DTC
in the name of [name of transferor] (the "Transferor") to effect the transfer
of the Securities in exchange for an equivalent beneficial interest in a
Regulation S Global Security.
In connection with such request, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Agreement and the Securities and in accordance
with Rule 904 of Regulation S, and that:
a. the offer of the Securities was not made to a person in the
United States;
b. at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee
was outside the United States;
c. no directed selling efforts have been made in contravention
of the requirements of Rule 903 or 904 of Regulation S, as
applicable;
d. the transaction is not part of a plan or scheme to evade the
registration requirements of the United States Securities Act
of 1933, as amended; and
e. the transferee is not a U.S. person (as defined in
Regulation S).
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to
the matters covered hereby. Terms used in this certificate have the meanings
set forth in Regulation S.
[Name of Transferor]
By:
----------------------------------
Name:
Title:
Date: ,
----------------------------------- ------
EXHIBIT L-2
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM REGULATION S GLOBAL SECURITY
TO RESTRICTED GLOBAL SECURITY
(Transfers pursuant toss.3.03(h)(C)
of the Agreement)
---------------------------------------------------------------------
Re: Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2001-8A
Reference is hereby made to the Trust Agreement (the "Agreement")
among Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services Inc. and Washington Mutual Mortgage Securities Corp., as Master
Servicers, Bank One, National Association, as Trustee and The Chase Manhattan
Bank, as Securities Administrator, dated as of May 1, 2001. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Agreement.
This letter relates to U.S. $ aggregate principal amount of
Securities which are held in the form of a Regulations S Global Security in
the name of [name of transferor] (the "Transferor") to effect the transfer of
the Securities in exchange for an equivalent beneficial interest in a
Restricted Global Security.
In connection with such request, and in respect of such Securities,
the Transferor does hereby certify that such Securities are being transferred
in accordance with (i) the transfer restrictions set forth in the Agreement
and the Securities and (ii) Rule 144A under the United States Securities Act
of 1933, as amended, to a transferee that the Transferor reasonably believes
is purchasing the Securities for its own account or an account with respect to
which the transferee exercises sole investment discretion, the transferee and
any such account is a qualified institutional buyer within the meaning of Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other jurisdiction.
[Name of Transferor]
By:
--------------------------------
Name:
Title:
Date: ,
---------------------------- ------
SCHEDULE A
POOL 1, POOL 2 AND POOL 3 MORTGAGE LOANS
SCHEDULE B
POOL 4 MORTGAGE LOANS