EXECUTION
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GREENWICH CAPITAL ACCEPTANCE, INC.,
Depositor
▇▇▇▇▇▇▇▇▇ MORTGAGE HOME LOANS, INC.
Seller
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
Master Servicer
THE MURRAYHILL COMPANY,
Loss Mitigation Advisor
BANKERS TRUST (DELAWARE),
Delaware Trustee
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
Trustee and Custodian
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2001
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▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1
Mortgage Loan Pass-Through Certificates, Series 2001-1
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; DECLARATION OF TRUST
PAGE
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Section 1.01. Defined Terms.........................................................................4
Section 1.02. Declaration of Trust.................................................................38
Section 1.03. Accounting...........................................................................39
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.........................................................39
Section 2.02. Acceptance by Trustee................................................................42
Section 2.03. Repurchase or Substitution of Mortgage Loans by the Seller...........................43
Section 2.04. Representations and Warranties of the Seller with Respect to the Mortgage Loans......46
Section 2.05. [Reserved]...........................................................................47
Section 2.06. Representations and Warranties of the Depositor......................................47
Section 2.07. Issuance of Certificates.............................................................48
Section 2.08. Representations and Warranties of the Seller.........................................49
Section 2.09. Covenants of the Seller..............................................................50
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS; LOSS
MITIGATION ADVISOR
Section 3.01. Master Servicer to Service and Administer the Loans..................................50
Section 3.02. Servicing Agreements Between Master Servicer and Servicers...........................52
Section 3.03. Successor Servicers..................................................................52
Section 3.04. Liability of the Master Servicer.....................................................52
Section 3.05. No Contractual Relationship Between Servicers and the Trustee or Certificateholders..53
Section 3.06. Assumption or Termination of Servicing Agreements by Trustee.........................53
Section 3.07. Collection of Certain Mortgage Loan Payments.........................................53
Section 3.08. Servicing Accounts...................................................................54
Section 3.09. Collection of Taxes, Assessments and Similar Items...................................54
Section 3.10. Collection Account and Distribution Account..........................................55
Section 3.11. Withdrawals from the Collection Account and Distribution Account.....................57
Section 3.12. Investment of Funds in the Accounts..................................................59
Section 3.13. [Reserved]..........................................................................60
Section 3.14. Maintenance of Hazard Insurance, Primary Insurance
Polices and Errors and Omissions and
Fidelity Coverage....................................................................60
Section 3.15. Enforcement of Due-On-Sale Clauses; Assumption Agreements............................62
Section 3.16. Realization upon Defaulted Mortgage Loans............................................63
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Section 3.17. Trustee to Cooperate; Release of Mortgage Files......................................65
Section 3.18. Servicing Compensation...............................................................66
Section 3.19. Reports to the Trustee; Collection Account Statements................................66
Section 3.20. Statement as to Compliance...........................................................66
Section 3.21. Independent Public Accountants' Servicing Report.....................................67
Section 3.22. Access to Certain Documentation; Filing of Reports by Trustee........................67
Section 3.23. Title, Management and Disposition of REO Property....................................67
Section 3.24. Obligations of the Master Servicer in Respect of Prepayment Interest Shortfalls......70
Section 3.25. [Reserved]..........................................................................71
Section 3.26. [Reserved]..........................................................................71
Section 3.27. [Reserved]...........................................................................71
Section 3.28. Representations and Warranties of the Master Servicer................................71
Section 3.29. Closing Certificate and Opinion......................................................73
Section 3.30. Duties of the Loss Mitigation Advisor................................................73
Section 3.31. Limitation Upon Liability of the Loss Mitigation Advisor.............................74
Section 3.32. Limitation on Liability of the Master Servicer.......................................74
ARTICLE IV
FLOW OF FUNDS
Section 4.01. Distributions........................................................................74
Section 4.02. [Reserved]..........................................................................77
Section 4.03. Allocation of Realized Losses........................................................77
Section 4.04. Statements...........................................................................78
Section 4.05. Remittance Reports; Advances.........................................................83
Section 4.06. Purchase of Certain Loans............................................................84
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.....................................................................84
Section 5.02. Registration of Transfer and Exchange of Certificates................................85
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates....................................90
Section 5.04. Persons Deemed Owners................................................................90
Section 5.05. Appointment of Paying Agent..........................................................90
ARTICLE VI
THE SELLER AND THE DEPOSITOR; RESIGNATION OF SERVICERS
Section 6.01. Liability of the Seller and the Depositor............................................91
Section 6.02. Merger or Consolidation of, or Assumption of the Obligations of, the Seller or the
Depositor............................................................................91
Section 6.03. [Reserved]...........................................................................91
Section 6.04. Resignation of Master Servicer, Servicers............................................91
ARTICLE VII
DEFAULT
Section 7.01. Master Servicer Event of Termination.................................................92
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Section 7.02. Trustee to Act.......................................................................94
Section 7.03. Waiver of Master Servicer Event of Termination.......................................95
Section 7.04. Notification to Certificateholders...................................................95
Section 7.05. Consolidation or Merger of the Master Servicer.......................................95
ARTICLE VIII
THE TRUSTEE
Section 8.01. Duties of Trustee....................................................................95
Section 8.02. Certain Matters Affecting the Trustee................................................97
Section 8.03. Trustee Not Liable for Certificates, Mortgage Loans or Additional Collateral.........98
Section 8.04. Trustee May Own Certificates.........................................................99
Section 8.05. Trustee's Fees and Expenses..........................................................99
Section 8.06. Eligibility Requirements for Trustee................................................100
Section 8.07. Resignation or Removal of Trustee...................................................100
Section 8.08. Successor Trustee...................................................................101
Section 8.09. Merger or Consolidation of Trustee..................................................101
Section 8.10. Appointment of Co-Trustee or Separate Trustee.......................................101
Section 8.11. Limitation of Liability.............................................................103
Section 8.12. Trustee May Enforce Claims Without Possession of Certificates.......................103
Section 8.13. Suits for Enforcement...............................................................103
Section 8.14. Waiver of Bond Requirement..........................................................104
Section 8.15. Waiver of Inventory, Accounting and Appraisal Requirement...........................104
Section 8.16. Appointment of Custodians...........................................................104
Section 8.17. Delaware Trustee....................................................................104
ARTICLE IX
REMIC ADMINISTRATION
Section 9.01. REMIC Administration................................................................107
Section 9.02. Prohibited Transactions and Activities..............................................109
ARTICLE X
TERMINATION
Section 10.01. Termination.........................................................................109
Section 10.02. Additional Termination Requirements.................................................110
ARTICLE XI
DEPOSITION OF TRUST ASSETS
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Amendment...........................................................................111
Section 12.02. Recordation of Agreement; Counterparts..............................................112
Section 12.03. Limitation on Rights of Certificateholders..........................................113
Section 12.04. Governing Law; Jurisdiction.........................................................113
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Section 12.05. Notices.............................................................................114
Section 12.06. Severability of Provisions..........................................................114
Section 12.07. Article and Section References......................................................114
Section 12.08. Notice to the Rating Agency.........................................................115
Section 12.09. Further Assurances..................................................................115
Section 12.10. Benefits of Agreement...............................................................115
Section 12.11. Acts of Certificateholders..........................................................116
EXHIBITS AND SCHEDULES:
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Exhibit A Form of Senior Certificates................................................................A-1
Exhibit B Forms of Residual Certificate..............................................................B-1
Exhibit C Form of Subordinate Certificates...........................................................C-1
Exhibit D Form of Class X Certificates...............................................................D-1
Exhibit E Form of Reverse of the Certificates........................................................E-1
Exhibit F [Reserved].................................................................................F-1
Exhibit G-1 Form of Trustee's Initial Certification..................................................G-1-1
Exhibit G-2 Form of Trustee's Final Certification....................................................G-2-1
Exhibit G-3 Form of Receipt of Mortgage Note.........................................................G-3-1
Exhibit H Form of Lost Note Affidavit................................................................H-1
Exhibit I Form of ERISA Representation...............................................................I-1
Exhibit J Form of Investment Letters.................................................................J-1
Exhibit K Form of Transferor Certificate.............................................................K-1
Exhibit L Form of Residual Certificate Transfer Affidavit............................................L-1
Schedule I Mortgage Loan Schedule
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This Pooling and Servicing Agreement is dated as of October 1, 2001
(the "AGREEMENT"), among GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware
corporation, as depositor (the "DEPOSITOR"), ▇▇▇▇▇▇▇▇▇ MORTGAGE HOME LOANS,
INC., a Delaware corporation, as seller (the "SELLER"), WASHINGTON MUTUAL
MORTGAGE SECURITIES CORP., a Delaware corporation, as master servicer (the
"MASTER SERVICER"), THE MURRAYHILL COMPANY, a Colorado corporation, as loss
mitigation advisor (the "LOSS MITIGATION ADVISOR"), BANKERS TRUST (Delaware),
a Delaware banking corporation (the "DELAWARE TRUSTEE") and BANKERS TRUST
COMPANY OF CALIFORNIA, N.A., a national banking association, as trustee (the
"TRUSTEE").
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates
(collectively, the "CERTIFICATES"), to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund created hereunder. The Certificates will consist of
ten classes of certificates, designated as (i) the Class A Certificates, (ii)
the Class X Certificates, (iii) the Class A-R Certificate, (iv) the Class
LTA-R Certificate, (v) the Class B-1 Certificates, (vi) the Class B-2
Certificates, (vii) the Class B-3 Certificates, (viii) the Class B-4
Certificates, (ix) the Class B-5 Certificates and (x) the Class B-6
Certificates.
For federal income tax purposes, the Trust Fund will consist of two
REMICs, the Lower Tier REMIC and the Upper Tier REMIC. The "LOWER TIER REMIC"
will hold as its assets all of the assets constituting the Trust Fund and will
issue the "LOWER TIER REMIC REGULAR INTERESTS" (which will be uncertificated
and will represent the "regular interests" in the Lower Tier REMIC) and the
Class LTA-R Certificate, which will be the single "residual interest" in the
Lower Tier REMIC. The Trustee will hold the Lower Tier REMIC Regular
Interests. On each Distribution Date, following the allocation of Realized
Losses and payments of principal, each Lower Tier REMIC Interest will have a
principal balance equal to that of its Upper Tier REMIC Corresponding Class.
The "UPPER TIER REMIC" will hold as its assets the Lower Tier REMIC
Regular Interests and will issue the Regular Certificates (which will
represent the "regular interests" in the Upper Tier REMIC) and the Class A-R
Certificate, which will represent the single "residual interest" in the Upper
Tier REMIC.
All REMIC regular and residual interests created hereby will be
retired on or before the Latest Possible Maturity Date.
1
The following table irrevocably sets forth the designation, the
Uncertificated Lower Tier REMIC Pass-Through Rate, the initial Uncertificated
Principal Balance, the Upper Tier REMIC Corresponding Class and the allocation
of principal and interest for each of the Lower Tier REMIC Regular Interests,
each of which is hereby designated as a REMIC regular interest for purposes of
the REMIC Provisions. None of the Lower Tier REMIC Regular Interests will be
certificated.
INITIAL
UNCERTIFICATED UNCERTIFICATED
PRINCIPAL LOWER TIER REMIC ALLOCATION OF ALLOCATION OF UPPER TIER REMIC
DESIGNATION BALANCE PASS-THROUGH RATE PRINCIPAL INTEREST CORRESPONDING CLASS
-------------------- ---------------------- ------------------- ------------------ ------------------- --------------------
Class L-A-1 $495,259,000.00 (1) Class A Class A, X A
Class L-A-2 $ 100.00.00 (1) Class A-R Class A-R Class A-R
Class L-B-1 $ 5,118,000.00 (1) Class B-1 Class B-1 B-1
Class L-B-2 $ 4,095,000.00 (1) Class B-2 Class B-2 B-2
Class L-B-3 $ 3,327,000.00 (1) Class B-3 Class B-3 B-3
Class L-B-4 $ 1,279,000.00 (1) Class B-4 Class B-4 B-4
Class L-B-5 $ 1,023,000.00 (1) Class B-5 Class B-5 B-5
Class L-B-6 $ 1,795,271.60 (1) Class B-6 Class B-6 B-6
Class LTA-R (2) (2) N/A N/A N/A
========
(1) Calculated pursuant to the definition of "Net WAC".
(2) The Class LTA-R Certificate will not have a principal balance or
stated pass-through rate, but will be entitled solely to
distributions of Residual Funds and any amounts remaining in the
Lower Tier REMIC after all required distributions have been made on
the Lower Tier Regular Interests.
2
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and Original Class Certificate Principal Balance or Original
Class Certificate Notional Balance for each Class of Certificates comprising
the interests in the Upper Tier REMIC created hereunder each of which, except
for the Class A-R Certificate, is hereby designated a REMIC regular interest
for purposes of the REMIC Provisions:
Original Class
Certificate Principal Pass-Through
Class Balance Rate
--------------------- ----------------------- ------------------
Class A $495,259,000.00 (1)
Class X (2) (2)
Class A-R $ 100.00 (3)
Class B-1 $ 5,118,000.00 (3)
Class B-2 $ 4,095,000.00 (3)
Class B-3 $ 3,327,000.00 (3)
Class B-4 $ 1,279,000.00 (3)
Class B-5 $ 1,023,000.00 (3)
Class B-6 $ 1,795,271.60 (3)
(1) Through the Crossover Date, the Class A Certificates shall bear
interest at a per annum rate equal to the lesser of (x) 4.67%, and
(y) the Net WAC. On each Distribution Date thereafter, the Class A
Certificates shall bear interest at a per annum rate equal to the Net
WAC for such date
(2) The Class X Certificates will have no principal balance and will bear
interest calculated pursuant to the definition of Class X Certificate
Pass-Through Rate on the Class Certificate Notional Balance thereof.
(3) Calculated pursuant to the definition of Net WAC. ARTICLE I
3
DEFINITIONS; DECLARATION OF TRUST
SECTION 1.01. Defined Terms.
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Whenever used in this Agreement or in the Preliminary Statement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article. All calculations of interest described
herein shall be made on the basis of an assumed 360-day year consisting of
twelve 30-day months.
"1933 ACT": The Securities Act of 1933, as amended.
"ACCOUNT": Either the Collection Account or the Distribution Account.
"ACCRUAL PERIOD": With respect to each Distribution Date and any Class of
Certificates, the calendar month prior to the month of that Distribution Date.
"ADDITIONAL COLLATERAL": With respect to any Additional Collateral
Mortgage Loan, the marketable securities subject to a security interest
pursuant to the related pledge agreement.
"ADDITIONAL COLLATERAL MORTGAGE LOAN": Each Mortgage Loan identified as
such in the Mortgage Loan Schedule and as to which Additional Collateral is
then required to be provided as security therefor.
"ADJUSTMENT DATE": With respect to each Mortgage Loan, each adjustment
date on which the related Loan Rate changes pursuant to the related Mortgage
Note. The first Adjustment Date following the Cut-Off Date as to each Mortgage
Loan is set forth in the Mortgage Loan Schedule.
"ADVANCE": As to any Mortgage Loan or REO Property, any advance made by
the Master Servicer in respect of any Distribution Date pursuant to Section
4.05.
"ADVERSE REMIC EVENT": As defined in Section 9.01(f) hereof.
"AFFILIATE": With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of
a Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise and "controlling" and "controlled" shall
have meanings correlative to the foregoing.
"AGREEMENT": This Pooling and Servicing Agreement, dated as of October 1,
2001, as amended, supplemented and otherwise modified from time to time.
"AGGREGATE SENIOR PERCENTAGE": As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Certificate Principal Balances
4
of the Classes of Senior Certificates and the denominator of which is the Pool
Balance for such Distribution Date, but in no event greater than 100%.
"AGGREGATE SUBORDINATE PERCENTAGE": As to any Distribution Date, the
difference between 100% and the Aggregate Senior Percentage for such
Distribution Date, but in no event less than zero.
"APPLICABLE CREDIT SUPPORT PERCENTAGE": As defined in Section 4.01(e).
"ASSIGNMENT": As to any Mortgage, an assignment of mortgage, notice of
transfer or equivalent instrument, in recordable form, which is sufficient,
under the laws of the jurisdiction in which the related Mortgaged Property is
located, to reflect or record the sale of such Mortgage.
"AVAILABLE FUNDS": As to any Distribution Date, an amount equal to (i)
the sum of (a) the aggregate of the Monthly Payments received on or prior to
the related Determination Date (excluding Monthly Payments due in future Due
Periods but received by the related Determination Date), (b) Net Liquidation
Proceeds, Insurance Proceeds, Principal Prepayments and other unscheduled
recoveries of principal and interest in respect of the Mortgage Loans received
(x) for the first Distribution Date, during the period from the Cut-Off Date
through November 14, 2001, and (y) for any Distribution Date thereafter, the
related Prepayment Period, (c) the aggregate of any amounts received in
respect of REO Properties for such Distribution Date, (d) the aggregate of any
amounts of Compensating Interest deposited in the Collection Account by the
Master Servicer for that Distribution Date, (e) the aggregate of the Purchase
Prices, Substitution Adjustments and amounts collected for purchases pursuant
to Section 4.06 deposited in the Collection Account during the related
Prepayment Period, (f) the aggregate of any Advances made by the Master
Servicer for that Distribution Date, (g) the aggregate of any Advances made by
the Trustee for that Distribution Date pursuant to Section 7.02 hereof and (h)
the Termination Price on the Distribution Date on which the Trust is
terminated; minus (ii) the sum of (x) amounts in reimbursement for Advances
previously made in respect of the Mortgage Loans and other amounts as to which
the Master Servicer is entitled to be reimbursed pursuant to Section 3.11, (y)
the amount payable to the Trustee pursuant to Section 8.05 and (z) amounts
deposited in the Collection Account or the Distribution Account, as the case
may be, in error.
"BANKRUPTCY CODE": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"BANKRUPTCY COVERAGE TERMINATION DATE": The date on which the Bankruptcy
Loss Coverage Amount is reduced to zero.
"BANKRUPTCY LOSS": With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction.
"BANKRUPTCY LOSS COVERAGE AMOUNT": As of any Determination Date, the
Initial Bankruptcy Loss Coverage Amount as reduced by the aggregate amount of
Bankruptcy Losses allocated to the Certificates since the Cut-Off Date;
provided, however, that the Bankruptcy Loss Coverage Amount may also be
reduced pursuant to a letter from the Rating Agency to the
5
Trustee to the effect that any such reduction will not result in a downgrading
of the then current ratings assigned by the Rating Agency to the Classes of
Senior Certificates.
"BASE VALUE": With respect to any Mortgage Loan for which Additional
Collateral has been pledged, the value of the Additional Collateral as
determined with respect to that Mortgage Loan in accordance with the
applicable underwriting guidelines.
"BOOK-ENTRY CERTIFICATES": Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of
which is reflected on the books of the Depository or on the books of a Person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.02 hereof). On the
Closing Date, all Classes of the Certificates other than the Physical
Certificates shall be Book-Entry Certificates.
"BUSINESS DAY": Any day other than a Saturday, a Sunday or a day on which
banking or savings institutions in the State of California, the State of
Illinois, the State of New York or in the city in which the Corporate Trust
Office of the Trustee is located are authorized or obligated by law or
executive order to be closed.
"CERTIFICATE": Any Regular Certificate or Residual Certificate.
"CERTIFICATEHOLDER" or "HOLDER": The Person in whose name a Certificate
is registered in the Certificate Register, except that a Disqualified
Organization or non-U.S. Person shall not be a Holder of a Residual
Certificate for any purpose hereof.
"CERTIFICATE GUARANTY SURETY BOND": With respect to the Additional
Collateral Mortgage Loans acquired by the Seller from MSDWCC, the Limited
Purpose Surety Bond (No. ABO240BE) issued by the Surety.
"CERTIFICATE NOTIONAL BALANCE": With respect to a Class X Certificate and
any date of determination, the product of (i) the Percentage Interest
represented by such Class X Certificate and (ii) the Class Certificate
Notional Balance of such Class X Certificate.
"CERTIFICATE OF TRUST": The certificate of trust filed with the Delaware
Secretary of State in respect of the Trust pursuant to Section 3810 of the
DBTA.
"CERTIFICATE OWNER": With respect to each Book-Entry Certificate, any
beneficial owner thereof.
"CERTIFICATE PRINCIPAL BALANCE": As to any Distribution Date, with
respect to each Certificate of a given Class other than the Class X
Certificates, the Class Certificate Principal Balance of such Class multiplied
by the applicable Percentage Interest of such Certificate.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR": The register
maintained and registrar appointed pursuant to Section 5.02 hereof.
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"CLASS": Collectively, Certificates that have the same priority of
payment and bear the same class designation and the form of which is identical
except for variation in the Percentage Interest evidenced thereby.
"CLASS A CERTIFICATE": Any of the Class A Certificates as designated on
the face thereof, executed by the Trustee and authenticated and delivered by
the Certificate Registrar, substantially in the form annexed hereto as Exhibit
A, evidencing the ownership of a "regular interest" in the Upper Tier REMIC
and representing the right to distributions as set forth herein and therein.
"CLASS A-R CERTIFICATE": The Class A-R Certificate as designated on the
face thereof executed by the Trustee, and authenticated and delivered by the
Certificate Registrar, substantially in the form annexed hereto as Exhibit B,
evidencing the ownership of the sole class of "residual interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"CLASS B-1 CERTIFICATE": Any of the Class B-1 Certificates as designated
on the face thereof, executed by the Trustee and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit C, evidencing the ownership of a "regular interest" in the Upper Tier
REMIC and representing the right to distributions as set forth herein and
therein.
"CLASS B-2 CERTIFICATE": Any of the Class B-2 Certificates as designated
on the face thereof, executed by the Trustee and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit C, evidencing the ownership of a "regular interest" in the Upper Tier
REMIC and representing the right to distributions as set forth herein and
therein.
"CLASS B-3 CERTIFICATE": Any of the Class B-3 Certificates as designated
on the face thereof, executed by the Trustee and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit C, evidencing the ownership of a "regular interest" in the Upper Tier
REMIC and representing the right to distributions as set forth herein and
therein.
"CLASS B-4 CERTIFICATE": Any of the Class B-4 Certificates as designated
on the face thereof, executed by the Trustee and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit C, evidencing the ownership of a "regular interest" in the Upper Tier
REMIC and representing the right to distributions as set forth herein and
therein.
"CLASS B-5 CERTIFICATE": Any of the Class B-5 Certificates as designated
on the face thereof, executed by the Trustee and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit C, evidencing the ownership of a "regular interest" in the Upper Tier
REMIC and representing the right to distributions as set forth herein and
therein.
"CLASS B-6 CERTIFICATE": Any of the Class B-6 Certificates as designated
on the face thereof, executed by the Trustee and authenticated and delivered
by the Certificate ▇▇▇▇▇▇▇▇▇,
▇
substantially in the form annexed hereto as Exhibit C, evidencing the
ownership of a "regular interest" in the Upper Tier REMIC and representing the
right to distributions as set forth herein and therein.
"CLASS LTA-R CERTIFICATE": The Class LTA-R Certificate as designated on
the face thereof executed by the Trustee, and authenticated and delivered by
the ertificate Registrar, substantially in the form annexed hereto as Exhibit
B, evidencing the ownership of the sole class of "residual interests" in the
Lower Tier REMIC and representing the right to distributions as set forth
herein and therein.
"CLASS CERTIFICATE PRINCIPAL BALANCE": As to any Distribution Date, with
respect to any Class of Certificates other than the Class X Certificates, the
Original Class Certificate Principal Balance as reduced by the sum of (x) all
amounts actually distributed in respect of principal of that Class on all pior
Distribution Dates, (y) all Realized Losses, including Bankruptcy Losses,
Special Hazard Losses, Fraud Losses and Excess Losses, if any, actually
allocated to that Class on all prior Distribution Dates and (z) in the case of
the Subordinate Certificates, any applicable Writedown Amount.
"CLASS CERTIFICATE NOTIONAL BALANCE": As of any Distribution Date trough
the Crossover Date, with respect to the Class X Certificates, an amount equal
to the Class Certificate Principal Balance of the Class A Certificates for
such Distribution Date; as to any Distribution Date thereafter, zero.
"CLASS SUBORDINATION PERCENTAGE": With respect to each Class of
Subordinate Certificates and any Distribution Date, the percentage equivalent
of a fraction the numerator of which is the Class Certificate Principal
Balance of uch Class immediately before such Distribution Date and the
denominator of wich is the aggregate of the Class Certificate Principal
Balances of all Classes of Certificates immediately before such Distribution
Date.
"CLASS X CERTIFICATE": Any one of the Class X Certificates as designated
on the face thereof substantially in the form annexed hereto as Exhibit D,
executed, authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein.
"CLASS X CERTIFICATE PASS-THROUGH RATE": With respect to the Class X
Certificates and any Distribution Date through the Crossover Date, the Net WAC
for such Distribution Date minus the Class A Certificate Pass-Through Rate for
such Distribution Date; with respect to each Distribution Date thereafter,
zero.
"CLOSE OF BUSINESS": As used herein, with respect to any Business Day and
location, 5:00 p.m. at such location.
"CLOSING DATE": November 1, 2001.
"CODE": The Internal Revenue Code of 1986, as amended.
"COLLECTION ACCOUNT": The account or accounts created and maintained by
the Master Servicer pursuant to Section 3.10, which shall be entitled
"Washington Mutual Mortgage Securities Corp., as Master Servicer for Bankers
Trust Company of California, N.A., as Trustee,
8
in trust for the registered Holders of ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust
2001-1, Mortgage Pass-Through Certificates Series 2001-1" and which must be an
Eligible Account.
"COMMISSION": U.S. Securities and Exchange Commission.
"COMPENSATING INTEREST": With respect to any Distribution Date, the
lesser of (i) the sum of (a) the aggregate Master Servicing Fee, (b) the
aggregate Payoff Earnings and (c) the aggregate Payoff Interest and (ii) the
aggregate Uncollected Interest, in each case, for such date.
"COMPENSATING INTEREST PAYMENT": With respect to any Distribution Date,
Compensating Interest.
"CONVERTED LOAN": Any Mortgage Loan as to which the Mortgagor thereunder
has exercised its right under the related Mortgage Note to convert the
adjustable Loan Rate thereon to a fixed Loan Rate.
"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 or
a copy of the executed Security Agreement; (iii) the original or a copy of the
executed Proprietary Lease and the original assignment of the Proprietary
Lease endorsed in blank; (iv) the original executed Recognition Agreement and,
if available, the original assignment of the Recognition Agreement (or a
blanket assignment of all Recognition Agreements) endorsed in blank; (v) the
executed UCC-1 financing statement with evidence of recording thereon, which
has been filed in all places required to perfect the security interest in the
Cooperative Shares and the Proprietary Lease; and (vi) executed UCC-3
financing statements (or copies thereof) or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
"COOPERATIVE PROPERTY": The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the Cooperative Shares of the Cooperative Corporation.
"COOPERATIVE SHARES": Shares issued by a Cooperative Corporation.
"COOPERATIVE UNIT": A single family dwelling located in a Cooperative
Property.
"CORPORATE TRUST OFFICE": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ 2001-1 TM0101, or at such other
9
address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor and the Seller.
"CORRESPONDING CLASS": With respect to each Lower Tier REMIC Regular
Interest, the Upper Tier REMIC Corresponding Class set forth in the
Preliminary Statement.
"CROSSOVER DATE": The Distribution Date in April 2006.
"CURTAILMENT": Any partial prepayment of principal on a Mortgage Loan.
"CURTAILMENT SHORTFALL": With respect to any Curtailment, an amount equal
to one month's interest on such Curtailment at the applicable Net Loan Rate on
such Mortgage Loan.
"CUSTODIAN": Bankers Trust Company of California, N.A., and its
successors acting as custodian of the Mortgage Files.
"CUT-OFF DATE": With respect to any Mortgage Loan other than a Qualified
Substitute Mortgage Loan, the Close of Business in New York City on October 1,
2001. With respect to any Qualified Substitute Mortgage Loan, the date
designated as such on the Mortgage Loan Schedule (as amended).
"CUT-OFF DATE AGGREGATE PRINCIPAL BALANCE": The aggregate of the Cut-Off
Date Principal Balances of the Mortgage Loans.
"CUT-OFF DATE PRINCIPAL BALANCE": With respect to any Mortgage Loan, the
principal balance thereof remaining to be paid, after application of all
scheduled principal payments due on or before the Cut-Off Date whether or not
received as of the Cut-Off Date (or as of the applicable date of substitution
with respect to a Qualified Substitute Mortgage Loan).
"DBTA": The Delaware Business Trust Act (12 Del. ▇.▇▇. 3801 et seq.), as
amended from time to time. -- ---
"DEBT SERVICE REDUCTION": With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for that Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, unless the
reduction results from a Deficient Valuation.
"DEFICIENT VALUATION": With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"DEFINITIVE CERTIFICATES": Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(c) hereof.
"DELAWARE TRUSTEE": The entity identified as such in the Recitals hereof
and its successors.
10
"DELETED MORTGAGE LOAN": A Mortgage Loan replaced or to be replaced by
one or more Qualified Substitute Mortgage Loans.
"DELINQUENT": Any Mortgage Loan with respect to which the Monthly Payment
due on a Due Date is not made.
"DEPOSITOR": Greenwich Capital Acceptance, Inc., a Delaware corporation,
or any successor in interest.
"DEPOSITORY": The initial Depository shall be The Depository Trust
Company, whose nominee is Cede & Co., or any other organization registered as
a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository shall initially be the registered Holder of
the Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
"DEPOSITORY PARTICIPANT": A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"DETERMINATION DATE": A day not later than the 10th day preceding the
related Distribution Date, as determined by the Master Servicer.
"DIRECTLY OPERATE": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by either REMIC other than
through an Independent Contractor; provided, however, that the Trustee (or the
Master Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Master Servicer on
behalf of the Trustee) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO Property.
"DISQUALIFIED ORGANIZATION": A "disqualified organization" defined in
Section 860E(e)(5) of the Code, or any other Person so designated by the
Trustee based upon an Opinion of Counsel provided to the Trustee by nationally
recognized counsel acceptable to the Trustee that the holding of an ownership
interest in the Residual Certificates by such Person may cause the Trust Fund
or any Person having an ownership interest in any Class of Certificates (other
than such Person) to incur liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the transfer of an ownership
interest in the Residual Certificates to such Person.
"DISTRIBUTION ACCOUNT": The trust account or accounts created and
maintained by the Trustee pursuant to Section 3.10(b) hereof which shall be
entitled "Distribution Account, Bankers Trust Company of California, N.A., as
Trustee, in trust for the registered Certificateholders of ▇▇▇▇▇▇▇▇▇ Mortgage
Securities Trust 2001-1, Mortgage Loan Pass-Through Certificates, Series
2001-1" and which must be an Eligible Account.
11
"DISTRIBUTION ACCOUNT INCOME": As to any Distribution Date, any interest
or other investment income earned on funds deposited in the Distribution
Account during the month of such Distribution Date.
"DISTRIBUTION DATE": The twenty-fifth day of the month, or, if such day
is not a Business Day, the next Business Day commencing in November 2001.
"DISTRIBUTION DATE STATEMENT": As defined in Section 4.04(a) hereof.
"DUE DATE": With respect to each Mortgage Loan and any Distribution Date,
the first day of the calendar month in which that Distribution Date occurs on
which the Monthly Payment for such Mortgage Loan was due, exclusive of any
days of grace.
"DUE PERIOD": With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month in which that
Distribution Date occurs and ending on the first day of the month in which
that Distribution Date occurs.
"ELIGIBLE ACCOUNT": Any of
(i) 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
in the highest short term rating category of the Rating Agency
at the time any amounts are held on deposit therein;
(ii) an account or accounts the deposits in which are fully insured
by the FDIC (to the limits established by it), the uninsured
deposits in which account are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and
to the Rating Agency, the Certificateholders will have a claim
with respect to the funds in the account or a perfected first
priority security interest against the collateral (which shall
be limited to Permitted Investments) securing those funds that
is superior to claims of any other depositors or creditors of
the depository institution with which such account is
maintained;
(iii) a trust account or accounts 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 otherwise acceptable to the Rating Agency without
reduction or withdrawal of its then current ratings of the
Certificates as evidenced by a letter from the Rating Agency to
the Trustee. Eligible Accounts may bear interest.
"EMPLOYEE LOAN": Any Mortgage Loan identified as such in the Mortgage Loan
Schedule and which was originated by the Seller, which provides for an increase
in the Loan Rate thereof in the event of the change of employment of the
Mortgagor thereunder.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
12
"ERISA-RESTRICTED CERTIFICATES": The Residual Certificates and any
Certificate that does not satisfy the applicable rating requirement under the
Underwriter's Exemption.
"ESCROW PAYMENT ACCOUNT": Any one of the accounts described in
Section 3.09.
"ESCROW PAYMENTS": The amounts constituting ground rents, taxes,
assessments, water rates, fire and hazard insurance premiums and other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to any Mortgage Loan.
"EXCESS LOSS": With respect to the Mortgage Loans, the amount of any
(i) Fraud Loss realized after the Fraud Loss Coverage Termination Date, (ii)
Special Hazard Loss realized after the Special Hazard Coverage Termination
Date or (iii) Bankruptcy Loss realized after the Bankruptcy Coverage
Termination Date.
"EXPENSE FEE RATE": With respect to any Mortgage Loan, the per annum
rate at which the Expense Fee accrues for such Mortgage Loan as set forth in
the Mortgage Loan Schedule.
"EXPENSE FEE" With respect to any Mortgage Loan, the sum of (w) the
Retained Rate, if any, (x) the Master Servicing Fee, (y) the Servicing Fee
with respect to the related Servicer and (z) the Trustee Fee for such Mortgage
Loan.
"▇▇▇▇▇▇ ▇▇▇": The Federal National Mortgage Association or any
successor thereto.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"FINAL RECOVERY DETERMINATION": With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Seller or by the Master Servicer pursuant to or as
contemplated by Section 2.03, 3.16, 4.06 and 10.01), a determination made by
the Master Servicer that all Insurance Proceeds, Liquidation Proceeds and
other payments or recoveries which the Master Servicer expects to be finally
recoverable in respect thereof have been so recovered.
"FIVE-YEAR CMT": The weekly average yield on United States Treasury
securities adjusted to a constant maturity of five years as published by the
Federal Reserve Board in Statistical Release H.15(519).
"FIVE-YEAR CMT INDEXED": Indicates a Mortgage Loan that has an
adjustable Loan Rate calculated on the basis of the Five-Year CMT Index.
"FRAUD LOAN": A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
"FRAUD LOSS COVERAGE AMOUNT": As of the Closing Date, $10,237,927,
subject to reduction from time to time by the amount of Fraud Losses allocated
to the Certificates. In addition, on each anniversary of the Cut-Off Date, the
Fraud Loss Coverage Amount will be reduced as follows: (a) on the first,
second, third and fourth anniversaries of the Cut-Off Date, to an amount equal
to the lesser of (i) 1.00% of the then current Pool Balance and (ii) the
excess of the Fraud Loss Coverage Amount as of the preceding anniversary of
the Cut-Off Date (or, in the case of the first anniversary, as of the Cut-Off
Date) over the cumulative amount of Fraud Losses
13
allocated to the Certificates since such preceding anniversary or the Cut-Off
Date, as the case may be; and (b) on the fifth anniversary of the Cut-Off
Date, to zero; provided, however, that the Fraud Loss Coverage Amount may also
be reduced pursuant to a letter from the Rating Agency to the Trustee to the
effect that any such reduction will not result in the downgrading of the then
current ratings assigned by such Rating Agency to the Classes of Senior
Certificates.
"FRAUD LOSS COVERAGE TERMINATION DATE": The date on which the Fraud
Loss Coverage Amount is reduced to zero.
"FRAUD LOSSES": Realized Losses on any Mortgage Loans sustained by
reason of a default arising from fraud, dishonesty or misrepresentation in
connection with that Mortgage Loan.
"▇▇▇▇▇▇▇ MAC": The Federal Home Loan Mortgage Corporation or any
successor thereto.
"GROSS MARGIN": With respect to each Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the
applicable Index on each Adjustment Date in accordance with the terms of the
related Mortgage Note used to determine the Loan Rate for such Mortgage Loan.
"INDEPENDENT": When used with respect to any specified Person, any
such Person who (a) is in fact independent of the Depositor and its
Affiliates, (b) does not have any direct financial interest in or any material
indirect financial interest in the Depositor or any Affiliate thereof, and (c)
is not connected with the Depositor or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail
to be Independent of the Depositor or any Affiliate thereof merely because
such Person is the beneficial owner of 1% or less of any class of securities
issued by the Depositor or any Affiliate thereof.
"INDEPENDENT CONTRACTOR": Either (i) any Person (other than the
Master Servicer) that would be an "independent contractor" with respect to
either REMIC within the meaning of Section 856(d)(3) of the Code if the
related REMIC were a real estate investment trust (except that the ownership
tests set forth in that section shall be considered to be met by any Person
that owns, directly or indirectly, 35% or more of any Class of Certificates),
so long as either REMIC does not receive or derive any income from such Person
and provided that the relationship between such Person and the related REMIC
is at arm's length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or (ii) any other Person (including the Master Servicer) if the
Trustee has received an Opinion of Counsel to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code (determined without regard to the exception applicable for
purposes of Section 860D(a) of the Code), or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
14
"INDEX": With respect to each Mortgage Loan and each Adjustment Date,
the index specified in the related Mortgage Note.
"INITIAL BANKRUPTCY LOSS COVERAGE AMOUNT": $100,000.
"INITIAL CERTIFICATE PRINCIPAL BALANCE": With respect to any
Certificate other than a Class X or Class LTA-R Certificate, the amount
designated "Initial Certificate Principal Balance" on the face thereof.
"INITIAL CERTIFICATE NOTIONAL BALANCE": With respect to any Class X
Certificate, the amount designated "Initial Certificate Notional Balance" on
the face thereof.
"INSURANCE PROCEEDS": With respect to any Mortgage Loan, proceeds of
any title policy, hazard policy or other insurance policy covering a Mortgage
Loan, to the extent such proceeds are not to be applied to the restoration of
the related Mortgaged Property or released to the related Mortgagor in
accordance with the procedures that the Master Servicer would follow in
servicing mortgage loans held for its own account, subject to the terms and
conditions of the related Mortgage Note and Mortgage.
"INTEREST DISTRIBUTABLE AMOUNT": With respect to any Distribution
Date and each Class of Certificates, the sum of (i) the Monthly Interest
Distributable Amount for that Class and (ii) the Unpaid Interest Shortfall
Amount for that Class .
"LATE COLLECTIONS": With respect to any Mortgage Loan and any
Distribution Date, all amounts received subsequent to the Determination Date
immediately following any related Due Period, whether as late payments of
Monthly Payments or as Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late payments or collections of principal and/or interest due
(without regard to any acceleration of payments under the related Mortgage and
Mortgage Note) but delinquent on a contractual basis for such Due Period and
not previously recovered.
"LATEST POSSIBLE MATURITY DATE": As determined as of the Cut-Off
Date, the Distribution Date following the fifth anniversary of the scheduled
maturity date of the Mortgage Loan having the latest scheduled maturity date
as of the Cut-Off Date.
"LIQUIDATED MORTGAGE LOAN": As to any Distribution Date, any Mortgage
Loan in respect of which the Master Servicer has determined, in accordance
with the servicing procedures specified herein, as of the end of the related
Prepayment Period, that all Liquidation Proceeds that it expects to recover
with respect to the liquidation of such Mortgage Loan or disposition of the
related REO Property have been recovered.
"LIQUIDATION EVENT": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such
Mortgage Loan is removed from the Trust Fund by reason of its being purchased,
sold or replaced pursuant to or as contemplated hereunder. With respect to any
REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from the Trust Fund by reason of its being sold or purchased pursuant
to Section 10.01 hereof or the applicable provisions of the related Servicing
Agreement.
15
"LIQUIDATION PROCEEDS": With respect to any Mortgage Loan, the amount
(other than amounts received in respect of the rental of any REO Property
prior to REO Disposition) received by the related Servicer as proceeds from
the liquidation of such Mortgage Loan, as determined in accordance with the
applicable provisions of the related Servicing Agreement; provided that (i)
with respect to any Mortgage Loan or REO Property repurchased, substituted or
sold pursuant to or as contemplated hereunder, or pursuant to the applicable
provisions of the related Servicing Agreement, "Liquidation Proceeds" shall
also include amounts realized in connection with such repurchase, substitution
or sale and (ii) with respect to a defaulted Additional Collateral Mortgage
Loan, "Liquidation Proceeds" shall also include the amount realized on the
related Additional Collateral with respect to such Mortgage Loan.
"LOAN RATE": With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan from time to time in accordance
with the provisions of the related Mortgage Note.
"LOAN-TO-COLLATERAL VALUE RATIO": With respect to each Mortgage Loan
and any date of determination, a fraction, expressed as a percentage, the
numerator of which is the Principal Balance of the Mortgage Loan at such date
of determination less the Base Value of any related Additional Collateral and
the denominator of which is the Value of the related Mortgaged Property.
"LOAN-TO-VALUE RATIO": With respect to each Mortgage Loan and any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the Principal Balance of the Mortgage Loan at such date of
determination and the denominator of which is the Value of the related
Mortgaged Property.
"LOSS MITIGATION ADVISOR": The Murrayhill Company, a Colorado
corporation, and its successors and assigns.
"LOST NOTE AFFIDAVIT": With respect to any Mortgage Loan as to which
the original Mortgage Note has been permanently lost or destroyed and has not
been replaced, an affidavit from the Seller certifying that the original
Mortgage Note has been lost, misplaced or destroyed (together with a copy of
the related Mortgage Note and indemnifying the Trust against any loss, cost or
liability resulting from the failure to deliver the original Mortgage Note) in
the form of Exhibit H hereto.
"LOWER TIER REMIC": As defined in the Preliminary Statement.
"LOWER TIER REMIC REGULAR INTEREST": As defined in the Preliminary
Statement.
"MAJORITY CERTIFICATEHOLDERS": The Holders of Certificates evidencing
at least 51% of the Voting Rights.
"MASTER SERVICER": Washington Mutual Mortgage Securities Corp., or
any successor Master Servicer appointed as herein provided.
"MASTER SERVICER'S ACCOUNT." The account designated as such and
described in Section 3.10(a).
16
"MASTER SERVICER EVENT OF TERMINATION": In respect of the Master
Servicer, one or more of the events (howsoever described) set forth in Section
7.01 hereof as an event or events upon the occurrence and continuation of
which the Trustee is entitled to terminate the appointment of such Master
Servicer.
"MASTER SERVICER REMITTANCE DATE": No later than the Close of
Business New York City time one Business Day after each Servicer 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 Monthly Payment or other payment or recovery
with respect to such Mortgage Loan.
"MASTER SERVICING FEE RATE": 0.02% per annum.
"MAXIMUM LOAN RATE": With respect to each Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Loan Rate
thereunder.
"MERS": Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
"MERS MORTGAGE LOAN": Any Mortgage Loan registered with MERS on the
MERS System.
"MERS(R) SYSTEM": The system of recording transfers of mortgages
electronically maintained by MERS.
"MIN": The Mortgage Identification Number for any MERS Mortgage Loan.
"MOM LOAN": Any Mortgage Loan as to which MERS is acting as
mortgagee, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns.
"MONTHLY INTEREST DISTRIBUTABLE AMOUNT": With respect to each Class
of Certificates and any Distribution Date, the amount of interest accrued
during the related Accrual Period at the related Pass-Through Rate on the
Class Certificate Principal Balance or Class Certificate Notional Balance, as
applicable, of that Class immediately prior to that Distribution Date.
"MONTHLY PAYMENT": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and interest on such Mortgage Loan that is
payable by the related Mortgagor from time to time under the related Mortgage
Note, determined, for the purposes of this Agreement: (a) after giving effect
to (i) any Deficient Valuation and/or Debt Service Reduction with respect to
such Mortgage Loan and (ii) any reduction in the amount of interest
collectible from the related Mortgagor pursuant to the Relief Act; (b) without
giving effect to any extension granted or agreed to by the related Servicer
pursuant to the applicable provisions of the
17
related Servicing Agreement; and (c) on the assumption that all other amounts,
if any, due under such Mortgage Loan are paid when due.
"MOODY'S": ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"MORTGAGE": The mortgage, deed of trust or other instrument creating
a first lien on, or first priority security interest in, a Mortgaged Property
securing a Mortgage Note.
"MORTGAGE FILE": The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"MORTGAGE LOAN": Each mortgage (including Cooperative Loans) loan
transferred and assigned to the Trustee pursuant to Section 2.01 or Section
2.03(d) hereof as from time to time held as a part of the Trust Fund, the
Mortgage Loans so held being identified in the Mortgage Loan Schedule.
"MORTGAGE LOAN PURCHASE AGREEMENT": The Agreement between the Seller
and the Depositor, dated as of October 1, 2001, regarding the transfer of the
Mortgage Loans by the Seller to or at the direction of the Depositor.
"MORTGAGE LOAN SCHEDULE": As of any date, the list of Mortgage Loans
included in the Trust Fund on such date, attached hereto as Schedule I. The
Mortgage Loan Schedule shall be prepared by the Seller and shall set forth the
following information with respect to each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property including the
state and five-digit ZIP code;
(iv) a code indicating whether the Mortgaged Property was
represented by the borrower, at the time of origination, as being
owner-occupied;
(v) a code indicating whether the Residential Dwelling
constituting the Mortgaged Property is (a) a detached single family dwelling,
(b) a dwelling in a planned unit development, (c) a condominium unit, (d) a two-
to four-unit residential property, (e) a townhouse or (f) other type of
Residential Dwelling;
(vi) if the related Mortgage Note permits the borrower to make
Monthly Payments of interest only for a specified period of time, (a) the
original number of such specified Monthly Payments and (b) the remaining number
of such Monthly Payments as of the Cut-Off Date;
(vii) the original months to maturity;
18
(viii) the stated remaining months to maturity from the Cut-Off
Date based on the original amortization schedule;
(ix) the Loan-to-Value Ratio at origination;
(x) the value of any Additional Collateral at origination;
(xi) the Loan-to-Collateral Value Ratio at origination;
(xii) the Loan Rate in effect immediately following the Cut-Off
Date;
(xiii) the date on which the first Monthly Payment is or was due
on the Mortgage Loan;
(xiv) the stated maturity date;
(xv) the Master Servicing Fee Rate and the Servicing Fee Rate,
if any;
(xvi) whether such loan is an Additional Collateral Mortgage
Loan or an Employee Loan;
(xvii) the last Due Date on which a Monthly Payment was actually
applied to the unpaid Stated Principal Balance;
(xviii) the original principal balance of the Mortgage Loan;
(xix) the Stated Principal Balance of the Mortgage Loan on the
Cut-Off Date and a code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out refinancing);
(xx) the Index and Gross Margin specified in related Mortgage
Note;
(xxi) the next Adjustment Date, if applicable;
(xxii) the Maximum Loan Rate, if applicable;
(xxiii) the Value of the Mortgaged Property;
(xxiv) the sale price of the Mortgaged Property, if applicable;
(xxv) the product code;
(xxvi) Expense Fee Rate therefor;
(xxvii) the Servicer, if any, that is servicing each Mortgage
Loan
The Mortgage Loan Schedule, as in effect from time to time, shall also
set forth the following information with respect to the Mortgage Loans in the
aggregate as of the Cut-Off Date: (1) the number of Mortgage Loans; (2) the
current Principal Balance of the Mortgage
19
Loans; (3) the weighted average Loan Rate of the Mortgage Loans; and (4) the
weighted average remaining months to maturity of the Mortgage Loans. The
Mortgage Loan Schedule shall be amended from time to time by the Seller in
accordance with the provisions of this Agreement.
"MORTGAGE NOTE": The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"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.
"MSDWCC": ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Credit Corporation, a Delaware
corporation, and its successors and assigns.
"NET LIQUIDATION PROCEEDS": With respect to any Liquidated Mortgage Loan
or any other disposition of related Mortgaged Property (including REO
Property) the related Liquidation Proceeds net of Advances, related Servicing
Advances, Master Servicing Fee, related Servicing Fees and any other accrued
and unpaid servicing fees received and retained in connection with the
liquidation of such Mortgage Loan or Mortgaged Property.
"NET LOAN RATE": With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest equal
to the then applicable Loan Rate for such Mortgage Loan minus the related
Servicing Fee Rate, Master Servicing Fee Rate, Trustee Fee Rate and Retained
Rate, if any.
"NET WAC": With respect to any Distribution Date, the weighted average of
the Net Loan Rates of the Mortgage Loans, weighted on the basis of the related
Principal Balances as of the first day of the month preceding the month in
which such Distribution Date occurs (or, in the case of the first Distribution
Date, as of the Cut-Off Date).
"NONRECOVERABLE ADVANCE": The determination by the Master Servicer in
respect of a delinquent Mortgage Loan that if it were to make an Advance in
respect of thereof, such amount would not be recoverable from any collections or
other recoveries (including Liquidation Proceeds) on such Mortgage Loan.
"OFFICERS' CERTIFICATE": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a vice president
(however denominated), or by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of the Seller or the Depositor,
as applicable.
"ONE-MONTH LIBOR": The average of interbank offered rates for one month
U.S. dollar deposits in the London market based on quotations of major banks.
20
"ONE-MONTH LIBOR INDEXED": Indicates a Mortgage Loan that has an
adjustable Loan Rate calculated on the basis of the One-Month LIBOR Index.
"ONE-YEAR CMT": The weekly average yield on United States Treasury
securities adjusted to a constant maturity of one year as published by the
Federal Reserve Board in Statistical Release H.15(519).
"ONE-YEAR CMT INDEXED": Indicates a Mortgage Loan that has an adjustable
Loan Rate calculated on the basis of the One-Year CMT Index.
"ONE-YEAR LIBOR": The average of interbank offered rates for one-year
U.S. dollar deposits in the London market based on quotations of major banks.
"ONE-YEAR LIBOR INDEXED": Indicates a Mortgage Loan that has an
adjustable Loan Rate calculated on the basis of the One-Year LIBOR Index.
"OPINION OF COUNSEL": A written opinion of counsel, who may, without
limitation, be a salaried counsel for the Depositor or the Seller, acceptable
to the Trustee, except that any opinion of counsel relating to (a) the
qualification of the Upper Tier REMIC or Lower Tier REMIC as a REMIC or (b)
compliance with the REMIC Provisions must be an opinion of Independent
counsel.
"ORIGINAL APPLICABLE CREDIT SUPPORT PERCENTAGE": With respect to each
Class of Subordinate Certificates, the corresponding percentage set forth
below opposite its Class designation:
Class B-1 3.25%
Class B-2 2.25
Class B-3 1.45
Class B-4 0.80
Class B-5 0.55
Class B-6 0.35
"ORIGINAL CLASS CERTIFICATE PRINCIPAL BALANCE": With respect to each Class
of Certificates, other than the Class LTA-R or Class X Certificates, the
corresponding aggregate amount set forth opposite the Class designation of such
Class in the Preliminary Statement.
"ORIGINAL CLASS CERTIFICATE NOTIONAL BALANCE" With respect to the Class X
Certificates, $495,259,000.
"ORIGINAL SUBORDINATED PRINCIPAL BALANCE": The aggregate of the Original
Class Certificate Principal Balances of the Classes of Subordinate
Certificates.
"OTS": The Office of Thrift Supervision.
21
"OUTSTANDING MORTGAGE LOAN": As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero, that was not the subject of a
prepayment in full prior to such Due Date and that did not become a Liquidated
Mortgage Loan prior to such Due Date.
"OWNERSHIP INTEREST": As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as
the Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial, as owner or as pledgee.
"PASS-THROUGH RATE": With respect to each Class of Certificates and any
Distribution Date, the rate set forth for such Class in the Preliminary
Statement.
"PAYING AGENT": Any paying agent appointed pursuant to Section 5.05
hereof.
"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 Prepayment
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
Master Servicer Remittance 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 Net Loan 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.
"PAYOFF PERIOD": With respect to any Distribution Date, the period from
the first day of the month of such Distribution Date through the fourteenth
day of such month.
"PERCENTAGE INTEREST": With respect to any Certificate other than a
Residual Certificate, a fraction, expressed as a percentage, the numerator of
which is the Initial Certificate Principal Balance or Initial Certificate
Notional Balance, as applicable, represented by such Certificate and the
denominator of which is the Original Class Certificate Principal Balance or
Original Class Certificate Notional Balance, as applicable, of the related
Class. With respect to each Class of Residual Certificates, 100%.
"PERMITTED INVESTMENTS": Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued or managed by the Depositor, the Seller, the Trustee or any of
their respective Affiliates or for which an Affiliate of the Trustee serves as
an advisor:
22
(i) direct obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any agency
or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) (A) demand and time deposits in, certificates of deposit of, bankers'
acceptances issued by or federal funds sold by any depository
institution or trust company (including the Trustee or its agent
acting in their respective commercial capacities) incorporated under
the laws of the United States of America or any state thereof and
subject to supervision and examination by federal and/or state
authorities, so long as, at the time of such investment or
contractual commitment providing for such investment, such depository
institution or trust company or its ultimate parent has a short-term
uninsured debt rating in one of the two highest available rating
categories of the Rating Agency and (B) any other demand or time
deposit or deposit which is fully insured by the FDIC;
(iii) repurchase obligations with respect to any security described in
clause (i) above and entered into with a depository institution or
trust company (acting as principal) rated A or higher by the Rating
Agency;
(iv) securities bearing interest or sold at a discount that are issued by
any corporation incorporated under the laws of the United States of
America, the District of Columbia or any State thereof and that are
rated by the Rating Agency in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) that is rated by the
Rating Agency in its highest short-term unsecured debt rating
available at the time of such investment;
(vi) units of money market funds (which may be 12b-1 funds, as
contemplated by the Commission under the Investment Company Act of
1940) registered under the Investment Company Act of 1940 including
funds managed or advised by the Trustee or an affiliate thereof
having the highest applicable rating from the Rating Agency; and
(vii) if previously confirmed in writing to the Trustee, any other demand,
money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agency in writing as a
permitted investment of funds backing securities having ratings
equivalent to its highest initial ratings of the Senior Certificates;
provided, however, that no instrument described hereunder shall evidence
either the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying
obligations.
"PERMITTED TRANSFEREE": Any Transferee of a Residual Certificate other
than a Disqualified Organization or a non-U.S. Person.
23
"PERSON": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"PHYSICAL CERTIFICATES": The Private Certificates and the Residual
Certificates.
"POOL BALANCE": As to any Distribution Date, the aggregate of the
Principal Balances, as of the Due Date in the month preceding the month in
which such Distribution Date occurs, of the Mortgage Loans that were
Outstanding Mortgage Loans on that Due Date.
"PREPAYMENT ASSUMPTION": 25% CPR, as defined in the Prospectus
Supplement.
"PREPAYMENT PERIOD": With respect to any Distribution Date other than the
initial Distribution Date, the period commencing on the 15th day of the month
preceding the month in which such Distribution Date occurs and ending on the
14th day of the month in which such Distribution Date occurs. With respect to
the initial Distribution Date, the period commencing on the Cut-off Date and
ending on November 14, 2001.
"PRIMARY INSURANCE POLICY": Mortgage guaranty insurance, if any, on an
individual Mortgage Loan, as evidenced by a policy or certificate.
"PRINCIPAL BALANCE": As to any Mortgage Loan, other than a Liquidated
Mortgage Loan, and any day, the related Cut-Off Date Principal Balance, minus
all collections or Advances credited against the Principal Balance of such
Mortgage Loan. For purposes of this definition, a Liquidated Mortgage Loan
shall be deemed to have a Principal Balance equal to the Principal Balance of
the related Mortgage Loan as of the final recovery of related Liquidation
Proceeds and a Principal Balance of zero thereafter. As to any REO Property
and any day, the Principal Balance of the related Mortgage Loan immediately
prior to such Mortgage Loan becoming REO Property.
"PRINCIPAL DISTRIBUTION AMOUNT": With respect to any Distribution Date,
the sum of (a) each scheduled payment of principal collected or advanced on
the Mortgage Loans (before taking into account any Deficient Valuations or
Debt Service Reductions) by the Master Servicer in respect of the related Due
Period, (b) that portion of the Purchase Price, representing principal of any
repurchased Mortgage Loan, deposited to the Collection Account during the
related Prepayment Period, (c) the principal portion of any related
Substitution Adjustments deposited in the Collection Account during the
related Prepayment Period, (d) the principal portion of all Insurance Proceeds
received during the related Prepayment Period with respect to Mortgage Loans
that are not yet Liquidated Mortgage Loans, (e) the principal portion of all
Net Liquidation Proceeds received during the related Prepayment Period with
respect to Liquidated Mortgage Loans, (f) the principal portion of all partial
and full principal prepayments of Mortgage Loans applied by the Master
Servicer during the related Prepayment Period, and (g) on the Distribution
Date on which the Trust is to be terminated pursuant to Section 10.01 hereof,
that portion of the Termination Price in respect of principal.
"PRINCIPAL PREPAYMENT": Any payment of principal made by the Mortgagor on
a Mortgage Loan that is received in advance of its scheduled Due Date and that
is not
24
accompanied by an amount of interest representing the full amount of scheduled
interest due on any Due Date in any month or months subsequent to the month of
prepayment.
"PRIVATE CERTIFICATES": The Class B-4, Class B-5, Class B-6 and Class
LTA-R Certificates.
"PRIVATE PLACEMENT MEMORANDUM": The Private Placement Memorandum dated
October 29, 2001 relating to the initial sale of the Class B-4, Class B-5 and
Class B-6 Certificates.
"PRO RATA SENIOR PERCENTAGE": With respect to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Certificate Principal Balances of the Classes of Senior Certificates
immediately prior to such Distribution Date and the denominator of which is
the Pool Balance for such Distribution Date.
"PRO RATA SHARE": As to any Distribution Date and any Class of
Subordinate Certificates, the portion of the Subordinated Principal
Distribution Amount allocable to such Class, equal to the product of the (a)
Subordinated Principal Distribution Amount on such date and (b) a fraction,
the numerator of which is the related Class Certificate Principal Balance of
that Class and the denominator of which is the aggregate of the Class
Certificate Principal Balances of all the Classes of Subordinate Certificates.
"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, together with the accompanying
prospectus dated October 29, 2001, relating to each Class.
"PROSPECTUS SUPPLEMENT": That certain Prospectus Supplement dated October
29, 2001 relating to the initial sale of the Senior Certificates and the Class
B-1, Class B-2 and Class B-3 Certificates.
"PURCHASE PRICE": With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03, Section 3.16 or
Section 10.01 hereof, and as confirmed by an Officers' Certificate from the
Seller to the Trustee, an amount equal to the sum of (i) 100% of the Principal
Balance thereof as of the date of purchase (or such other price as provided in
Section 10.01), plus (ii) in the case of (x) a Mortgage Loan, accrued interest
on such Principal Balance at the applicable Net Loan Rate from the Due Date as
to which interest was last covered by a payment by the Mortgagor or an Advance
by the Master Servicer, which payment or Advance had as of the date of
purchase been distributed pursuant to Section 4.01 hereof, through the end of
the calendar month in which the purchase is to be effected, and (y) an REO
Property, the sum of (1) accrued interest on such Principal Balance at the
applicable Net Loan Rate from the Due Date as to which interest was last
covered by a payment by the Mortgagor or an Advance by the Master Servicer
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, plus (2) REO Imputed Interest for
such REO Property for each calendar month commencing with the calendar month
in which such REO Property was acquired and ending with the calendar month in
which such purchase is to be effected, net of the total of all net rental
income, Insurance
25
Proceeds, Liquidation Proceeds and Advances that as of the date of purchase
had been distributed as or to cover REO Imputed Interest pursuant to Section
4.04 hereof, plus (iii) any unreimbursed Servicing Advances and Advances and
any unpaid Expense Fees allocable to such Mortgage Loan or REO Property, and
plus (iv) in the case of a Mortgage Loan required to be purchased pursuant to
Section 2.03 hereof, expenses reasonably incurred or to be incurred by the
Trustee in respect of the breach or defect giving rise to the purchase
obligation.
"QUALIFIED INSURER": A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and
each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and
to write the insurance provided by the insurance policy issued by it, approved
as a ▇▇▇▇▇▇ Mae-approved mortgage insurer and having a claims paying ability
rating of at least "AA" or equivalent rating by a nationally recognized
statistical rating organization. Any replacement insurer with respect to a
Mortgage Loan must have at least as high a claims paying ability rating as the
insurer it replaces had on the Closing Date.
"QUALIFIED SUBSTITUTE MORTGAGE LOAN": A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on
the date of such substitution, (i) have an outstanding principal balance,
after application of all scheduled payments of principal and interest due
during or prior to the month of substitution, not in excess of, and not more
than 5% less than, the Principal Balance of the Deleted Mortgage Loan as of
the Due Date in the calendar month during which the substitution occurs, (ii)
have a maximum loan rate not less than the Maximum Loan Rate of the Deleted
Mortgage Loan, (iii) have a gross margin equal to or greater than the Gross
Margin of the Deleted Mortgage Loan, (iv) have the same Index as the Deleted
Mortgage Loan, (v) have its next adjustment date not more than two months
after the next Adjustment Date of the Deleted Mortgage Loan, (vi) have a
remaining term to maturity not greater than (and not more than one year less
than) that of the Deleted Mortgage Loan, (vii) be current as of the date of
substitution, (viii) have a loan-to-value ratio and a loan-to-collateral value
ratio as of the date of substitution equal to or lower than the Loan-to-Value
Ratio and the Loan-to-Collateral Value Ratio, respectively, of the Deleted
Mortgage Loan as of such date, (ix) have been underwritten or re-underwritten
in accordance with the same or substantially similar underwriting criteria and
guidelines as the Deleted Mortgage Loan, (x) is of the same or better credit
quality as the Deleted Mortgage Loan and (xi) conform to each representation
and warranty set forth in Section 2.04 hereof applicable to the Deleted
Mortgage Loan. In the event that one or more mortgage loans are substituted
for one or more Deleted Mortgage Loans, the amounts described in clause (i)
hereof shall be determined on the basis of aggregate principal balances, the
terms described in clause (vi) hereof shall be determined on the basis of
weighted average remaining term to maturity, the loan-to-value ratios
described in clause (viii) hereof shall be satisfied as to each such mortgage
loan and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (x) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate,
as the case may be.
"RATING AGENCY": Moody's, and any successors thereto. If the agency or
its successors shall no longer be in existence, "Rating Agency" shall include
such nationally recognized
26
statistical rating agency, or other comparable Person, as shall have been
designated by the Depositor, notice of which designation shall be given to the
Trustee and the Master Servicer.
"REALIZED LOSS": With respect to any Liquidated Mortgage Loan, the amount
of loss realized equal to the portion of the Principal Balance remaining
unpaid after application of all Net Liquidation Proceeds in respect of such
Liquidated 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 each Distribution Date and all Classes of
Certificates, the last Business Day of the calendar month preceding the month
in which such Distribution Date occurs, except that, for the first
Distribution Date the Record Date shall be the Closing Date.
"REFINANCING MORTGAGE LOAN": Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
"REGULAR CERTIFICATE": Any Class A, Class X, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 or Class B-6 Certificate.
"RELIEF ACT": The Soldiers' and Sailors Civil Relief Act of 1940, as
amended.
"RELIEF ACT REDUCTIONS": With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended Due Period as a result of the
application of the Relief Act, the amount, if any, by which (i) interest
collectible on that Mortgage Loan during such Due Period is less than (ii) one
month's interest on the Principal Balance of such Mortgage Loan at the Loan
Rate for such Mortgage Loan before giving effect to the application of the
Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
"REMIC PROVISIONS": Provisions of the federal income tax law relating to
real estate mortgage investment conduits which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
"REMITTANCE REPORT": As defined in Section 4.04(d).
"RENTS FROM REAL PROPERTY": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT": The account or accounts maintained by a Servicer in respect
of an REO Property pursuant to the related Servicing Agreement.
"REO DISPOSITION": The sale or other disposition of an REO Property on
behalf of the Trust Fund.
27
"REO IMPUTED INTEREST": As to any REO Property, for any calendar month
during which such REO Property was at any time part of the Trust Fund, one
month's interest at the applicable Net Loan Rate on the Principal Balance of
such REO Property (or, in the case of the first such calendar month, of the
related Mortgage Loan if appropriate) as of the Close of Business on the Due
Date in such calendar month.
"REO PRINCIPAL AMORTIZATION": With respect to any REO Property, for any
calendar month, the excess, if any, of (a) the aggregate of all amounts
received in respect of such REO Property during such calendar month, whether
in the form of rental income, sale proceeds (including, without limitation,
that portion of the Termination Price paid in connection with a purchase of
all of the Mortgage Loans and REO Properties pursuant to Section 10.01 hereof
that is allocable to such REO Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to the applicable provisions of the related
Servicing Agreement in respect of the proper operation, management and
maintenance of such REO Property or (ii) payable or reimbursable to the
applicable Servicer pursuant to the applicable provisions of the related
Servicing Agreement for unpaid Master Servicing Fees and Servicing Fees in
respect of the related Mortgage Loan and unreimbursed Servicing Advances and
Advances in respect of such REO Property or the related Mortgage Loan, over
(b) the REO Imputed Interest in respect of such REO Property for such calendar
month.
"REO PROPERTY": A Mortgaged Property acquired by the applicable Servicer
on behalf of the Trust Fund through foreclosure or deed-in-lieu of foreclosure
in accordance with the applicable provisions of the related Servicing
Agreement.
"REQUEST FOR RELEASE": A release signed by a Servicing Officer, in the
form of Exhibit F attached hereto.
"RESIDENTIAL DWELLING": Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project, (iv) a manufactured home,
(v) a cooperative unit or (vi) a detached one-family dwelling in a planned
unit development, none of which is a mobile home.
"RESIDUAL CERTIFICATES": Any of the Class A-R or Class LTA-R
Certificates.
"RESIDUAL FUNDS": As defined in Section 3.12(c) hereof.
"RESPONSIBLE OFFICER": When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the Chairman
or Vice Chairman of the Executive or Standing Committee of the Board of
Directors or Trustees, the President, any vice president, any assistant vice
president, the Secretary, any assistant secretary, the Treasurer, any
assistant treasurer, the Cashier, any assistant cashier, any trust officer or
assistant trust officer, the Controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and, with respect to a
particular matter, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
28
"RESTRICTED CLASSES": As defined in Section 4.01(e).
"RETAINED INTEREST": As to any Employee Loans and each Distribution Date,
interest accrued on the principal balance thereof at the Retained Rate.
"RETAINED RATE": As to any Employee Loan as to which the Loan Rate
payable by the Mortgagor thereof has been increased in accordance with its
terms by reason of the change of employment of such Mortgagor, a per annum
rate equal to the amount of such increase.
"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.
"SELLER": ▇▇▇▇▇▇▇▇▇, in its capacity as seller under this Agreement.
"SENIOR CERTIFICATE": Any one of the Class A, Class A-R or Class X
Certificates.
"SENIOR CERTIFICATEHOLDER": Any Holder of a Senior Certificate.
"SENIOR PERCENTAGE": Except as described below, with respect to any
Distribution Date before November 2011, 100%. The Senior Percentage for any
Distribution Date occurring (i) before November 2011 but in or after October
2004 on which the Two Times Test is satisfied, or (ii) in or after November
2011, is the Pro Rata Senior Percentage. If the Two Times Test is satisfied
prior to October 2004, the Senior Percentage is the Pro Rata Senior Percentage
plus 50% of an amount equal to 100% minus the related Pro Rata Senior
Percentage.
"SENIOR PREPAYMENT PERCENTAGE": With respect to any Distribution Date
during the ten years beginning on the first Distribution Date, 100%. Except as
provided herein, the Senior Prepayment Percentage for any Distribution Date
occurring on or after the tenth anniversary of the first Distribution Date
will be as follows: (i) from November 2011 through October 2012, the related
Senior Percentage plus 70% of the related Subordinate Percentage for that
Distribution Date; (ii) from November 2012 through October 2013, the related
Senior Percentage plus 60% of the related Subordinate Percentage for that
Distribution Date; (iii) from November 2013 through October 2014, the related
Senior Percentage plus 40% of the related Subordinate Percentage for that
Distribution Date; (iv) from November 2014 through October 2015, the related
Senior Percentage plus 20% of the related Subordinate Percentage for that
Distribution Date; and (v) from and after November 2015, the related Senior
Percentage for that Distribution Date; provided, however, that there shall be
no reduction in the Senior Prepayment Percentage unless both Step Down
Conditions are satisfied; and provided, further, that if on any such
Distribution Date the Pro Rata Senior Percentage exceeds the initial Pro Rata
Senior Percentage, the Senior Prepayment Percentage for that Distribution Date
will again equal 100%.
Notwithstanding the above, if on any Distribution Date the Two Times Test
is satisfied, the Senior Prepayment Percentage will equal the related Senior
Percentage for such Distribution Date.
29
"SENIOR PRINCIPAL DISTRIBUTION AMOUNT": With respect to any Distribution
Date, the sum of:
(1) the Senior Percentage of all amounts described in clauses (a)
through (d) of the definition of "Principal Distribution Amount" for that
Distribution Date;
(2) with respect to each Mortgage Loan which became a Liquidated
Mortgage Loan during the related Prepayment Period, the lesser of
(x) the related Senior Percentage of the Stated Principal
Balance of that Mortgage Loan and
either
(y) the related Senior Prepayment Percentage of the amount of
the Net Liquidation Proceeds allocable to principal
received with respect to that Mortgage Loan
or
(z) if an Excess Loss was sustained with respect to such
Liquidated Mortgage Loan during such related Prepayment
Period, the related Senior Percentage of the amount of
Net Liquidation Proceeds allocable to principal received
with respect to that Mortgage Loan; and
(3) the related Senior Prepayment Percentage of the amounts described
in clause (f) of the definition of "Principal Distribution Amount";
provided, however, that if a Bankruptcy Loss that is an Excess Loss is
sustained with respect to any Mortgage Loan that is not a Liquidated Mortgage
Loan, such Senior Principal Distribution Amount will be reduced on such
Distribution Date by the related Senior Percentage of the principal portion of
such Bankruptcy Loss.
"SERVICER": Any Person with which the Master Servicer has entered into a
Servicing Agreement.
"SERVICER REMITTANCE DATE": The day in each month on which a Servicer is
required to remit payments to the account maintained by the Master Servicer,
as specified in the related Servicing Agreement, which is the last Business
Day before the 21st day of each month.
"SERVICING ACCOUNT": The account or accounts created and maintained
pursuant to Section 3.08.
"SERVICING ADVANCES": With respect to the Master Servicer, all customary,
reasonable and necessary "out of pocket" costs and expenses (including
reasonable attorneys' fees and expenses) incurred by the Master Servicer in
the performance of its servicing obligations hereunder, including, but not
limited to, the cost of (i) the preservation, restoration, inspection
30
and protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of
the REO Property and (iv) compliance with the obligations under Sections 3.01,
3.09, 3.16, and 3.23.
"SERVICING AGREEMENT": The written contract between the Master Servicer
and a Servicer relating to servicing and administration of Mortgage Loans as
provided in Section 3.02.
"SERVICING FEE": With respect to each Servicer and each Mortgage Loan
serviced by such Servicer and for any calendar month, the fee payable to such
Servicer determined pursuant to the related Servicing Agreement.
"SERVICING FEE RATE": With respect to each Mortgage Loan, the per annum
servicing fee rate set forth on the Mortgage Loan Schedule.
"SERVICING OFFICER": Any officer of a Master Servicer or Servicer
involved in, or responsible for, the administration and servicing of Mortgage
Loans, whose name and specimen signature appear on a list of servicing
officers furnished by the Master Servicer to the Trustee and the Depositor on
the Closing Date, as such list may from time to time be amended.
"SERVICING STANDARD": The standards set forth in Section 3.01.
"SIGNIFICANT MODIFICATION": As defined in Section 4.06.
"SIGNIFICANT MODIFICATION LOAN": As defined in Section 4.06.
"SIX-MONTH LIBOR": The average of interbank offered rates for six-month
U.S. dollar deposits in the London market based on quotations of major banks.
"SIX-MONTH LIBOR INDEXED": Indicates a Mortgage Loan that has an
adjustable Loan Rate calculated on the basis of the Six-Month LIBOR Index.
"SPECIAL HAZARD COVERAGE TERMINATION DATE": The date on which the Special
Hazard Loss Coverage Amount is reduced to zero.
"SPECIAL HAZARD LOSS": Any Realized Loss suffered by a Mortgaged Property
on account of direct physical loss but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to
be maintained with respect to such Mortgaged Property pursuant to the
applicable provisions of the related Servicing Agreement to the extent of the
amount of such loss covered thereby, or (ii) any loss caused by or resulting
from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, a Servicer or any of their agents or employees (without regard to any
portion of the loss not covered by any errors and omissions policy);
31
(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for the
ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and whether
such loss be direct or indirect, proximate or remote or be in whole or in part
caused by, contributed to or aggravated by a peril covered by the definition
of the term "Special Hazard Loss";
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending or
expected attack:
1. by any government or sovereign power, de jure or de facto, or
by any authority maintaining or using military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority or
risks of contraband or illegal transportation or trade.
"SPECIAL HAZARD LOSS COVERAGE AMOUNT": With respect to the first
Distribution Date, $7,200,000. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the Principal Balances of the Mortgage Loans, (ii) twice the
Principal Balance of the largest Mortgage Loan and (iii) the aggregate of the
Principal Balances of the Mortgage Loans secured by Mortgaged Properties
located in the single five-digit ZIP code area in the State of California
having the highest aggregate Principal Balance of any such ZIP code area and
(b) the Special Hazard Loss Coverage Amount as of the Closing Date less the
amount, if any, of Special Hazard Losses allocated to the Certificates since
the Closing Date; provided, however, that the Special Hazard Loss Coverage
Amount may also be reduced pursuant to a letter from the Rating Agency to the
Trustee to the effect that any such reduction will not result in the
downgrading of the then current ratings assigned by such Rating Agency to the
Classes of Senior Certificates. All Principal Balances for the purpose of this
definition will be calculated as of the first day of the calendar month
preceding the month of such Distribution Date after giving effect to scheduled
payments on the Mortgage Loans then due, whether or not paid.
"SPECIAL HAZARD MORTGAGE LOAN": A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
"STARTUP DAY": As defined in Section 9.01(b) hereof.
32
"STATED PRINCIPAL BALANCE": With respect to any Mortgage Loan: (a) as of
the Distribution Date in November 2001, the outstanding Principal Balance of
such Mortgage Loan as of the Cut-Off Date, (b) thereafter as of any date of
determination up to and including the Distribution Date on which the proceeds,
if any, of a Liquidation Event with respect to such Mortgage Loan would be
distributed, the outstanding principal balance of such Mortgage Loan as of the
Cut-Off Date, as shown in the Mortgage Loan Schedule, minus, in the case of
each Mortgage Loan, the sum of (i) the principal portion of each Monthly
Payment due on a Due Date subsequent to the Cut-Off Date, whether or not
received, (ii) all Principal Prepayments received after the Cut-Off Date, to
the extent distributed pursuant to Section 4.01 before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds applied
by the applicable Servicer as recoveries of principal in accordance with the
applicable provisions of the related Servicing Agreement, to the extent
distributed pursuant to Section 4.01 before such date of determination, and
(iv) any Realized Loss incurred with respect thereto as a result of a
Deficient Valuation made during or prior to the Due Period for the most recent
Distribution Date preceding such date of determination; and (c) as of any date
of determination subsequent to the Distribution Date on which the proceeds, if
any, of a Liquidation Event with respect to such Mortgage Loan would be
distributed, zero. With respect to any REO Property: (x) as of any date of
determination up to and including the Distribution Date on which the proceeds,
if any, of a Liquidation Event with respect to such REO Property would be
distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of the Trust Fund, minus the aggregate amount of REO
Principal Amortization in respect of such REO Property for all previously
ended calendar months, to the extent distributed pursuant to Section 4.01
before such date of determination; and (y) as of any date of determination
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
"STEP DOWN CONDITIONS": As of the first Distribution Date as to which any
decrease in any Senior Prepayment Percentage applies, (i) the outstanding
Principal Balance of all Mortgage Loans 60 days or more Delinquent (including
Mortgage Loans in REO and foreclosure) (averaged over the preceding six month
period), as a percentage of the aggregate of the Class Certificate Principal
Balances of the Classes of Subordinate Certificates on such Distribution Date,
does not equal or exceed 50% and (ii) cumulative Realized Losses with respect
to the Mortgage Loans do not exceed:
o for the Distribution Date on the tenth anniversary of the first
Distribution Date, 30% of the aggregate Certificate Principal
Balance of the Subordinate Certificates as of the Closing Date,
o for the Distribution Date on the eleventh anniversary of the first
Distribution Date, 35% of the aggregate Certificate Principal
Balance of the Subordinate Certificates as of the Closing Date,
o for the Distribution Date on the twelfth anniversary of the first
Distribution Date, 40% of the aggregate Certificate Principal
Balance of the Subordinate Certificates as of the Closing Date,
33
o for the Distribution Date on the thirteenth anniversary of the first
Distribution Date, 45% of the aggregate Certificate Principal
Balance of the Subordinate Certificates as of the Closing Date, and
o for the Distribution Date on the fourteenth anniversary of the first
Distribution Date, 50% of the aggregate Certificate Principal
Balance of the Subordinate Certificates as of the Closing Date.
"SUBORDINATE CERTIFICATE": Any one of the Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 or Class B-6 Certificates.
"SUBORDINATE PERCENTAGE": With respect to any Distribution Date, the
difference between 100% and the Senior Percentage for such Distribution Date.
"SUBORDINATED PREPAYMENT PERCENTAGE": With respect to any Distribution
Date, the difference between 100% and the Senior Prepayment Percentage for
that Distribution Date.
"SUBORDINATE PRINCIPAL DISTRIBUTION AMOUNT": With respect to any
Distribution Date, an amount equal to the sum of:
(1) the Subordinate Percentage of all amounts described in clauses
(a) through (d) of the definition of "Principal Distribution Amount" for
that Distribution Date;
(2) with respect to each Mortgage Loan that became a Liquidated
Mortgage Loan during the related Prepayment Period the amount of the Net
Liquidation Proceeds allocated to principal received with respect thereto
remaining after application thereof pursuant to clause (2) of the
definition of "Senior Principal Distribution Amount" for that
Distribution Date, up to the Subordinate Percentage of the Stated
Principal Balance of such Mortgage Loan; and
(3) the Subordinated Prepayment Percentage of all amounts described
in clause (f) of the definition of "Principal Distribution Amount" for
that Distribution Date;
provided, however, that if a Bankruptcy Loss that is an Excess Loss is
sustained with respect to any Mortgage Loan that is not a Liquidated Mortgage
Loan, such Subordinated Principal Distribution Amount will be reduced on such
Distribution Date by the Subordinate Percentage of the principal portion of
such Bankruptcy Loss.
"SUBSTITUTION ADJUSTMENT": As defined in Section 2.03(d) hereof.
"SURETY": Ambac Assurance Corporation (formerly known as AMBAC Indemnity
Corporation), or any successor thereto, as issuer of the Certificate Guaranty
Surety Bond.
"TAX RETURNS": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
the REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be
filed on behalf of each of the Upper Tier REMIC and Lower Tier REMIC under the
REMIC Provisions, together with any and all other
34
information reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal,
state or local tax laws.
"TERMINATION PRICE": As defined in Section 10.01(a) hereof.
"▇▇▇▇▇▇▇▇▇": ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., a Delaware corporation,
and its successors and assigns..
"THREE-YEAR CMT": The weekly average yield on United States Treasury
securities adjusted to a constant maturity of three years as published by the
Federal Reserve Board in Statistical Release H.15(519).
"THREE-YEAR CMT INDEXED": Indicates a Mortgage Loan that has an
adjustable Loan Rate calculated on the basis of the Three-Year CMT Index.
"TRANSFER": Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
"TRANSFER AFFIDAVIT": As defined in Section 5.02(e)(ii) hereof.
"TRANSFEREE": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"TRUST": ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1, the Delaware
business trust created hereunder.
"TRUST FUND": The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with
respect to which a REMIC election is to be made, such Trust Fund consisting
of: (i) such Mortgage Loans as from time to time are subject to this
Agreement, together with the Mortgage Files relating thereto, and together
with all collections thereon and proceeds thereof, (ii) any REO Property,
together with all collections thereon and proceeds thereof, (iii) the
Trustee's rights with respect to the Mortgage Loans under all insurance
policies required to be maintained pursuant to this Agreement and any proceeds
thereof, (iv) the Depositor's rights under the Mortgage Loan Purchase
Agreement (including any security interest created thereby); (v) the
Depositor's security interest in the Additional Collateral, (vi) the
Collection Account, the Distribution Account (subject to the last sentence of
this definition), any REO Account and such assets that are deposited therein
from time to time and any investments thereof, together with any and all
income, proceeds and payments with respect thereto, (vii) the Certificate
Guaranty Surety Bond with respect to the Additional Collateral Mortgage Loans
conveyed to the Seller from MSDWCC, (viii) all right, title and interest of
the Depositor in and to each security or pledge agreement in respect of
Additional Collateral and (ix) all right, title and interest of the Seller in
and to each of the Servicing Agreements. Notwithstanding the foregoing,
however, the Trust Fund specifically excludes (1) all payments and other
collections of interest and principal due on the Mortgage Loans on or before
the Cut-Off Date and principal received before the Cut-Off Date (except any
principal collected as part of a payment due after the Cut-Off Date), (2) all
income and gain realized from Permitted Investments of funds on deposit in the
Collection Account and the Distribution
35
Account (other than Residual Funds), (3) any Retained Interest, (4) any Payoff
Earnings and (5) prepayment penalties collected on the Mortgage Loans.
"TRUSTEE": Bankers Trust Company of California, N.A., a national banking
association, or any successor trustee appointed as herein provided.
"TRUSTEE FEE": As to any Distribution Date, an amount equal to
one-twelfth of the Trustee Fee Rate multiplied by the aggregate of the
Principal Balances of all the Mortgage Loans as of the beginning of the
related Due Period.
"TRUSTEE FEE RATE": 0.005% per annum.
"TRUSTEE'S PORTION": As to any Distribution Date, a fraction, the
numerator of which is equal to one, and the denominator of which is the actual
number of days that amounts on deposit in the Distribution Account have been
invested during the month of such Distribution Date.
"TWO TIMES TEST": As to any Distribution Date, (i) the Aggregate
Subordinate Percentage is at least two times the Aggregate Subordinate
Percentage as of the Closing Date; (ii) the aggregate of the Principal
Balances of all Mortgage Loans Delinquent 60 days or more (including Mortgage
Loans in REO and foreclosure) (averaged over the preceding six-month period),
as a percentage of the aggregate of the Class Certificate Principal Balances
of the Subordinate Certificates, does not equal or exceed 50%; and (iii)
cumulative Realized Losses do not exceed 30% of the Original Subordinated
Principal Balance.
"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 Loan 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.
"UNDERWRITER'S EXEMPTION": Prohibited Transaction Exemption 97-34, 62
Fed. Reg. 39021 (1997), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
"UNINSURED CAUSE": Any cause of damage to a Mortgaged Property such that
the complete restoration of such property is not fully reimbursable by the
hazard insurance policies required to be maintained pursuant to Section 3.14.
"UNITED STATES PERSON" or "U.S. PERSON": A citizen or resident of the
United States, a corporation, partnership or other entity treated as a
corporation or partnership for federal income tax purposes (other than a
partnership that is not treated as a U.S. Person pursuant to any applicable
Treasury regulations) created or organized in, or under the laws of, the
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇
any state thereof or the District of Columbia, or an estate the income of
which from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with
the conduct of a trade or business within the United States, or 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 United States persons have
authority to control all substantial decisions of the trust. The term "United
States" shall have the meaning set forth in Section 7701 of the Code or
successor provisions.
"UNPAID INTEREST SHORTFALL AMOUNT": With respect to each Class of
Certificates and (i) the first Distribution Date, zero, and (ii) any
Distribution Date after the first Distribution Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Distributable Amount for that
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for that Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on that Class
in respect of interest pursuant to clause (a) of this definition on the
preceding Distribution Date.
"UPPER TIER REMIC": As defined in the Preliminary Statement.
"VALUE": With respect to any Mortgage Loan and the related Mortgaged
Property, the lesser of:
(i) the value of such Mortgaged Property as determined by an
appraisal made for the originator of the Mortgage Loan at the time of
origination of the Mortgage Loan by an appraiser who met the minimum
requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac; and
(ii) the purchase price paid for the related Mortgaged Property by
the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a Refinancing Mortgage Loan, such value
of the Mortgaged Property is based solely upon the value determined by an
appraisal made for the originator of such Refinancing Mortgage Loan at the time
of origination by an appraiser who met the minimum requirements of ▇▇▇▇▇▇ Mae
and ▇▇▇▇▇▇▇ Mac.
"VOTING RIGHTS": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. For so long as the Class X
Certificates are outstanding, 5% of the voting rights shall be allocated to
the Class X Certificates and the remainder of the voting rights (or 100%
thereof when the Class X Certificates are no longer outstanding) shall be
allocated among the Classes of Certificates other than the Class X
Certificates, pro rata, based on a fraction, expressed as a percentage, the
numerator of which is the Class Certificate Principal Balance of such Class
and the denominator of which is the aggregate of the Class Certificate
Principal Balances then outstanding; provided, however, that when none of the
Regular Certificates is outstanding, 50% of the voting rights shall be
allocated to the Holder of each Class of Residual Certificates. The voting
rights allocated to a Class of Certificates shall be allocated among all
Holders of such Class, pro rata, based on a fraction the numerator of which is
the Certificate Principal Balance or Certificate Notional Balance of each
Certificate of such Class and the denominator of which is the Class
Certificate Principal Balance or Class Certificate Notional Balance of such
Class; provided, however, that any Certificate registered in the name of
37
the Master Servicer, the Depositor or the Trustee or any of their respective
affiliates shall not be included in the calculation of Voting Rights.
"WRITEDOWN AMOUNT": The reduction described in Section 4.03(c).
SECTION 1.02. Declaration of Trust. (a) The Trust shall be known as
"▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1," in which name the Trustee and
Delaware Trustee may conduct the affairs of the Trust, make and execute
contracts and other instruments on behalf of the Trust and ▇▇▇ and be sued on
behalf of the Trust. The Depositor hereby appoints Bankers Trust (Delaware) as
a co-Trustee of the Trust effective as of the date hereof, to have all the
rights, powers and duties set forth herein and in the DBTA. The Delaware
Trustee and the Trustee are hereby authorized to file the Certificate of Trust
with the Secretary of State pursuant to Section 3810 of the DBTA.
(b) It is the intention of the parties hereto that the Trust
constitutes a business trust under the DBTA and that this Agreement
constitutes the governing instrument of the Trust. Effective as of the date
hereof, the Delaware Trustee shall have all rights, powers and duties set
forth herein and in the DBTA with respect to accomplishing the purposes of the
Trust. It is expressly agreed by the parties hereto that pursuant to Section
3809 of the DBTA, the laws of Delaware, both statutory and common law,
relating to trusts (other than the DBTA) shall not apply to the Trust.
(c) Legal title to all property in the Trust shall be vested at all
times in the Trust as a separate legal entity except where applicable law in
any jurisdiction requires title to any part of the property of the Trust to be
vested in a trustee or trustees, in which case legal title shall be deemed to
be vested in the Trustee, a co-Trustee and/or a separate trustee, as the case
may be.
(d) The Trust shall be located and administered in, the State of
Delaware, California or New York.
(e) (a) The Trust shall not engage in any activities other than
those required or authorized by the terms of this Agreement relating to the
issuance, sale and payment of the Certificates in accordance with their terms,
the acquisition, management, collection and holding of the assets of the Trust
and the collection, investment and distribution of moneys deposited in the
accounts, all in accordance with the provisions hereunder.
(f) In the event of the appointment of a successor Delaware Trustee,
such successor shall cause an amendment to the Certificate of Trust to be
filed with the Delaware Secretary of State in accordance with Section 3810 of
the DBTA, indicating the change of such Delaware Trustee's identity. In
addition, until the termination of the Trust and this Agreement, either the
Trustee or Delaware Trustee shall fulfill the requirements of the DBTA.
Upon the winding up of the Trust, the Trustee shall cause the
Certificate of Trust to be cancelled by filing a certificate of cancellation
with the Delaware Secretary of State.
38
SECTION 1.03. Accounting.
----------
Unless otherwise specified herein, for the purpose of any definition
or calculation, whenever amounts are required to be netted, subtracted or
added or any distributions are taken into account such definition or
calculation and any related definitions or calculations shall be determined
without duplication of such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
-----------------------------
The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey to the Trustee without
recourse for the benefit of the Certificateholders all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in and to (i) each Mortgage Loan (other than the
right to receive any Retained Interest and prepayment penalties thereunder)
identified on the Mortgage Loan Schedule, including the related Cut-Off Date
Principal Balance, all interest due thereon after the Cut-Off Date and all
collections in respect of interest and principal due after the Cut-Off Date;
(ii) any real property that secured each such Mortgage Loan and that has been
acquired by foreclosure or deed in lieu of foreclosure; (iii) the Depositor's
interest in any insurance policies in respect of the Mortgage Loans; (iv) the
Depositor's security interest in the Additional Collateral; (v) all proceeds
of any of the foregoing; and (vi) all other assets included or to be included
in the Trust Fund. Such assignment includes all interest and principal due to
the Depositor or the Master Servicer after the Cut-Off Date with respect to
the Mortgage Loans.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such
assignment, and shall be entitled to exercise all rights of the Depositor
under the Mortgage Loan 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.
In addition, with respect to any Additional Collateral Mortgage Loan, the
Depositor does hereby transfer, assign, set-over and otherwise convey to the
Trustee without recourse (except as provided herein) (i) its rights as
assignee under any security agreements, pledge agreements or guarantees
relating to the Additional Collateral supporting any Additional Collateral
Mortgage Loan, (ii) its security interest in and to any Additional Collateral,
(iii) its right to receive payments in respect of any Additional Collateral
Mortgage Loan pursuant to the related Servicing Agreement, and (iv) its rights
as beneficiary under the Certificate Guaranty Surety Bond related in respect
of any Additional Collateral Mortgage Loans conveyed to the Seller from
MSDWCC.
39
In connection with such transfer and assignment, the Seller, on behalf of
the Depositor, does hereby deliver on the Closing Date, unless otherwise
specified in this Section 2.01, to, and deposit with the Trustee, or the
Custodian as its designated agent, the following documents or instruments with
respect to each Mortgage Loan (a "MORTGAGE FILE") so transferred and assigned:
(i) the original Mortgage Note, endorsed either on its face or by
allonge attached thereto in the following form: "Pay to the
order of Bankers Trust Company of California, N.A., as Trustee
for ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1, without
recourse", or with respect to any lost Mortgage Note, an
original Lost Note Affidavit stating that the original
mortgage note was lost, misplaced or destroyed, together with
a copy of the related mortgage note; provided, however, that
such substitutions of Lost Note Affidavits for original
Mortgage Notes may occur only with respect to Mortgage Loans
the aggregate Cut-Off Date Principal Balance of which is less
than or equal to 2% of the Cut-Off Date Aggregate Principal
Balance;
(ii) except as provided below, for each Mortgage Loan that is not a
MERS Mortgage Loan, the original Mortgage, and in the case of
each MERS Mortgage Loan, the original Mortgage, noting the
presence of the MIN for that Mortgage Loan and either language
indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan, or if such Mortgage Loan was not
a MOM Loan at origination, the original Mortgage and the
assignment to MERS, in each case with evidence of recording
thereon, and the original recorded power of attorney, if the
Mortgage was executed pursuant to a power of attorney, with
evidence of recording thereon or, if such Mortgage or power of
attorney has been submitted for recording but has not been
returned from the applicable public recording office, has been
lost or is not otherwise available, a copy of such Mortgage or
power of attorney, as the case may be, certified to be a true
and complete copy of the original submitted for recording;
(iii) in the case of each Mortgage Loan that is not a MERS Mortgage
Loan, an original Assignment of Mortgage, in form and
substance acceptable for recording. The Mortgage shall be
assigned to "Bankers Trust Company of California, N.A., as
Trustee for ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
without recourse";
(iv) in the case of each Mortgage Loan that is not a MERS Mortgage
Loan, an original copy of any intervening Assignment of
Mortgage showing a complete chain of assignments;
(v) the original or a certified copy of lender's title insurance
policy; and
(vi) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any.
In addition, in connection with the assignment of any MERS Mortgage Loan,
the Seller agrees that it will cause, at the Seller's expense, the MERS(R)
System to indicate that such
40
Mortgage Loans have been assigned by the Seller to the Trustee in accordance
with this Agreement for the benefit of the Certificateholders by including (or
deleting, in the case of Mortgage Loans that are repurchased in accordance
with this Agreement) in such computer files the information required by the
MERS(R) System to identify the series of the Certificates issued in connection
with the transfer of such Mortgage Loans of the ▇▇▇▇▇▇▇▇▇ Mortgage Securities
Trust 2001-1.
With respect to each Cooperative Loan the Seller, on behalf of the
Depositor does hereby deliver to the Trustee the related Cooperative Loan
Documents and shall cause the 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.
The Seller shall deliver the required documents to the Trustee prior to
the Closing Date. In the case of the documents referred to in Section
2.01(iii), however, the Seller has delivered a copy of each Assignment of
Mortgage certified by the Seller to be a true and complete copy of the
original and, within two Business Days after the Closing Date, the Seller will
deliver each original Assignment of Mortgage to the applicable public
recording office for recordation.
The Trustee agrees to execute and deliver to the Depositor on or prior to
the Closing Date an acknowledgment of receipt of the original Mortgage Note
(with any exceptions noted), substantially in the form attached as Exhibit G-3
hereto.
If, as of the Closing Date, any of the documents referred to in Section
2.01(ii) or (iv) above has been submitted for recording but either (x) has not
been returned from the applicable public recording office or (y) has been lost
or such public recording office has retained the original of such document,
the obligations of the Seller to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Trustee, no later than the Closing Date, of
a copy of each such document certified by the Seller in the case of (x) above
or the applicable public recording office in the case of (y) above to be a
true and complete copy of the original that was submitted for recording and
(2) if such copy is certified by the Seller, delivery to the Trustee, promptly
upon receipt thereof, of either the original or a copy of such document
certified by the applicable public recording office to be a true and complete
copy of the original. If the original lender's title insurance policy, or a
certified copy thereof, was not delivered pursuant to Section 2.01(v) above,
the Seller shall deliver or cause to be delivered to the Trustee the original
or a copy of a written commitment or interim binder or preliminary report of
title issued by the title insurance or escrow company, with the original or a
certified copy thereof to be delivered to the Trustee, promptly upon receipt
thereof. The Seller shall deliver or cause to be delivered to the Trustee,
promptly upon receipt thereof, any other documents constituting a part of a
Mortgage File received with respect to any Mortgage Loan sold to the Depositor
by the Seller, including, but not limited to, any original documents
evidencing an assumption or modification of any Mortgage Loan.
Upon discovery or receipt of notice of any materially defective document
in, or that a document is missing from, a Mortgage File, the Seller shall have
90 days to cure such defect or deliver such missing document to the Trustee.
If the Seller does not cure such defect or deliver such missing document
within such time period, the Seller shall either repurchase or substitute
41
for such Mortgage Loan in accordance with Section 2.03 hereof. The Seller
shall cause the Assignments of Mortgage referred to in Section 2.01(iii)
hereof and, to the extent necessary, in Section 2.01(iv) hereof to be
recorded; provided, however, that the Seller need not cause to be recorded any
Assignment which relates to a Mortgage Loan in any jurisdiction under the laws
of which, as evidenced by a legal memorandum delivered by the Seller to the
Trustee and the Rating Agency, the recordation of such Assignment is not
necessary to protect the Trustee's interest in the related Mortgage Loan. The
Seller shall be required to deliver such Assignments for recording within 30
days of the Closing Date. The Seller shall furnish the Trustee, or its
designated agent, with a copy of each Assignment of Mortgage submitted for
recording. In the event that any such Assignment is lost or returned
unrecorded because of a defect therein, the Seller shall promptly have a
substitute Assignment prepared or have such defect cured, as the case may be,
and thereafter cause each such Assignment to be duly recorded.
The Depositor herewith delivers to the Trustee an executed copy of the
Mortgage Loan Purchase Agreement.
SECTION 2.02. Acceptance by Trustee.
---------------------
The Trustee hereby accepts its appointment as Custodian hereunder and
acknowledges the receipt, subject to the provisions of Section 2.01 and
subject to the review described below and any exceptions noted on the
exception report described in the next paragraph below, of the documents
referred to in Section 2.01 above and all other assets included in the
definition of "Trust Fund" and declares that, in its capacity as Custodian, it
holds and will hold such documents and the other documents delivered to it
constituting a Mortgage File, and that it holds or will hold all such assets
and such other assets included in the definition of "Trust Fund" in trust for
the exclusive use and benefit of all present and future Certificateholders.
The Trustee further agrees, for the benefit of the Certificateholders, to
review each Mortgage File delivered to it and to certify and deliver to the
Depositor, the Seller, the Master Servicer and the Rating Agency an initial
certification in substantially the form attached hereto as Exhibit G-1, within
45 days after the Closing Date (or, with respect to any document delivered
after the Startup Day, within 45 days of receipt and with respect to any
Qualified Substitute Mortgage, within 45 days after the assignment thereof)
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in the exception report annexed thereto as not being covered by
such certification), (i) all documents required to be delivered to it pursuant
Section 2.01 of this Agreement are in its possession, (ii) such documents have
been reviewed by it and have not been mutilated, damaged or torn and relate to
such Mortgage Loan and (iii) based on its examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedule that
corresponds to items (i), (ii), (iii), (xiii), (xiv) and (xviii) of the
Mortgage Loan Schedule accurately reflects information set forth in the
Mortgage File. It is herein acknowledged that, in conducting such review, the
Trustee is under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they
are genuine, enforceable, or appropriate for the represented purpose or that
they have actually been recorded or that they are other than what they purport
to be on their face.
42
Prior to the first anniversary date of this Agreement, the Trustee shall
deliver to the Depositor, the Seller and the Master Servicer a final
certification in the form annexed hereto as Exhibit G-2 evidencing the
completeness of the Mortgage Files, with any applicable exceptions noted
thereon.
If, in the process of reviewing the Mortgage Files and making or
preparing, as the case may be, the certifications referred to above, the
Trustee finds any document or documents constituting a part of a Mortgage File
to be missing or defective in any material respect, at the conclusion of its
review the Trustee (or the Custodian as its designated agent) shall so notify
the Seller, the Depositor and the Master Servicer. In addition, upon the
discovery by the Seller or the Depositor (or upon receipt by the Trustee of
written notification of such breach) of a breach of any of the representations
and warranties made by the Seller in the Mortgage Loan Purchase Agreement in
respect of any Mortgage Loan that materially adversely affects such Mortgage
Loan or the interests of the related Certificateholders in such Mortgage Loan,
the party discovering such breach shall give prompt written notice to the
other parties to this Agreement.
The Depositor and the Trustee intend that the assignment and transfer
herein contemplated constitute a sale of the Mortgage Loans, the related
Mortgage Notes and the related documents, conveying good title thereto free
and clear of any liens and encumbrances, from the Depositor to the Trustee and
that such property not be part of the Depositor's estate or property of the
Depositor in the event of any insolvency by the Depositor. In the event that
such conveyance is deemed to be, or to be made as security for, a loan, the
parties intend that the Depositor shall be deemed to have granted and does
hereby grant to the Trustee a first priority perfected security interest in
all of the Depositor's right, title and interest in and to the Mortgage Loans,
the related Mortgage Notes and the related documents, and that this Agreement
shall constitute a security agreement under applicable law.
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by the Seller.
-----------------------------------------------------------
(a) Upon discovery or receipt of written notice of any materially
defective document in, or that a document is missing from, a Mortgage File or
of the breach by the Seller of any representation, warranty or covenant under
the Mortgage Loan Purchase Agreement or in Section 2.04 or Section 2.08 hereof
in respect of any Mortgage Loan which materially adversely affects the value
of that Mortgage Loan or the interest therein of the Certificateholders, the
Trustee (or the Custodian as its designated agent) shall promptly notify the
Seller of such defect, missing document or breach and request that the Seller
deliver such missing document or cure such defect or breach within 90 days
from the date that the Seller was notified of such missing document, defect or
breach, and if the Seller does not deliver such missing document or cure such
defect or breach in all material respects during such period, the Trustee
shall enforce the Seller's obligation under the Mortgage Loan Purchase
Agreement and cause the Seller to repurchase that Mortgage Loan from the Trust
Fund at the Purchase Price on or prior to the Determination Date following the
expiration of such 90 day period (subject to Section 2.03(e) below); provided,
however, that, in connection with any such breach that could not reasonably
have been cured within such 90 day period, if the Seller shall have commenced
to cure such breach within such 90 day period, the Seller shall be permitted
to proceed thereafter diligently and expeditiously to cure the same within the
additional period provided under the Mortgage Loan Purchase Agreement; and,
provided further, that, in the case of the breach of any
43
representation, warranty or covenant made by the Seller in Schedule III to the
Mortgage Loan Purchase Agreement, the Seller shall be obligated to cure such
breach or purchase the affected Mortgage Loans. The Purchase Price for the
repurchased Mortgage Loan shall be deposited in the Collection Account on or
prior to the next Determination Date after the Seller's obligation to
repurchase such Mortgage Loan arises, and the Seller shall, upon the making of
such deposit, cause the related Servicer to provide a written certification of
receipt of such deposit to the Trustee. The Trustee, upon receipt of such
written certification, shall release to the Seller the related Mortgage File
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as the Seller shall furnish to it and as shall be
necessary to vest in the Seller any Mortgage Loan released pursuant hereto and
the Trustee shall have no further responsibility with regard to such Mortgage
File (it being understood that the Trustee shall have no responsibility for
determining the sufficiency of such assignment for its intended purpose). In
lieu of repurchasing any such Mortgage Loan as provided above, the Seller may
cause such Mortgage Loan to be removed from the Trust Fund (in which case it
shall become a Deleted Mortgage Loan) and substitute one or more Qualified
Substitute Mortgage Loans in the manner and subject to the limitations set
forth in Section 2.03(d) below. It is understood and agreed that the
obligation of the Seller to cure or to repurchase (or to substitute for) any
Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the Seller respecting such
omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
The Trustee shall enforce the obligations of the Seller under the
Mortgage Loan Purchase Agreement including, without limitation, any obligation
of the Seller to purchase a Mortgage Loan on account of missing or defective
documentation or on account of a breach of a representation, warranty or
covenant as described in this Section 2.03(a).
(b) If pursuant to the provisions of Section 2.03(a), the Seller
repurchases or otherwise removes from the Trust Fund a Mortgage Loan that is a
MERS Mortgage Loan, the Seller shall either (i) cause MERS to execute and
deliver an Assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Seller and shall cause such Mortgage to be removed from
registration on the MERS(R) System in accordance with MERS' rules and
regulations or (ii) cause MERS to designate on the MERS(R) System the Seller
or its designee as the beneficial holder of such Mortgage Loan.
(c) [Reserved].
(d) Any substitution of Qualified Substitute Mortgage Loans for Deleted
Mortgage Loans made pursuant to Section 2.03(a) above must be effected prior
to the last Business Day that is within two years after the Closing Date. As
to any Deleted Mortgage Loan for which the Seller substitutes a Qualified
Substitute Mortgage Loan or Loans, such substitution shall be effected by the
Seller delivering to the Trustee, for such Qualified Substitute Mortgage Loan
or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and
such other documents and agreements, with all necessary endorsements thereon,
as are required by Section 2.01 hereof, together with an Officers' Certificate
stating that each such Qualified Substitute Mortgage Loan satisfies the
definition thereof and specifying the Substitution Adjustment (as described
below), if any, in connection with such substitution; provided, however, that,
in the
44
case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage Loan,
the Seller shall provide such documents and take such other action with
respect to such Qualified Substitute Mortgage Loans as are required pursuant
to Section 2.01 hereof. The Trustee shall acknowledge receipt for such
Qualified Substitute Mortgage Loan or Loans and, within 45 days thereafter,
shall review such documents as specified in Section 2.02 hereof and deliver to
the related Servicer, with respect to such Qualified Substitute Mortgage Loan
or Loans, a certification substantially in the form attached hereto as Exhibit
G-1, with any exceptions noted thereon. Within one year of the date of
substitution, the Trustee shall deliver to the Seller and the Master Servicer
a certification substantially in the form of Exhibit G-2 hereto with respect
to such Qualified Substitute Mortgage Loan or Loans, with any exceptions noted
thereon. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution are not part of the Trust Fund and will be
retained by the Seller. For the month of substitution, distributions to
Certificateholders will reflect the collections and recoveries in respect of
such Deleted Mortgage Loan in the Due Period preceding the month of
substitution and the Depositor or the Seller, as the case may be, shall
thereafter be entitled to retain all amounts subsequently received in respect
of such Deleted Mortgage Loan. The Seller shall give or cause to be given
written notice to the Certificateholders that such substitution has taken
place, shall amend the Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage Loan from the terms of this Agreement and the substitution of
the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of
such amended Mortgage Loan Schedule to the Trustee. Upon such substitution,
such Qualified Substitute Mortgage Loan or Loans shall constitute part of the
Trust Fund and shall be subject in all respects to the terms of this Agreement
and, in the case of a substitution effected by the Seller, the Mortgage Loan
Purchase Agreement, including, in the case of a substitution effected by the
Seller all representations and warranties thereof included in the Mortgage
Loan Purchase Agreement and all representations and warranties thereof set
forth in Section 2.04 hereof, in each case as of the date of substitution.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller
shall determine, and provide written certification to the Trustee and the
Seller as to, the amount (each, a "SUBSTITUTION ADJUSTMENT"), if any, by which
the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the
aggregate, as to each such Qualified Substitute Mortgage Loan, of the
principal balance thereof as of the date of substitution, together with one
month's interest on such principal balance at the applicable Net Loan Rate. On
or prior to the next Determination Date after the Seller's obligation to
repurchase the related Deleted Mortgage Loan arises, the Seller will deliver
or cause to be delivered to the Trustee for deposit in the Distribution
Account an amount equal to the related Substitution Adjustment, if any, and
the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or
Loans, shall release to the Seller the related Mortgage File or Files and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as the Seller shall deliver to it and as shall be
necessary to vest therein any Deleted Mortgage Loan released pursuant hereto.
In addition, the Seller shall obtain at its own expense and deliver to
the Trustee an Opinion of Counsel to the effect that such substitution (either
specifically or as a class of transactions) will not cause (a) any federal 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
45
on "contributions after the startup date" under Section 860G(d)(l) of the
Code, or (b) the Upper Tier REMIC or Lower Tier REMIC to fail to qualify as a
REMIC at any time that any Certificate is outstanding. If such Opinion of
Counsel cannot be delivered, then such substitution may only be effected at
such time as the required Opinion of Counsel can be given.
(e) Upon discovery by the Seller or the Trustee that any Mortgage Loan
does not constitute a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall within two
Business Days give written notice thereof to the other parties. In connection
therewith, the Seller shall repurchase or, subject to the limitations set
forth in Section 2.03(d), substitute one or more Qualified Substitute Mortgage
Loans for the affected Mortgage Loan within 90 days of the earlier of
discovery or receipt of such notice with respect to such affected Mortgage
Loan. Any such repurchase or substitution shall be made in the same manner as
set forth in Section 2.03(a) above, if made by the Seller. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty.
SECTION 2.04. Representations and Warranties of the Seller with Respect to
--------------------------------------------------------------------
the Mortgage Loans.
-------------------
The Seller hereby represents and warrants to the Trustee for the benefit
of the Certificateholders that, as of the Closing Date or as of such other
date specifically provided herein, the representations and warranties made by
the Seller pursuant to Schedule III to the Mortgage Loan Purchase Agreement
are hereby being made to the Trustee and are true and correct as of the
Closing Date.
With respect to the representations and warranties incorporated in this
Section 2.04 that are made to the best of the Seller's knowledge or as to
which the Seller has no knowledge, if it is discovered by the Depositor, the
Seller or the Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of the related Mortgage Loan or the interest therein of the Certificateholders
then, notwithstanding the Seller's lack of knowledge with respect to the
substance of such representation and warranty being inaccurate at the time the
representation or warranty was made, such inaccuracy shall be deemed a breach
of the applicable representation or warranty.
Within 90 days of its discovery or its receipt of notice of any such
missing or materially defective documentation or any such breach of a
representation or warranty, the Seller shall promptly deliver such missing
document or cure such defect or breach in all material respects or, in the
event such defect or breach cannot be cured, the Seller shall repurchase the
affected Mortgage Loan or cause the removal of such Mortgage Loan from the
Trust Fund and substitute for it one or more Qualified Substitute Mortgage
Loans, in either case, in accordance with Section 2.03 hereof.
It is understood and agreed that the representations and warranties
incorporated in this Section 2.04 shall survive delivery of the Mortgage Files
to the Trustee and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or assignment. Upon
discovery by any of the Depositor, the Seller or the Trustee of a breach of
any of the foregoing representations and warranties which materially and
adversely affects the value
46
of any Mortgage Loan or the interests therein of the Certificateholders, the
party discovering such breach shall give prompt written notice to the other
parties, and in no event later than two Business Days from the date of such
discovery. It is understood and agreed that the obligations of the Seller set
forth in Section 2.03(a) hereof to cure, substitute for or repurchase a
related Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement
constitute the sole remedies available to the Certificateholders or to the
Trustee on their behalf respecting a breach of the representations and
warranties incorporated in this Section 2.04.
SECTION 2.05. [Reserved].
SECTION 2.06. Representations and Warranties of the Depositor.
-----------------------------------------------
The Depositor represents and warrants to the Trust and the Trustee on
behalf of the Certificateholders as follows:
(i) this agreement constitutes a legal, valid and binding obligation of
the Depositor, enforceable against the Depositor in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general an except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity);
(ii) immediately prior to the sale and assignment by the Depositor to
the Trustee on behalf of the Trust of each Mortgage Loan, the Depositor had
good and marketable title to each Mortgage Loan (insofar as such title was
conveyed to it by the Seller) subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge or
other encumbrance or other interest of any nature;
(iii) as of the Closing Date, the Depositor has transferred all right,
title and interest in the Mortgage Loans to the Trustee on behalf of the
Trust;
(iv) the Depositor has not transferred the Mortgage Loans to the
Trustee on behalf of the Trust with any intent to hinder, delay or defraud
any of its creditors;
(v) the Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware, with full
corporate power and authority to own its assets and conduct its business as
presently being conducted;
(vi) the Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Depositor is a party or by which it or its
properties may be bound, which default might result in any material adverse
changes in the financial condition, earnings, affairs or business of the
Depositor or which might materially and adversely affect the properties or
assets, taken as a whole, of the Depositor;
47
(vii) the execution, delivery and performance of this Agreement by the
Depositor, and the consummation of the transactions contemplated hereby, do
not and will not result in a material breach or violation of any of the
terms or provisions of, or, to the knowledge of the Depositor, constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Depositor is a party or by which
the Depositor is bound or to which any of the property or assets of the
Depositor is subject, nor will such actions result in any violation of the
provisions of the certificate of incorporation or by-laws of the Depositor
or, to the best of the Depositor's knowledge without independent
investigation, any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Depositor or any
of its properties or assets (except for such conflicts, breaches,
violations and defaults as would not have a material adverse effect on the
ability of the Depositor to perform its obligations under this Agreement);
(viii) to the best of the Depositor's knowledge without any independent
investigation, no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States or any other jurisdiction is required for the issuance of the
Certificates, or the consummation by the Depositor of the other
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as (a) may be
required under State securities or "blue sky" laws, (b) have been
previously obtained or (c) the failure of which to obtain would not have a
material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
(ix) there are no actions, proceedings or investigations pending before
or, to the Depositor's knowledge, threatened by any court, administrative
agency or other tribunal to which the Depositor is a party or of which any
of its properties is the subject: (a) which if determined adversely to the
Depositor would have a material adverse effect on the business, results of
operations or financial condition of the Depositor; (b) asserting the
invalidity of this Agreement or the Certificates; (c) seeking to prevent
the issuance of the Certificates or the consummation by the Depositor of
any of the transactions contemplated by this Agreement, as the case may be;
or (d) which might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of,
this Agreement.
SECTION 2.07. Issuance of Certificates.
------------------------
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery to it of the Mortgage Files, subject to the provisions of
Sections 2.01 and 2.02 hereof, together with the assignment to it of all other
assets included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed, authenticated and delivered to or upon
the order of the Depositor, the Certificates in authorized denominations. The
interests evidenced by the Certificates constitute the entire beneficial
ownership interest in the Trust Fund.
48
SECTION 2.08. Representations and Warranties of the Seller.
--------------------------------------------
The Seller hereby represents and warrants to the Trust and the
Trustee on behalf of the Certificateholders that, as of the Closing Date or as
of such date specifically provided herein:
(i) the Seller is duly organized, validly existing and in good standing
as a corporation under the laws of the State of Delaware and is and will
remain in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to fulfill its obligations
hereunder;
(ii) the Seller has the power and authority to hold each Mortgage Loan,
to sell each Mortgage Loan, to execute, deliver and perform, and to enter
into and consummate, all transactions contemplated by this Agreement. The
Seller has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement and this
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or
reorganization or other similar laws in relation to the rights of creditors
generally;
(iii) the execution and delivery of this Agreement by the Seller and
the performance of and compliance with the terms of this Agreement will not
violate the Seller's articles of incorporation or by-laws or constitute a
default under or result in a material breach or acceleration of, any
material contract, agreement or other instrument to which the Seller is a
party or which may be applicable to the Seller or its assets;
(iv) the Seller is not in violation of, and the execution and delivery
of this Agreement by the Seller and its performance and compliance with the
terms of this Agreement will not constitute a violation with respect to,
any order or decree of any court or any order or regulation of any federal,
state, municipal or governmental agency having jurisdiction over the Seller
or its assets, which violation might have consequences that would
materially and adversely affect the condition (financial or otherwise) or
the operation of the Seller or its assets or might have consequences that
would materially and adversely affect the performance of its obligations
and duties hereunder;
(v) the Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant contained in
this Agreement;
(vi) the Seller has good, marketable and indefeasible title to the
Mortgage Loans, free and clear of any and all liens, pledges, charges or
security interests of any nature encumbering the Mortgage Loans and upon
the payment of the purchase price under the Mortgage Loan Purchase
Agreement by the Depositor, the Depositor will have good and marketable
title to the Mortgage Notes and Mortgage Loans, free and clear of all liens
or encumbrances;
(vii) the Mortgage Loans are not being transferred by the Seller with
any intent to hinder, delay or defraud any creditors of the Seller;
49
(viii) there are no actions or proceedings against, or investigations
known to it of, the Seller before any court, administrative or other
tribunal (A) that might prohibit its entering into this Agreement, (B)
seeking to prevent the sale of the Mortgage Loans or the consummation of
the transactions contemplated by this Agreement or (C) that might prohibit
or materially and adversely affect the performance by the Seller of its
obligations under, or validity or enforceability of, this Agreement;
(ix) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for such consents, approvals, authorizations or orders,
if any, that have been obtained; and
(x) the consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Seller, and the transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages by the
Seller pursuant to the Mortgage Loan Purchase Agreement are not subject to
the bulk transfer or any similar statutory provisions.
SECTION 2.09. Covenants of the Seller.
-----------------------
The Seller hereby covenants that, except for the transfer hereunder,
the Seller will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any lien on any Mortgage Loan,
or any interest therein; the Seller will notify the Trustee, as assignee of
the Depositor, and the Master Servicer of the existence of any lien on any
Mortgage Loan immediately upon discovery thereof, and the Seller will defend
the right, title and interest of the Trust, as assignee of the Depositor, in,
to and under the Mortgage Loans, against all claims of third parties claiming
through or under the Seller; provided, however, that nothing in this Section
2.09 shall prevent or be deemed to prohibit the Seller from suffering to exist
upon any of the Mortgage Loans any liens for municipal or other local taxes
and other governmental charges if such taxes or governmental charges shall not
at the time be due and payable or if the Seller shall currently be contesting
the validity thereof in good faith by appropriate proceedings and shall have
set aside on its books adequate reserves with respect thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS; LOSS MITIGATION ADVISOR
SECTION 3.01. Master Servicer to Service and Administer the Loans.
----------------------------------------------------------
The Master Servicer shall, acting alone or through Servicers, service
and administer the Mortgage Loans on behalf of the Trustee and in the best
interests of and for the benefit of the Certificateholders (as determined by
the Master Servicer in its reasonable judgment) in accordance with the terms
of this Agreement, the Servicing Agreements, if any, and the Mortgage Loans
and, to the extent consistent with such terms, in the same manner in which it
50
services and administers similar mortgage loans for its own portfolio, giving
due consideration to customary and usual standards of practice of mortgage
lenders and loan servicers administering similar mortgage loans but without
regard to:
(i) any relationship that the Master Servicer, any Servicer or any
Affiliate of the Master Servicer or any Servicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Master
Servicer or any Affiliate of the Master Servicer;
(iii) the Master Servicer's obligation to make Advances or Servicing
Advances; or
(iv) the Master Servicer's or any Servicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, the Master Servicer
shall seek to maximize the timely and complete recovery of principal and
interest on the Mortgage Notes. Subject only to the above-described servicing
standards and the terms of this Agreement and of the Mortgage Loans, the
Master Servicer shall have full power and authority, acting alone or through
Servicers as provided in Section 3.02, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Master Servicer in its own name or in the name of a Servicer is hereby
authorized and empowered by the Trustee, when the Master Servicer believes it
appropriate in its best judgment in accordance with the servicing standards
set forth above, to execute and deliver, on behalf of the Certificateholders
and the Trustee, and upon notice to the Trustee, 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 related Mortgage Loans
and the related Mortgaged Properties and to institute foreclosure proceedings
or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on
behalf of the Trustee and Certificateholders. The Master Servicer shall
service and administer the Mortgage Loans in accordance with applicable state
and federal law and shall provide to the Mortgagors any reports required to be
provided to them thereby. The Master Servicer shall also comply in the
performance of this Agreement with all reasonable rules and requirements of
each insurer under any standard hazard insurance policy. Subject to Section
3.17, the Trustee shall execute, at the written request of the Master
Servicer, and furnish to the Master Servicer and any Servicer any special or
limited powers of attorney and other documents necessary or appropriate to
enable the Master Servicer or any Servicer to carry out their servicing and
administrative duties hereunder and under the related Servicing Agreement;
provided, however, such limited powers of attorney or other documents shall be
prepared by the Master Servicer and submitted to the Trustee for execution.
The Trustee shall not be liable for the actions of the Master Servicer or any
Servicers under such powers of attorney.
Subject to Section 3.09 hereof, in accordance with the standards of
the preceding paragraph, the Master Servicer shall advance or cause to be
advanced funds as necessary for the purpose of effecting the timely payment of
taxes and assessments on the Mortgaged Properties, which advances shall be
Servicing Advances reimbursable in the first instance from related collections
from the Mortgagors pursuant to Section 3.09, and further as provided in
Section
51
3.11. Any cost incurred by the Master Servicer or by Servicers in effecting
the timely payment of taxes and assessments on a Mortgaged Property shall not,
for the purpose of calculating distributions to Certificateholders, be added
to the unpaid Principal Balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit.
Notwithstanding anything in this Agreement to the contrary, the Master
Servicer may not make any future advances with respect to a Mortgage Loan and
the Master Servicer shall not (i) permit any modification (unless contemplated
by the related Mortgage Note at the origination thereof) with respect to any
Mortgage Loan that would change the Mortgage Rate, reduce or increase the
Principal Balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (unless, as
provided in Section 3.07, the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Master Servicer,
reasonably foreseeable) or (ii) permit any modification, waiver or amendment
of any term of any Mortgage Loan that would both (A) effect an exchange or
reissuance of such Mortgage Loan under Section 1001 of the Code (or Treasury
regulations promulgated thereunder) and (B) cause the REMIC to fail to qualify
as a REMIC under the Code or the imposition of any tax on "prohibited
transactions" or "contributions after the startup date" under the REMIC
Provisions.
SECTION 3.02. Servicing Agreements Between Master Servicer and Servicers.
----------------------------------------------------------
The Master Servicer may enter into Servicing Agreements with Servicers
for the servicing and administration of the Mortgage Loans.
SECTION 3.03. Successor Servicers.
-------------------
The Master Servicer shall be entitled to terminate any Servicing
Agreement and the rights and obligations of any Servicer pursuant to any
Servicing Agreement in accordance with the terms and conditions of such
Servicing Agreement. In the event of termination of any Servicer, all
servicing obligations of such Servicer shall be assumed simultaneously by the
Master Servicer without any act or deed on the part of such Servicer or the
Master Servicer, and the Master Servicer either shall service directly the
related Mortgage Loans or shall enter into a Servicing Agreement with a
successor Servicer which qualifies under Section 3.02.
Any Servicing Agreement shall include the provision that such agreement
may be immediately terminated by the Master Servicer or the Trustee (if the
Trustee is acting as successor master servicer) without fee, in accordance
with the terms of this Agreement, in the event that the Master Servicer (or
the Trustee, if such party is then acting as successor master servicer) shall,
for any reason, no longer be the Master Servicer (including termination due to
a Master Servicer Event of Termination).
SECTION 3.04. Liability of the Master Servicer.
--------------------------------
Notwithstanding any Servicing Agreement or the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer
and a Servicer or reference to actions taken through a Servicer or otherwise,
the Master Servicer shall remain obligated and primarily liable to the Trustee
and the Certificateholders for the servicing and administering of the Mortgage
Loans in accordance with the provisions of Section 3.01 without diminution of
such
52
obligation or liability by virtue of such Servicing Agreements or arrangements
or by virtue of indemnification from the Servicer and to the same extent and
under the same terms and conditions as if the Master Servicer alone were
servicing and administering the Mortgage Loans. The Master Servicer shall be
entitled to enter into any agreement with a Servicer for indemnification of
the Master Servicer by such Servicer and nothing contained in this Agreement
shall be deemed to limit or modify such indemnification.
SECTION 3.05. No Contractual Relationship Between Servicers and the
-----------------------------------------------------
Trustee or Certificateholders.
------------------------------
Any Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Servicer in its capacity
as such shall be deemed to be between the Servicer and the Master Servicer
alone, and the Trustee and the Certificateholders shall not be deemed parties
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Servicer except as set forth in Section 3.06. The Master
Servicer shall be solely liable for all fees owed by it to any Servicer,
irrespective of whether the Master Servicer's compensation pursuant to this
Agreement is sufficient to pay such fees.
SECTION 3.06. Assumption or Termination of Servicing Agreements by Trustee.
------------------------------------------------------------
In the event the Master Servicer shall for any reason no longer be the
Master Servicer (including by reason of the occurrence of a Master Servicer
Event of Termination), the Trustee shall thereupon assume all of the rights
and obligations of the Master Servicer under each Servicing Agreement that the
Master Servicer may have entered into, unless the Trustee elects to terminate
any Servicing Agreement in accordance with its terms as provided in Section
3.03. Upon such assumption, the Trustee (or the successor master servicer
appointed pursuant to Section 7.02) shall be deemed, subject to Section 3.03,
to have assumed all of the departing Servicer's interest therein and to have
replaced the departing Master Servicer as a party to each Servicing Agreement
to the same extent as if each Servicing Agreement had been assigned to the
assuming party, except that (i) the departing Master Servicer shall not
thereby be relieved of any liability or obligations under any Servicing
Agreement that arose before it ceased to be the Master Servicer and (ii)
neither the Trustee nor any successor Master Servicer shall be deemed to have
assumed any liability or obligation of the Master Servicer that arose before
it ceased to be the Master Servicer.
The Master Servicer at its expense shall, upon request of Trustee,
deliver to the assuming party all documents and records relating to each
Servicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Servicing Agreements to the assuming party.
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
--------------------------------------------
The Master Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans, and shall, to
the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any applicable insurance policies, follow such
collection procedures as it would follow with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Consistent with
the foregoing, the Master
53
Servicer may in its discretion (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the due dates for the Monthly
Payments due on a Mortgage Note for a period of not greater than 180 days;
provided, however, that any extension pursuant to clause (ii) above shall not
affect the amortization schedule of any Mortgage Loan for purposes of any
computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, the Master Servicer shall make
timely advances on such Mortgage Loan during such extension and in accordance
with the amortization schedule of such Mortgage Loan without modification
thereof by reason of such arrangement. Notwithstanding the foregoing, in the
event that any Mortgage Loan is in default or, in the judgment of the Master
Servicer, such default is reasonably foreseeable, the Master Servicer,
consistent with the standards set forth in Section 3.01, may also waive,
modify or vary any term of such Mortgage Loan (including modifications that
would change the Mortgage Rate, forgive the payment of principal or interest
or extend the final maturity date of such Mortgage Loan), accept payment from
the related Mortgagor of an amount less than the Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal
or interest, postponements, or indulgences collectively referred to herein as
"forbearance").
SECTION 3.08. Servicing Accounts.
------------------
In those cases where a Servicer is servicing a Mortgage Loan pursuant to
a Servicing Agreement, the Servicer will be required to establish and maintain
one or more accounts (collectively, the "Servicing Account"). The Servicing
Account shall be an Eligible Account and shall comply with all requirements of
this Agreement relating to the Collection Account. The Servicer shall deposit
in the clearing account in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Servicer's receipt thereof, all proceeds of Mortgage Loans received by the
Servicer less its servicing compensation to the extent permitted by the
Servicing Agreement, and shall thereafter deposit such amounts in the
Servicing Account, in no event more than two Business Days after the receipt
of such amounts. The Servicer shall thereafter remit such proceeds to the
Master Servicer for deposit in the Master Servicer's Account not later than
the related Servicer Remittance Date. For purposes of this Agreement, the
Master Servicer shall be deemed to have received payments on the Mortgage
Loans when the Servicer receives such payments.
SECTION 3.09. Collection of Taxes, Assessments and Similar Items.
---------------------------------------------------
The Master Servicer shall establish and maintain, or cause to be
established and maintained, one or more Eligible Accounts (each, an "Escrow
Payment Account"), into which all Escrow Payments shall be deposited and
retained. The Master Servicer shall deposit in the clearing account in which
it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and
in no event more than one Business Day after the Master Servicer's receipt
thereof, all Escrow Payments collected on account of the Mortgage Loans and
shall thereafter deposit such Escrow Payments in such Escrow Payment Account,
in no event more than two Business Days after the receipt of such Escrow
Payments, all Escrow Payments collected on account of the Mortgage Loans for
the
54
purpose of effecting the timely payment of any such items as required under
the terms of this Agreement. Withdrawals of amounts from any such Escrow
Payment Account may be made only to (i) effect payment of taxes, assessments,
hazard insurance premiums, and comparable items in a manner and at a time that
assures that the lien priority of the Mortgage is not jeopardized (or, with
respect to the payment of taxes, in a manner and at a time that avoids the
loss of the Mortgaged Property due to a tax sale or the foreclosure as a
result of a tax lien); (ii) reimburse the Master Servicer (or a Servicer to
the extent provided in the related Servicing Agreement) out of related
collections for any Servicing Advances; (iii) refund to Mortgagors any sums as
may be determined to be overages; (iv) pay interest, if required and as
described below, to Mortgagors; or (v) clear and terminate each Escrow Payment
Account at the termination of the Master Servicer's obligations and
responsibilities in respect of the Mortgage Loans under this Agreement in
accordance with Article X. The Master Servicer will be responsible for the
administration of each Escrow Payment Account and will be obligated to make
Servicing Advances to such accounts when and as necessary to avoid the lapse
of insurance coverage on the Mortgaged Property, or which the Master Servicer
knows, or in the exercise of the required standard of care of the Master
Servicer hereunder should know, is necessary to avoid the loss of the
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien. If any such payment has not been made and the Master Servicer receives
notice of a tax lien with respect to the Mortgage being imposed, the Master
Servicer will, within ten business days of such notice, advance or cause to be
advanced funds necessary to discharge such lien on the Mortgaged Property
unless the Master Servicer determines that such advance would not be
recoverable, if made. As part of its servicing duties, the Master Servicer or
Servicers shall pay to the Mortgagors interest on funds in any Escrow Payment
Account, to the extent required by law and, to the extent that interest earned
on funds in such accounts is insufficient, to pay such interest from its or
their own funds, without any reimbursement therefor.
SECTION 3.10. Collection Account and Distribution Account.
-------------------------------------------
(a) On behalf of the Trust Fund, the Master Servicer shall establish and
maintain, or cause to be established and maintained, one or more accounts,
each an Eligible Account, (such account or accounts, the "Collection
Account"), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Master Servicer shall
deposit or cause to be deposited in the clearing account (which must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities (the
"Master Servicer's Account") on a daily basis, and in no event more than one
Business Day after the Master Servicer's receipt thereof, and shall thereafter
deposit in the Collection Account, on the Servicer Remittance Date, the
following payments and collections received or made by it subsequent to the
Cut-Off Date (other than in respect of principal or interest on the Mortgage
Loans due on or before the Cut-Off Date) or payments (other than Principal
Prepayments) received by it on or prior to the Cut-Off Date but allocable to a
Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments on the Mortgage Loans;
(ii) all payments on account of interest (net of the related Master
Servicing Fee or Servicing Fee) on each Mortgage Loan;
55
(iii) all Insurance Proceeds and Liquidation Proceeds (other than
proceeds collected in respect of any particular REO Property and amounts
paid in connection with a purchase of Mortgage Loans and REO Properties
pursuant to Section 10.01);
(iv) any amounts required to be deposited pursuant to Section 3.12 in
connection with any losses realized on Permitted Investments with respect
to funds held in the Collection Account;
(v) any amounts required to be deposited by the Master Servicer
pursuant to the second paragraph of Section 3.14(a) in respect of any
blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased as
contemplated hereunder; and
(vii) all amounts required to be deposited in connection with
Substitution Adjustments pursuant to Section 2.03.
The foregoing requirements for deposit in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
ancillary income and assumption fees, or insufficient funds charges need not
be deposited by the Master Servicer in the Collection Account and may be
retained by the Master Servicer as additional compensation. In the event the
Master Servicer shall deposit in the Collection Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Collection Account, any provision herein to the contrary notwithstanding.
(b) On behalf of the Trust Fund, the Trustee shall establish and
maintain one or more accounts (such account or accounts, the "Distribution
Account"), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Master Servicer shall
deliver to the Trustee in immediately available funds for deposit in the
Distribution Account on or before the Close of Business New York time on the
Master Servicer Remittance Date, that portion of the Available Funds for the
related Distribution Date then on deposit in the Collection Account.
(c) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Master Servicer shall give notice to the Trustee of the location of the
Collection Account maintained by it when established and prior to any change
thereof. Funds in the Distribution Account shall be invested in Permitted
Investments selected by the Seller. The Trustee shall give notice to the
Master Servicer and the Depositor of the location of the Distribution Account
when established and prior to any change thereof.
(d) Funds held in the Collection Account at any time may be delivered
by the Master Servicer to the Trustee for deposit in an account (which may be
the Distribution Account and must satisfy the standards for the Distribution
Account as set forth in the definition thereof) and for all purposes of this
Agreement shall be deemed to be a part of the Collection Account; provided,
however, that the Trustee shall have the sole authority to withdraw any funds
held in the Distribution Account pursuant to this subsection (d). In the event
the Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account any amount not required to be
56
deposited therein, it may at any time request that the Trustee withdraw such
amount from the Distribution Account and remit to it any such amount, any
provision herein to the contrary notwithstanding. In addition, the Master
Servicer, with respect to items (i) through (iv) below, shall deliver to the
Trustee from time to time for deposit, and the Trustee, with respect to items
(i) through (iv) below, shall so deposit, in the Distribution Account:
(i) any Advances, as required hereunder;
(ii) any amounts required to be deposited pursuant to Section 3.23(d)
or (f) in connection with any REO Property;
(iii) any amounts to be paid in connection with a purchase of Mortgage
Loans and REO Properties pursuant to Section 10.01; and
(iv) any Compensating Interest to be deposited pursuant to Section
3.24.
(e) [Reserved].
(f) The Master Servicer shall deposit in the Collection Account any
amounts required to be deposited pursuant to Section 3.12(b) in connection with
losses realized on Permitted Investments with respect to funds held in the
Collection Account.
SECTION 3.11. Withdrawals from the Collection Account and Distribution
Account. ----------------------------------------------------------
-------
(a) The Master Servicer shall, from time to time, make withdrawals from
the Collection Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be so remitted pursuant to Section
3.10(b) or permitted to be so remitted pursuant to the first sentence
of Section 3.10(d);
(ii) subject to Section 3.16(d), to reimburse the Master
Servicer for Advances, but only to the extent of amounts received which
represent Late Collections (net of the related Servicing Fees) of
Monthly Payments, Liquidation Proceeds and Insurance Proceeds on
Mortgage Loans with respect to which such Advances were made in
accordance with the provisions hereof;
(iii) subject to Section 3.16(d), to pay the Master Servicer or
any Servicer (a) any unpaid Master Servicing Fees and Servicing Fees,
(b) any unreimbursed Servicing Advances with respect to each Mortgage
Loan, but only to the extent of any Late Collections, Liquidation
Proceeds and Insurance Proceeds received with respect to such Mortgage
Loan, and (c) any Servicing Advances with respect to the final
liquidation of a Mortgage Loan that are Nonrecoverable Advances, but
only to the extent that Late Collections, Liquidation Proceeds and
Insurance Proceeds received with respect to such Mortgage Loan are
insufficient to reimburse the Master Servicer or any Servicer for
Servicing Advances;
57
(iv) to pay to the Master Servicer as servicing compensation (in
addition to the Master Servicing Fee) any investment earnings on
amounts on deposit in the Collection Account;
(v) to pay to the Master Servicer or the applicable Seller, with
respect to each related Mortgage Loan that has previously been
purchased or replaced as contemplated hereunder all amounts received
thereon subsequent to the date of purchase or substitution, as the case
may be;
(vi) to reimburse the Master Servicer for any Advance previously
made which the Master Servicer has determined to be a Nonrecoverable
Advance in accordance with the provisions hereof;
(vii) to pay, or to reimburse the Master Servicer for Servicing
Advances in respect of, expenses incurred in connection with any
Mortgage Loan pursuant to Section 3.16(b);
(viii) to pay to the Master Servicer on a Master Servicer
Remittance Date any Payoff Interest not required to be included in any
related Compensating Interest Payment for such date;
(ix) to pay to ▇▇▇▇▇▇▇▇▇ any Retained Interest and prepayment
penalties received from the related Servicer by the Master Servicer on
the Mortgage Loans; and
(x) to clear and terminate the Collection Account pursuant to
Section 10.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (ii), (iii), (iv), (v), (vi), (vii) and (viii)
above. The Master Servicer shall provide written notification to the Trustee,
on or prior to the next succeeding Master Servicer Remittance Date, upon
making any withdrawals from the Collection Account pursuant to subclause (vi)
above; provided that an Officers' Certificate in the form described under
Section 4.04(d) shall suffice for such written notification to the Trustee in
respect hereof.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account, for any of the following purposes, without priority:
(i) to make distributions in accordance with Sections 4.01 and 8.05;
(ii) to pay any amounts in respect of taxes pursuant to Section
9.01(g);
(iii) to pay, itself the Trustee's Portion of Distribution Account
Income; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.01.
58
SECTION 3.12. Investment of Funds in the Accounts.
-----------------------------------
(a) The Master Servicer may direct any depository institution
maintaining the Collection Account (each such account, for purposes of this
Section 3.12, an "Investment Account"), to invest the funds in such Investment
Account in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business
Day immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such), or in the name of a nominee of the Trustee.
The Trustee shall be entitled to sole possession or control (except with
respect to investment direction of funds held in the Collection Account and
any income and gain realized thereon) over each such investment, and any
certificate, securities entitlement or other instrument evidencing any such
investment shall be delivered directly to the Trustee or its agent, together
with any document of transfer necessary to transfer title to such investment
to the Trustee or its nominee. In the event amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable
on demand, the Trustee shall:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly
upon determination by a Responsible Officer of the Trustee that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Investment Account.
(b) Any investment earnings on amounts in the Collection Account
shall be for the benefit of the Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.11. The Master Servicer shall deposit
in the Collection Account or any REO Account, as applicable, the amount of any
loss of principal incurred in respect of any such Permitted Investment made
with funds in such accounts immediately upon realization of such loss.
(c) The Trustee shall invest funds on deposit in the Distribution
Account in one or more Permitted Investments, at the direction of the Seller,
bearing interest or sold at a discount, and maturing, unless payable on
demand, no later than the Business Day preceding each Distribution Date. The
Trustee shall be entitled to the Trustee's Portion of any Distribution Account
Income, and the balance of any such amount shall constitute "Residual Funds"
and shall be distributable to the Class LTA-R Certificates pursuant to Section
4.01(c). The Seller shall deposit in the Distribution Account the amount of
any loss of principal incurred in respect of any such Permitted Investments
made with funds in such account immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.01 and Section
8.02(a)(v), upon the request of the Holders of Certificates representing more
59
than 50% of the Voting Rights, shall take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings.
SECTION 3.13. [Reserved].
----------
SECTION 3.14. Maintenance of Hazard Insurance, Primary Insurance
------------------------------------------------------
Polices and Errors and Omissions and Fidelity Coverage.
-----------------------------------------------------------
(a) The Master Servicer shall cause to be maintained for each
Mortgage Loan fire insurance with extended coverage on the Mortgaged Property
in an amount which is at least equal to the lesser of the current Principal
Balance of such Mortgage Loan and the amount necessary to fully compensate for
any damage or loss to the improvements that are a part of such property on a
replacement cost basis, in each case in an amount not less than such amount as
is necessary to avoid the application of any coinsurance clause contained in
the related hazard insurance policy. The Master Servicer shall also cause to
be maintained fire insurance with extended coverage on each REO Property in an
amount which is at least equal to the lesser of (i) the maximum insurable
value of the improvements which are a part of such property and (ii) the
outstanding Principal Balance of the related Mortgage Loan at the time it
became an REO Property. The Master Servicer will comply in the performance of
this Agreement with all reasonable rules and requirements of each insurer
under any such hazard policies. Any amounts to be collected by the Master
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or
amounts to be released to the Mortgagor in accordance with the procedures that
the Master Servicer would follow in servicing loans held for its own account,
subject to the terms and conditions of the related Mortgage and Mortgage Note)
shall be deposited in the Collection Account, subject to withdrawal pursuant
to Section 3.11, if received in respect of a Mortgage Loan, or in the REO
Account, subject to withdrawal pursuant to Section 3.23, if received in
respect of an REO Property. Any cost incurred by the Master Servicer in
maintaining any such insurance shall not, for the purpose of calculating
distributions to Certificateholders, be added to the unpaid Principal Balance
of the related Mortgage Loan, notwithstanding that the terms of such Mortgage
Loan so permit. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor other than pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Mortgaged Property or REO
Property is at the time of origination in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards and flood insurance has been made available, the Master Servicer will
cause to be maintained a flood insurance policy in respect thereof. Such flood
insurance shall be in an amount equal to the lesser of (i) the unpaid
Principal Balance of the related Mortgage Loan and (ii) the maximum amount of
such insurance available for the related Mortgaged Property under the national
flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program).
In the event that the Master Servicer shall obtain and maintain a
blanket policy with an insurer having a General Policy Rating of AX or better
in Best's Key Rating Guide (or such other rating that is comparable to such
rating) insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first two sentences of this Section 3.14, it being understood and agreed that
such policy may contain a
60
deductible clause, in which case the Master Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property or REO
Property a policy complying with the first two sentences of this Section 3.14,
and there shall have been one or more losses which would have been covered by
such policy, deposit to the Collection Account from its own funds the amount
not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to prepare and present, on behalf
of itself, the Trustee and the Certificateholders, claims under any such
blanket policy in a timely fashion in accordance with the terms of such
policy.
(b) The Master Servicer shall not take any action which would result in
non-coverage under any applicable Primary Insurance Policy of any loss which,
but for the actions of the Master Servicer, would have been covered
thereunder. The Master Servicer shall not cancel or refuse to renew any such
Primary 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 unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy
is maintained with a Qualified Insurer.
The Master Servicer shall not be required to maintain any Primary
Insurance Policy (i) with respect to any Mortgage Loan with a Loan-to-Value
Ratio less than or equal to 80% as of any date of determination or, based on a
new appraisal, the Principal Balance of such Mortgage Loan represents 80% or
less of the new appraised value or (ii) if maintaining such Primary Insurance
Policy is prohibited by applicable law.
The Master Servicer agrees to effect the timely payment of the premiums
on each Primary Insurance Policy, and such costs not otherwise recoverable
shall be recoverable by the Master Servicer from the related Liquidation
Proceeds.
(c) In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present on behalf of itself, the Trustee
and Certificateholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Any amounts collected by the Master Servicer under
any Primary Insurance Policies shall be deposited in the Collection Account.
(d) The Master Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Master Servicer's obligations under this
Agreement, which policy or policies shall be in such form and amount that
would meet the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac if it were the
purchaser of the Mortgage Loans, unless the Master Servicer has obtained a
waiver of such requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Master
Servicer shall also maintain a fidelity bond in the form and amount that would
meet the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, unless the Master Servicer
has obtained a waiver of such requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The
Master Servicer shall be deemed to have complied with this provision if an
Affiliate of the Master Servicer has such errors and omissions and fidelity
bond coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Master Servicer. Any such errors
and omissions policy and fidelity bond shall by its terms not be cancelable
without thirty days' prior written notice to the Trustee. The Master Servicer
61
shall also cause each Servicer to maintain a policy of insurance covering
errors and omissions and a fidelity bond which would meet such requirements.
SECTION 3.15. Enforcement of Due-On-Sale Clauses; Assumption Agreements.
---------------------------------------------------------
The Master Servicer will, to the extent it has knowledge of any
conveyance or prospective conveyance of any Mortgaged Property by any
Mortgagor (whether by absolute conveyance or by contract of sale, and whether
or not the Mortgagor remains or is to remain liable under the Mortgage Note
and/or the Mortgage), exercise the right to accelerate the maturity of such
Mortgage Loan under the "due-on-sale" clause, if any, applicable thereto;
provided, however, that the Master Servicer shall not be required to take such
action if in its sole business judgment the Master Servicer believes it is not
in the best interests of the Trust Fund and shall not exercise any such rights
if prohibited by law from doing so. If the Master Servicer reasonably believes
it is unable under applicable law to enforce such "due-on-sale" clause, or if
any of the other conditions set forth in the proviso to the preceding sentence
apply, the Master Servicer will enter into an assumption and modification
agreement from or with the person to whom such property has been conveyed or
is proposed to be conveyed, pursuant to which such person becomes liable under
the Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. The Master Servicer is also authorized to
enter into a substitution of liability agreement with such person, pursuant to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note,
provided that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Master Servicer and has a credit
risk rating at least equal to that of the original Mortgagor. In connection
with any assumption or substitution, the Master Servicer shall apply such
underwriting standards and follow such practices and procedures as shall be
normal and usual in its general mortgage servicing activities and as it
applies to other mortgage loans owned solely by it. The Master Servicer shall
not take or enter into any assumption and modification agreement, however,
unless (to the extent practicable in the circumstances) it shall have received
confirmation, in writing, of the continued effectiveness of any applicable
hazard insurance policy. Any fee collected by the Master Servicer in respect
of an assumption, modification or substitution of liability agreement shall be
retained by the Master Servicer as additional servicing compensation. In
connection with any such assumption, no material term of the Mortgage Note
(including but not limited to the related Mortgage Rate and the amount of the
Monthly Payment) may be amended or modified, except as otherwise required
pursuant to the terms thereof. The Master Servicer shall notify the Trustee
that any such substitution, modification or assumption agreement has been
completed by forwarding to the Trustee the executed original of such
substitution, modification or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered
a part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption
of a Mortgage Loan by operation of law or by the terms of the Mortgage Note or
any assumption which the Master Servicer may be restricted by law from
preventing, for any reason whatever. For purposes of this Section 3.15, the
term
62
"assumption" is deemed to also include a sale (of the Mortgaged Property)
subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
SECTION 3.16. Realization upon Defaulted Mortgage Loans.
-----------------------------------------
(a) The Master Servicer shall use its best efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans (including selling
any such Mortgage Loans other than converting the ownership of the related
properties) as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07; provided, however, that the Master Servicer shall
commence such proceedings in respect of any Mortgage Loan which is 120 days or
more delinquent. The Master Servicer shall be responsible for all costs and
expenses incurred by it in any such proceedings; provided, however, that such
costs and expenses will be recoverable as Servicing Advances by the Master
Servicer as contemplated in Section 3.11 and Section 3.23. The foregoing is
subject to the provision that, in any case in which Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Master Servicer shall not be
required to expend its own funds toward the restoration of such property
unless it shall determine in its discretion that such restoration will
increase the proceeds of liquidation of the related Mortgage Loan after
reimbursement to itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section 3.16 or any
other provision of this Agreement, with respect to any Mortgage Loan as to
which the Master Servicer has received actual notice of, or has actual
knowledge of, the presence of any toxic or hazardous substance on the related
Mortgaged Property, the Master Servicer shall not, on behalf of the Trustee,
either (i) obtain title to such Mortgaged Property as a result of or in lieu
of foreclosure or otherwise, or (ii) otherwise acquire possession of, or take
any other action with respect to, such Mortgaged Property, if, as a result of
any such action, the Trustee, the Trust Fund or the Certificateholders would
be considered to hold title to, to be a "mortgagee-in-possession" of, or to be
an "owner" or "operator" of such Mortgaged Property within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended from time to time, or any comparable law, unless the Master
Servicer has also previously determined, based on its reasonable judgment and
a report prepared by a Person who regularly conducts environmental audits
using customary industry standards, that:
(i) such Mortgaged Property is in compliance with
applicable environmental laws or, if not, that it would be in the best
economic interest of the Trust Fund to take such actions as are
necessary to bring the Mortgaged Property into compliance therewith;
and
(ii) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based
materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any federal, state or
local law or regulation, or that if any such materials are present for
which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect
to the affected Mortgaged Property.
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The cost of the environmental audit report contemplated by this Section
3.16 shall be advanced by the Master Servicer, subject to the Master
Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.11(a)(vii), such right of reimbursement being prior to
the rights of Certificateholders to receive any amount in the Collection
Account received in respect of the affected Mortgage Loan or other Mortgage
Loans.
If the Master Servicer determines, as described above, that it is in the
best economic interest of the Trust Fund to take such actions as are necessary
to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials,
hazardous wastes or petroleum-based materials affecting any such Mortgaged
Property, then the Master Servicer shall take such action as it deems to be in
the best economic interest of the Trust Fund; provided that any amounts
disbursed by the Master Servicer pursuant to this Section 3.16(b) shall
constitute Servicing Advances, subject to Section 4.05(d). The cost of any
such compliance, containment, cleanup or remediation shall be advanced by the
Master Servicer, subject to the Master Servicer's right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a)(iii) and
(a)(vii), such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Collection Account received in
respect of the affected Mortgage Loan or other Mortgage Loans.
(c) The Master Servicer may at its option purchase from the Trust Fund,
any Mortgage Loan or related REO Property that is 90 days or more delinquent,
which the Master Servicer determines in good faith will otherwise become
subject to foreclosure proceedings (evidence of such determination to be
delivered in writing to the Trustee prior to purchase), at a price equal to
the Purchase Price. The Purchase Price for any Mortgage Loan or related REO
Property purchased hereunder shall be deposited in the Distribution Account,
and the Trustee, upon receipt of such deposit, shall release or cause to be
released to the Master Servicer the related Mortgage File and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as the Master Servicer shall furnish and as shall be necessary to
vest in it title to any Mortgage Loan or related REO Property released
pursuant hereto.
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds or Liquidation Proceeds, in respect of any Mortgage Loan,
will be applied in the following order of priority: first, to reimburse the
Master Servicer or any Servicer for any related unreimbursed Servicing
Advances and Advances, pursuant to Section 3.11(a)(ii) or (a)(iii); second, to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than the
full amount of accrued and unpaid interest due on such Mortgage Loan, the
amount of such recovery will be allocated by the Master Servicer as follows:
first, to unpaid Master Servicing Fees and Servicing Fees; and second, to the
balance of the interest then due and owing. The portion of the recovery so
allocated to unpaid Master Servicing Fees and Servicing Fees shall be
reimbursed to the Master Servicer or any Servicer pursuant to Section
3.11(a)(iii).
64
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files.
-----------------------------------------------
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer shall, or shall cause
the applicable Servicer to, deliver to the Trustee (or the applicable
Custodian) two executed copies of a completed certification (which
certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required
to be deposited in the Collection Account pursuant to Section 3.10 have been
or will be so deposited) of a Servicing Officer and shall request the Trustee
or the applicable Custodian to deliver the applicable Mortgage File to the
Master Servicer or the applicable Servicer. Upon receipt of such certification
and request, the Trustee, or the Custodian as agent of the Trustee, shall,
within five Business Days, release and send by overnight mail, at the expense
of the Master Servicer or the applicable Servicer, the related Mortgage File
to the Master Servicer or the applicable Servicer. If the Trustee is the
Custodian, the Trustee agrees to indemnify the Master Servicer or the
applicable Servicer, out of its own funds, for any loss, liability or expense
(other than special, indirect, punitive or consequential damages which will
not be paid by the Trustee) incurred by the Master Servicer as a proximate
result of the Trustee's breach of its obligations pursuant to this Section
3.17. No expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to the Collection Account or the
Distribution Account.
(b) From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan, including, for this purpose, collection under any
insurance policy relating to the Mortgage Loans, the Trustee, or the Custodian
as agent of the Trustee, shall, upon any request made by or on behalf of the
Master Servicer or a Servicer and delivery to the Trustee or the Custodian of
a Request for Release in the form of Exhibit F, release the related Mortgage
File to the Master Servicer or the applicable Servicer, and the Trustee, or
the Custodian as agent of the Trustee, shall, at the direction of the Master
Servicer or the applicable Servicer, execute such documents as shall be
necessary to the prosecution of any such proceedings. Such Request for Release
shall obligate the Master Servicer or the applicable Servicer to return each
and every document previously requested from the Mortgage File to the Trustee,
or the Custodian as agent of the Trustee, when the need therefor by the Master
Servicer or the applicable Servicer no longer exists, unless the Mortgage Loan
has been liquidated and the Liquidation Proceeds relating to the Mortgage Loan
have been deposited in the Collection Account or the Mortgage File or such
document has been delivered to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged
Property either judicially or non-judicially, and the Master Servicer or the
applicable Servicer has delivered, or caused to be delivered, to the Trustee,
or the Custodian as agent of the Trustee, an additional Request for Release
certifying as to such liquidation or action or proceedings. Upon the request
of the Trustee, or the Custodian as agent of the Trustee, the Master Servicer
or the applicable Servicer shall provide notice to the Trustee, or the
Custodian as agent of the Trustee, of 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. Upon receipt of a certificate of a Servicing
Officer stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation that are
required to be deposited into the Collection Account have been so deposited,
or that such Mortgage Loan has become an REO Property, any outstanding
Requests for Release with respect
65
to such Mortgage Loan shall be released by the Trustee or the Custodian to the
Master Servicer or its designee.
(c) Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Master Servicer or the Servicer, as the case may
be, copies of, any court pleadings, requests for trustee's sale or other
documents necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. Each such
certification shall include a request that such pleadings or documents be
executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure
or trustee's sale.
SECTION 3.18. Servicing Compensation.
----------------------
As compensation for the activities of the Master Servicer hereunder, the
Master Servicer shall be entitled to the Master Servicing Fee with respect to
each Mortgage Loan payable solely from payments of interest in respect of such
Mortgage Loan.
Additional servicing compensation in the form of assumption fees,
ancillary income and late payment charges, insufficient funds charges or
otherwise shall be retained by the Master Servicer or the applicable Servicer
only to the extent such fees or charges are received by the Master Servicer or
applicable Servicer. The Master Servicer shall also be entitled pursuant to
Section 3.11(a)(iv) to withdraw from the Collection Account amounts described
in such section and to withdraw from any REO Account, amounts described in
Section 3.23(b), in each case, as additional servicing compensation, subject
to Section 3.12 and Section 3.24. The Master Servicer shall be required to pay
all expenses incurred by it in connection with its servicing activities
hereunder (including premiums for the insurance required by Section 3.14, to
the extent such premiums are not paid by the related Mortgagors) and shall not
be entitled to reimbursement therefor except as specifically provided herein.
SECTION 3.19. Reports to the Trustee; Collection Account Statements.
-----------------------------------------------------
Not later than 15 days after each Distribution Date, the Master Servicer
shall forward a statement, certified by a Servicing Officer, to the Trustee
setting forth the status of the Collection Account as of the close of business
on such Distribution Date and showing, for the period covered by such
statement, the aggregate of deposits into and withdrawals from the Certificate
Account.
SECTION 3.20. Statement as to Compliance.
--------------------------
The Master Servicer shall deliver to the Trustee, 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,
66
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. Copies of such statement shall be provided by
the Master Servicer to Certificateholders upon request or by the Trustee
(solely to the extent that such copies are available to the Trustee) at the
expense of the Master Servicer, should the Master Servicer fail to so provide
such copies.
SECTION 3.21. Independent Public Accountants' Servicing Report.
------------------------------------------------
On or before April 30 of each year, beginning with the first April 30
succeeding the Cut-Off Date by at least six months, the Master Servicer, at
its expense, shall cause a firm of independent public accountants to furnish a
statement to the Trustee 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 its obligations hereunder, 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 3.22. Access to Certain Documentation; Filing of Reports by
-------------------------------------------------
Trustee.
-------
(a) In the event that the Certificates are legal for investment by
federally-insured savings associations, the Master Servicer shall provide to
the OTS, the FDIC and the supervisory agents and examiners of the OTS and the
FDIC access to the documentation regarding the related Mortgage Loans required
by applicable regulations of the OTS or the FDIC, as applicable, and shall in
any event provide such access to the documentation regarding such Mortgage
Loans to the Trustee and its representatives, such access being afforded
without charge, but only upon reasonable request and during normal business
hours at the offices of the Master Servicer designated by it.
(b) The Trustee shall, on behalf of the Trust Fund, prepare, sign and
file with the Securities and Exchange Commission any and all reports, statements
and information respecting the Trust which the Depositor determines are required
to be filed with the Securities and Exchange Commission pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, each such
report, statement and information to be filed on or prior to the required filing
date for such report, statement or information. Upon the request of the Trustee,
the Seller, and the Depositor shall cooperate with the Trustee in the
preparation of any such report and shall provide to the Trustee in a timely
manner all such information or documentation as the Trustee may reasonably
request in connection with the performance of its duties and obligations under
this Section.
SECTION 3.23. Title, Management and Diposition of REO Property.
-----------------------------------------------
(a) The deed or certificate of sale of any REO Property shall be
taken in the name of the Trustee, or its nominee, in trust for the benefit of
the Certificateholders. The Master Servicer, on behalf of the related REMIC,
shall either sell any REO Property by the end of the third full taxable year
after the taxable year in which such REMIC acquires ownership of such REO
67
Property for purposes of Section 860G(a)(8) of the Code or request from the
Internal Revenue Service, no later than 61 days before the day on which the
three-year grace period would otherwise expire, an extension of such
three-year period, unless the Master Servicer shall have delivered to the
Trustee an Opinion of Counsel, addressed to the Trustee and the Depositor, to
the effect that the holding by such REMIC of such REO Property subsequent to
three years after its acquisition will not result in the imposition on such
REMIC of taxes on "prohibited transactions" thereof, as defined in Section
860F of the Code, or cause such REMIC to fail to qualify as a REMIC under
Federal law at any time that any Certificates are outstanding. The Master
Servicer shall manage, conserve, protect and operate each REO Property for the
Certificateholders solely for the purpose of its prompt disposition and sale
in a manner which does not 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 such REMIC of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code, or any "net income
from foreclosure property" which is subject to taxation under the REMIC
Provisions.
(b) The Master Servicer shall separately account for all funds
collected and received in connection with the operation of any REO Property
and shall establish and maintain, or cause to be established and maintained,
with respect to REO Properties an account held in trust for the Trustee for
the benefit of the Certificateholders (the "REO Account"), which shall be an
Eligible Account. The Master Servicer shall be permitted to allow the
Collection Account to serve as the REO Account, subject to separate ledgers
for each REO Property. The Master Servicer shall be entitled to retain or
withdraw any interest income paid on funds deposited in the REO Account.
(c) The Master Servicer shall have full power and authority, subject
only to the specific requirements and prohibitions of this Agreement, to do
any and all things in connection with any REO Property as are consistent with
the manner in which the Master Servicer manages and operates similar property
owned by the Master Servicer or any of its Affiliates, all on such terms and
for such period as the Master Servicer deems to be in the best interests of
Certificateholders. In connection therewith, the Master Servicer shall
deposit, or cause to be deposited in the clearing account in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Master Servicer's receipt thereof, and
shall thereafter deposit in the REO Account, in no event more than two
Business Days after the Master Servicer's receipt thereof, all revenues
received by it with respect to an REO Property and shall withdraw therefrom
funds necessary for the proper operation, management and maintenance of such
REO Property including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with respect to
an REO Property are insufficient for the purposes set forth in clauses (i)
through (iii) above with respect to such REO Property, the Master Servicer
shall advance from its own funds such amount as is necessary for such purposes
if, but only if, the Master Servicer would make such advances if the
68
Master Servicer owned the REO Property and if in the Master Servicer's
judgment, the payment of such amounts will be recoverable from the rental or
sale of the REO Property.
Notwithstanding the foregoing, neither the Master Servicer nor the
Trustee shall:
(i) authorize the Trust Fund to enter into, renew or extend
any new lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents from
Real Property;
(ii) authorize any amount to be received or accrued under any
new lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize any construction on any REO Property, other
than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or
other improvement was completed before default on the related Mortgage
Loan became imminent, all within the meaning of Section 856(e)(4)(B) of
the Code; or
(iv) authorize any Person to Directly Operate any REO Property
on any date more than 90 days after its date of acquisition by the Trust
Fund;
unless, in any such case, the Master Servicer has obtained an Opinion of
Counsel, provided to the Trustee, to the effect that such action will not
cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code at any time that it is held by
the related REMIC, in which case the Master Servicer may take such actions as
are specified in such Opinion of Counsel.
The Master Servicer may contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above and remit all related revenues
(net of such costs and expenses) to the Master Servicer as soon as
practicable, but in no event later than thirty days following the receipt
thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.23(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Master Servicer of any of its
duties and obligations to the Trustee on behalf of the Certificateholders
with respect to the operation and management of any such REO Property;
and
(iv) the Master Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
69
The Master Servicer shall be entitled to enter into any agreement with
any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Master Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. The Master Servicer shall be solely liable for
all fees owed by it to any such Independent Contractor, irrespective of
whether the Master Servicer's compensation pursuant to Section 3.18 is
sufficient to pay such fees; provided, however, that to the extent that any
payments made by such Independent Contractor would constitute Servicing
Advances if made by the Master Servicer, such amounts shall be reimbursable as
Servicing Advances made by the Master Servicer.
(d) In addition to the withdrawals permitted under Section 3.23(c), the
Master Servicer may from time to time make withdrawals from the REO Account
for any REO Property: (i) to pay itself or any Servicer unpaid Servicing Fees
in respect of the related Mortgage Loan; and (ii) to reimburse itself or any
Servicer for unreimbursed Servicing Advances and Advances made in respect of
such REO Property or the related Mortgage Loan. On the Master Servicer
Remittance Date, the Master Servicer shall withdraw from each REO Account
maintained by it and deposit into the Distribution Account in accordance with
Section 3.10(d)(ii), for distribution on the related Distribution Date in
accordance with Section 4.01, the income from the related REO Property
received during the prior calendar month, net of any withdrawals made pursuant
to Section 3.23(c) or this Section 3.23(d).
(e) Subject to the time constraints set forth in Section 3.23(a), each
REO Disposition shall be carried out by the Master Servicer at such price and
upon such terms and conditions as the Master Servicer shall deem necessary or
advisable, as shall be normal and usual in its Servicing Standard.
(f) The proceeds from the REO Disposition, net of any amount required by
law to be remitted to the Mortgagor under the related Mortgage Loan and net of
any payment or reimbursement to the Master Servicer or any Servicer as
provided above, shall be deposited in the Distribution Account in accordance
with Section 3.10(d)(ii) on the Master Servicer Remittance Date in the month
following the receipt thereof for distribution on the related Distribution
Date in accordance with Section 4.01. Any REO Disposition shall be for cash
only (unless changes in the REMIC Provisions made subsequent to the Startup
Day allow a sale for other consideration).
(g) The Master Servicer shall file information returns with respect to
the receipt of mortgage interest received in a trade or business, reports of
foreclosures and abandonments of any Mortgaged Property and cancellation of
indebtedness income with respect to any Mortgaged Property as required by
Sections 6050H, 6050J and 6050P of the Code, respectively. Such reports shall
be in form and substance sufficient to meet the reporting requirements imposed
by such Sections 6050H, 6050J and 6050P of the Code.
SECTION 3.24. Obligations of the Master Servicer in Respect of Prepayment
-----------------------------------------------------------
Interest Shortfalls.
--------------------
Not later than the Close of Business on each Master Servicer Remittance
Date, the Master Servicer shall remit to the Collection Account an amount equal
to the Compensating Interest Payment for such date. The amount of the Master
Servicing Fee payable to the Master
70
Servicer in respect of any Distribution Date shall be reduced by the amount of
any Compensating Interest Payment for such Distribution Date.
SECTION 3.25. [Reserved].
----------
SECTION 3.26. [Reserved].
----------
SECTION 3.27. [Reserved].
----------
SECTION 3.28. Representations and Warranties of the Master Servicer.
-----------------------------------------------------
(a) The Master Servicer hereby represents and warrants to the Depositor
and the Trustee, for the benefit of the Certificateholders, as of the Closing
Date that:
(i) it is validly existing and in good standing under the
jurisdiction of its formation, and as Master Servicer has full power and
authority to transact any and all business contemplated by this Agreement
and to execute, deliver and comply with its obligations under the terms
of this Agreement, the execution, delivery and performance of which have
been duly authorized by all necessary corporate action on the part of the
Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is
bound or to which any of its assets are subject, which violation, default
or breach would materially and adversely affect the Master Servicer's
ability to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
in general, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default
would materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or
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any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) the Master Servicer, or an Affiliate thereof the primary
business of which is the servicing of conventional residential mortgage
loans, is an ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved seller/servicer;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations and orders (if any) as have been obtained;
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer;
and
(x) the Master Servicer has obtained an Errors and Omissions
Insurance Policy and a Fidelity Bond in accordance with Section 3.14,
each of which is in full force and effect, and each of which provides at
least such coverage as is required hereunder.
It is understood and agreed that the representations and warranties set
forth in this Section 3.28 shall survive the execution and delivery of this
Agreement. The Master Servicer shall indemnify the Depositor, the Seller 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 third party claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the Master
Servicer's representations and warranties contained in Section 3.28(a).
Notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall not be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits).
It is understood and agreed that the enforcement of the obligation of the
Master Servicer set forth in this Section to indemnify the Depositor, the
Seller and the Trustee as provided in this Section constitutes the sole remedy
(other than as set forth in Section 7.02) of the Depositor, the Seller and the
Trustee, respecting a breach of the foregoing representations and warranties.
Such indemnification shall survive any termination of the Master Servicer as
Master Servicer hereunder.
Any cause of action against the Master Servicer relating to or arising
out of the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by the Depositor, the Master
Servicer, the Seller or the Trustee or notice thereof by any one of such
parties to the other parties.
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It is understood and agreed that the representations and warranties of
the Depositor set forth in Sections 2.06(i), (ii), (v), (vi), (vii), and (ix)
shall survive the execution and delivery of this Agreement. The Depositor
shall indemnify the Master Servicer and hold it harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and other costs and expenses resulting from any third party 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
2.06(i), (ii), (v), (vi), (vii), and (ix) hereof. It is understood and agreed
that the enforcement of the obligation of the Depositor set forth in this
Section to indemnify the Master Servicer as provided in this Section
constitutes the sole remedy of the Master Servicer respecting a breach by the
Depositor of the representations and warranties in Sections 2.06(i), (ii),
(v), (vi), (vii), and (ix) hereof.
Any cause of action against the Depositor relating to or arising out of
the breach of the representations and warranties made in Sections 2.06(i),
(ii), (v), (vi), (vii), and (ix) hereof shall accrue upon discovery of such
breach by either the Depositor or the Master Servicer or notice thereof by any
one of such parties to the other parties.
SECTION 3.29. Closing Certificate and Opinion.
-------------------------------
On or before the Closing Date, the Master Servicer shall cause to be
delivered to the Depositor, the Seller, the Trustee, and Greenwich Capital
Markets, Inc. an Opinion of Counsel, dated the Closing Date, in form and
substance reasonably satisfactory to the Depositor, Greenwich Capital Markets,
Inc., and the Seller as to the due authorization, execution and delivery of
this Agreement by the Master Servicer and the enforceability thereof.
SECTION 3.30. Duties of the Loss Mitigation Advisor.
-------------------------------------
(a) The Certificateholders, by their purchase and acceptance of the
Certificates, appoint The Murrayhill Company as Loss Mitigation Advisor. For
and on behalf of the Depositor, the Master Servicer, the Trustee and the
Certificateholders, the Loss Mitigation Advisor will provide information and
recommendations concerning Mortgage Loans. All advice offered by the Loss
Mitigation Advisor to the Master Servicer shall be kept confidential by the
Loss Mitigation Advisor. The Loss Mitigation Advisor shall look solely to the
Master Servicer for all information and data (including loss and delinquency
information) and loan level information and data relating to the servicing of
the Mortgage Loans and the Trustee shall not have any obligation to provide
any such information to the Loss Mitigation Advisor.
(b) If requested by the Loss Mitigation Advisor, the Master Servicer
shall authorize the related Servicers, during their normal business hours, to
respond to reasonable inquiries, transmitted by the Loss Mitigation Advisor in
connection with any Mortgage Loan that is at least 30 days delinquent and any
REO Property, provided that the Servicer shall only be required to provide
information that is readily accessible and available to its personnel. In the
event any Servicer fails to provide the Loss Mitigation Advisor with any
information requested of it, the Master Servicer shall, upon the Loss Mitigation
Advisor's written request, direct the related Servicer to provide such
information to the Loss Mitigation Advisor to the same extent that the Servicer
is required to provide such information to the Master Servicer pursuant to the
Servicing Agreement.
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(c) The Loss Mitigation Advisor shall be entitled to compensation from
time to time as agreed to by it and the Seller (or an Affiliate of the
Seller).
SECTION 3.31. Limitation Upon Liability of the Loss Mitigation Advisor.
-------------------------------------------------------
Neither the Loss Mitigation Advisor, nor any of the directors, officers,
employees or agents of the Loss Mitigation Advisor, shall be under any
liability to the Trustee, the Certificateholders or the Depositor for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement or for errors in judgment; provided, however, that
this provision shall not protect the Loss Mitigation Advisor or any such
person against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties or
by reason of reckless disregard for its obligations and duties under this
Agreement. The Loss Mitigation Advisor and any director, officer, employee or
agent of the Loss Mitigation Advisor may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder, and may rely in good faith upon the accuracy of
information furnished by the Master Servicer and any Servicer.
SECTION 3.32. Limitation on Liability of the Master Servicer.
----------------------------------------------
Neither the Master Servicer nor any of the directors, officers, employees
or agents of the Master Servicer shall be under any liability to the Trust
Fund or the Certificateholders for any action taken by such Person or by a
Servicer or for such Person's or Servicer's refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Master Servicer
or any such Person against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of duties and obligations hereunder.
ARTICLE IV
FLOW OF FUNDS
SECTION 4.01. Distributions.
-------------
(a) On each Distribution Date, the Trustee shall withdraw funds on
deposit in the Distribution Account to the extent of Available Funds for such
Distribution Date and make the following disbursements and transfers in the
order of priority set forth below:
(i) to the Holders of the Senior Certificates, the related Interest
Distributable Amounts for that date, pro rata (based on the Interest
Distributable Amount to which each such Class is entitled); and
(ii) from the Principal Distribution Amount for such Distribution Date,
an amount equal to the Senior Principal Distribution Amount for that date,
in the following order of priority:
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(A) first, to the Holder of Class A-R Certificate, until the
Class Certificate Principal Balance of such Class is
reduced to zero, and
(B) second, to the Holders of the Class A Certificates, until
the Class Certificate Principal Balance of such Class is
reduced to zero;
(iii) the Available Funds remaining after giving effect to the
distributions specified in subsections (i) and (ii) above will be
distributed to the Certificateholders in the following order of priority:
(A) to the Holders of the Class B-1 Certificates, the related
Interest Distributable Amount for that date;
(B) to the Holders of the Class B-1 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(C) to the Holders of the Class B-2 Certificates, the related
Interest Distributable Amount for that date;
(D) to the Holders of the Class B-2 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(E) to the Holders of the Class B-3 Certificates, the related
Interest Distributable Amount for that date;
(F) to the Holders of the Class B-3 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(G) to the Holders of the Class B-4 Certificates, the related
Interest Distributable Amount for that date;
(H) to the Holders of the Class B-4 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(I) to the Holders of the Class B-5 Certificates, the related
Interest Distributable Amount for that date;
(J) to the Holders of the Class B-5 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date
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until the Class Certificate Principal Balance of such Class
is reduced to zero;
(K) to the Holders of the Class B-6 Certificates, the related
Interest Distributable Amount for that date;
(L) to the Holders of the Class B-6 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero; and
(M) to the Holder of the Class A-R Certificate, any Available
Funds then remaining.
(b) Amounts to be paid to the Holders of a Class of Certificates
shall be payable with respect to all Certificates of that Class, pro rata,
based on the Certificate Principal Balance or Certificate Notional Balance, as
applicable, of each Certificate of that Class.
(c) On each Distribution Date, the Trustee shall distribute to the
Class LTA-R Certificates any Residual Funds for such date.
(d) On each Distribution Date, the Interest Distributable Amounts for
the Classes of Senior Certificates and Subordinate Certificates on such
Distribution Date shall be reduced by the pro rata share of each such Class
in:
(i) Uncompensated Interest Shortfalls and Relief Act
Reductions, based on such Class's Interest Distributable Amount
without taking into account such Uncompensated Interest Shortfalls
and Relief Act Reductions;
(ii) after the Special Hazard Coverage Termination Date, with
respect to each Mortgage Loan that became a Special Hazard Mortgage
Loan during the related Prepayment Period, the excess of one month's
interest at the related Net Loan Rate on the Stated Principal Balance
of such Mortgage Loan as of such Distribution Date over the amount of
Liquidation Proceeds applied as interest on such Mortgage Loan with
respect to such related Prepayment Period;
(iii) after the Bankruptcy Coverage Termination Date, with
respect to each Mortgage Loan that became subject to a Bankruptcy
Loss during the related Prepayment Period, the interest portion of
the related Debt Service Reduction or Deficient Valuation; and
(iv) after the Fraud Coverage Termination Date, with respect
to each Mortgage Loan that became a Fraud Loan during the related
Prepayment Period, the excess of one month's interest at the related
Net Loan Rate on the Stated Principal Balance of such Mortgage Loan
as of such Distribution Date over the amount of Liquidation Proceeds
applied as interest on such Mortgage Loan with respect to such month.
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(e) Notwithstanding the priority and allocation set forth in Section
4.01(a)(iii) above, if with respect to any Class of Subordinate Certificates on
any Distribution Date the sum of the related Class Subordination Percentages of
such Class and of all other Classes of Subordinate Certificates which have a
higher numerical Class designation than such Class (the "APPLICABLE CREDIT
SUPPORT PERCENTAGE") is less than the Original Applicable Credit Support
Percentage for such Class, no distribution of Principal Prepayments will be made
to any such Classes (the "RESTRICTED CLASSES") and the amount of such Principal
Prepayment otherwise distributable to the Restricted Classes shall be
distributed to any Classes of Subordinate Certificates having lower numerical
Class designations than such Class, pro rata, based on the Class Certificate
Principal Balances of the respective Classes immediately prior to such
Distribution Date and shall be distributed in the sequential order provided in
Section 4.01(a)(iii) above.
(f) Distributions on Physical Certificates. The Trustee shall make
distributions in respect of a Distribution Date to each Certificateholder of
record on the related Record Date (other than as provided in Section 10.01
hereof respecting the final distribution), in the case of Certificateholders of
the Physical Certificates, by check or money order mailed to such
Certificateholder at the address appearing in the Certificate Register, or by
wire transfer. Distributions among Certificateholders of a Class shall be made
in proportion to the Percentage Interests evidenced by the Certificates of that
Class held by such Certificateholders.
(g) Distributions on Book-Entry Certificates. Each distribution with
respect to a Book-Entry Certificate shall be paid to the Depository, which shall
credit the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Trustee, the Depositor or the Seller shall have any
responsibility therefor.
SECTION 4.02. [Reserved].
SECTION 4.03. Allocation of Realized Losses.
------------------------------
(a) On or prior to each Determination Date, the Trustee shall aggregate
the loan-level information provided by the Master Servicer with respect to the
total amount of Realized Losses, including Excess Losses, with respect to the
Mortgage Loans for the related Distribution Date.
(b) Realized Losses, Bankruptcy Losses, Fraud Losses and Special Hazard
Losses with respect to any Distribution Date shall be allocated as follows:
(i) Realized Losses, Bankruptcy Losses, Fraud Losses and Special
Hazard Losses (other than Excess Losses) shall be allocated:
first, to the Subordinate Certificates in reverse order of
their respective numerical Class designations (beginning
with the Class of Subordinate Certificates with the
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highest numerical Class designation) until the Class
Certificate Principal Balance of each such Class is
reduced to zero; and
second, to the Senior Certificates, other than the Class X
Certificates, pro rata, until the Class Certificate
Principal Balance of each Class of Senior Certificates is
reduced to zero; and
(ii) any Excess Losses on the Mortgage Loans shall be allocated
to the Classes of Senior Certificates (other than the Class X
Certificates) and Subordinate Certificates, pro rata, on the basis of
the respective Class Certificate Principal Balances of such Classes of
Senior Certificates and Subordinate Certificates.
(c) The Class Certificate Principal Balance of the Class of
Subordinate Certificates then outstanding with the highest numerical Class
designation shall be reduced on each Distribution Date by the amount, if any,
by which the aggregate of the Class Certificate Principal Balances of all
outstanding Classes of Certificates (after giving effect to the distribution
of principal and the allocation of Realized Losses, Bankruptcy Losses, Fraud
Losses and Special Hazard Losses and Excess Losses on such Distribution Date)
exceeds the aggregate of the Stated Principal Balances of all the Mortgage
Loans for the following Distribution Date.
(d) Any Realized Loss, Bankruptcy Loss, Fraud Loss, Special Hazard
Loss or Excess Loss allocated to a Class of Certificates or any reduction in
the Class Certificate Principal Balance of a Class of Certificates pursuant to
Section 4.03(b) or (c) shall be allocated among the Certificates of such
Class, pro rata, in proportion to their respective Certificate Principal
Balances.
(e) Any allocation of Realized Losses to a Certificate or any
reduction in the Certificate Principal Balance of a Certificate pursuant to
Section 4.03(b) or (c) shall be accomplished by reducing the Certificate
Principal Balance thereof immediately following the distributions made on the
related Distribution Date in accordance with the definition of "Certificate
Principal Balance".
SECTION 4.04. Statements.
----------
(a) On each Distribution Date, based, as applicable, on loan-level
information provided to it by the Master Servicer, the Trustee shall make
available to each Holder of the Regular Certificates, the Seller, the Master
Servicer and the Rating Agency, a statement (the "DISTRIBUTION DATE STATEMENT")
as to the distributions made on such Distribution Date:
(i) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates allocable to
principal;
(ii) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates allocable to
interest;
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(iii) the Pro Rata Senior Percentage, Senior Percentage,
Senior Prepayment Percentage, Subordinate Percentage and Subordinate
Prepayment Percentage for the following Distribution Date;
(iv) the aggregate amount of servicing compensation received
by each Servicer during the related Due Period and such other customary
information as the Trustee deems necessary or desirable, or which a
Certificateholder reasonably requests, to enable Certificateholders to
prepare their tax returns;
(v) the aggregate amount of Advances for the related Due
Period and the amount of unreimbursed Advances;
(vi) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, each as of the
related Determination Date;
(vii) the Pool Balance and Net WAC for all Mortgage Loans at
the Close of Business at the end of the related Due Period;
(viii) the aggregate Principal Balance of the One-Year CMT
Indexed, Three-Year CMT Indexed and Five-Year CMT Indexed Mortgage Loans
at the Close of Business at the end of the related Due Period;
(ix) the aggregate Principal Balance of the Six-Month LIBOR
Indexed, One-Month LIBOR Indexed and One-Year LIBOR Indexed Mortgage
Loans at the Close of Business at the end of the related Due Period;
(x) the amount of the Master Servicing Fees and Servicing
Fees, if any;
(xi) the number, weighted average remaining term to maturity
and weighted average Loan Rate of the Mortgage Loans as of the related
Due Date;
(xii) the number and aggregate unpaid principal balance of
Mortgage Loans (a) 30 to 59 days Delinquent, (b) 60 to 89 days
Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure
proceedings have been commenced and (e) in bankruptcy, in each case as of
the close of business on the last day of the preceding calendar month;
(xiii) the book value of any REO Property as of the Close of
Business on the last Business Day of the calendar month preceding the
Distribution Date, and, cumulatively, the total number and cumulative
principal balance of all REO Properties as of the Close of Business of
the last day of the preceding Due Period;
(xiv) the aggregate amount of Principal Prepayments made
during the related Prepayment Period;
(xv) the aggregate amount of Realized Losses incurred during
the related Due Period and the cumulative amount of Realized Losses;
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(xvi) the Class Certificate Principal Balance of each Class of
Certificates (other than the Class LTA-R and Class X Certificates) and
the Class Certificate Notional Balances of the Class X Certificates, in
each case after giving effect to any distributions made thereon, on such
Distribution Date;
(xvii) the Interest Distributable Amount in respect of each
Class of Certificates, for such Distribution Date and the respective
portions thereof, if any, remaining unpaid following the distributions
made in respect of such Certificates on such Distribution Date;
(xviii) the aggregate amount of any Prepayment Interest
Shortfalls and the Unpaid Interest Shortfall Amount for such Distribution
Date, to the extent not covered by payments by the Servicers pursuant to
the applicable terms of their respective Servicing Agreements or the
Master Servicer;
(xix) the Available Funds;
(xx) the Pass-Through Rate for each Class of Certificates for
such Distribution Date;
(xxi) any amounts distributed to the Class LTA-R Certificates;
and
(xxii) the aggregate Principal Balance of Mortgage Loans
purchased hereunder by the Seller during the related Due Period, and
indicating the relevant section of the related Servicing Agreement, or
the Section of this Agreement, as applicable, requiring or allowing the
purchase of each such Mortgage Loan.
The Trustee will make the Distribution Date Statement (and, at its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders and the other parties to
this Agreement via the Trustee's internet website and its fax-on-demand
service and will forward the Distribution Date Statement to the Rating Agency.
The Trustee's internet website shall initially be located at
"▇▇▇▇://▇▇▇-▇▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇-▇▇▇▇.▇▇▇/▇▇▇▇". Parties that are unable to use
the above distribution options are entitled to have a paper copy mailed to
them via first class mail by calling the customer service desk and requesting
same. The Trustee shall have the right to change the way Distribution Date
Statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Trustee shall provide
timely and adequate notification to all the above parties regarding any such
changes. The Trustee's obligations pursuant to this Section 4.04 are limited
to the extent of its receipt of all necessary information from the Master
Servicer. The Trustee may fully rely upon and shall have no liability with
respect to information provided by the Master Servicer.
In the case of information furnished pursuant to subclauses (i) and (ii)
above, the amounts shall be expressed in a separate section of the report as a
dollar amount for each Class for each $1,000 original dollar amount as of the
Cut-Off Date.
(b) Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon written request, furnish to each Person who at
any time during the calendar year was a Certificateholder of a Regular
Certificate, if requested in writing by such Person, such
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information as is reasonably necessary to provide to such Person a statement
containing the information set forth in subclauses (i) through (iii) and (xxi)
above, aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be prepared and furnished by the Trustee to
Certificateholders pursuant to any requirements of the Code as are in force
from time to time.
(c) On each Distribution Date, the Trustee shall supply an electronic
tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg
Financial Markets, Inc. on a monthly basis, and shall supply an electronic tape
to Mortgage Information Corporation in a format acceptable to Mortgage
Information Corporation on a monthly basis.
(d) On each Distribution Date, the Master Servicer shall provide the
Trustee the following information with respect to each Mortgage Loan (the
"Remittance Report"):
(i) the Mortgage Loan identifying number;
(II) [[reserved]];
(iii) the current Loan Rate as of the end of the related Due
Period;
(iv) the related Servicing Fee Rate;
(v) the current Monthly Payment due as of the end of the related
Due Period;
(vi) the next scheduled Due Date as of the end of the related
Due Period;
(vii) the next Adjustment Date of the Mortgage Loan as of the
end of the related Due Period, if applicable;
(viii) the Stated Principal Balance of the Mortgage Loan
immediately prior to the related Due Period;
(ix) the Stated Principal Balance of the Mortgage Loan as of the
end of the related Due Period;
(x) [reserved];
(xi) the aggregate of all interest received on the Mortgage
Loan, including Advances;
(xii) [reserved];
(xiii) the aggregate of all scheduled principal payments
received on the Mortgage Loans, including Advances;
(xiv) Principal Prepayments in part;
(xv) Principal Prepayments in full;
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(xvi) the delinquency status of the Mortgage Loan (i.e., 0, 30,
60, 90+ days Delinquent);
(xvii) [reserved];
(xviii) an indication as to whether the Mortgage Loan is in
foreclosure;
(xix) an indication as to whether the related Mortgaged Property
has become an REO Property;
(xx) the date of bankruptcy of the Mortgagor, if any;
(xxi) the date of foreclosure, if any;
(xxii) the date on which the related Mortgaged Property became
an REO Property;
(xxiii) for each Mortgage Loan for which a Liquidation Event has
occurred, whether such Mortgage Loan (i) has been paid in full, (ii) is
a Liquidated Mortgage Loan or (iii) has been repurchased or replaced;
(xxiv) [reserved];
(xxv) the Stated Principal Balance of the Mortgage Loan on the
date on which a Liquidation Event occurs;
(xxvi) Liquidation Proceeds;
(xxvii) Net Liquidation Proceeds;
(xxviii) Realized Losses;
(xxix) Net Prepayment Interest Shortfalls;
(xxx) Relief Act Reductions;
(xxxi) the aggregate of all scheduled interest received on the
Mortgage Loans, excluding Advances;
(xxxii) the aggregate of all scheduled principal received on the
Mortgage Loans, excluding Advances;
(xxxiii) the current amount of Advances outstanding;
(xxxiv) the amount advanced by the related Servicer;
(xxxv) the amount of principal advanced by the related Servicer;
and
(xxxvi) the amount of interest advanced by the related Servicer
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SECTION 4.05. Remittance Reports; Advances.
----------------------------
(a) No later than the second Business Day following each
Determination Date, the Master Servicer shall deliver to the Trustee by
telecopy or electronic mail (or by such other means as the Master Servicer and
the Trustee may agree from time to time) the Remittance Report with respect to
the related Distribution Date. Not later than the Close of Business New York
time three Business Days prior to the related Distribution Date, the Master
Servicer shall deliver or cause to be delivered to the Trustee in addition to
the information provided on the Remittance Report, such other loan-level
information reasonably available to it with respect to the Mortgage Loans as
the Trustee may reasonably require to perform the calculations necessary to
make the distributions contemplated by Section 4.01.
(b) The amount of Advances to be made by the Master Servicer for any
Distribution Date shall equal, subject to Section 4.05(d), the sum of (i) the
aggregate amount of Monthly Payments (net of the related Master Servicing Fee
and Servicing Fee), due during the related Due Period in respect of the
Mortgage Loans, which Monthly Payments were delinquent on a contractual basis
as of the Close of Business on the related Determination Date and (ii) with
respect to each REO Property, which REO Property was acquired during or prior
to the related Due Period and as to which REO Property an REO Disposition did
not occur during the related Due Period, an amount equal to the excess, if
any, of the REO Imputed Interest on such REO Property for the most recently
ended calendar month, over the net income from such REO Property transferred
to the Distribution Account pursuant to Section 3.23 for distribution on such
Distribution Date.
On or before the Close of Business New York time on the Master
Servicer Remittance Date, the Master Servicer shall remit in immediately
available funds to the Trustee for deposit in the Distribution Account an
amount equal to the aggregate amount of Advances, if any, to be made in
respect of the Mortgage Loans and REO Properties for the related Distribution
Date either (i) from its own funds or (ii) from the Collection Account, to the
extent of funds held therein for future distribution (in which case it will
cause to be made an appropriate entry in the records of Collection Account
that amounts held for future distribution have been, as permitted by this
Section 4.05, used by the Master Servicer in discharge of any such Advance) or
(iii) in the form of any combination of (i) and (ii) aggregating the total
amount of Advances to be made by the Master Servicer with respect to the
Mortgage Loans and REO Properties. Any amounts held for future distribution
and so used shall be appropriately reflected in the Master Servicer's records
and replaced by the Master Servicer by deposit in the Collection Account on or
before any future Master Servicer Remittance Date to the extent that the
Available Funds for the related Distribution Date (determined without regard
to Advances to be made on the Master Servicer Remittance Date) shall be less
than the total amount that would be distributed to the Classes of
Certificateholders pursuant to Section 4.01 on such Distribution Date if such
amounts held for future distributions had not been so used to make Advances.
The Trustee will promptly provide notice to the Master Servicer by telecopy in
the event that the amount remitted by the Master Servicer to the Trustee on
such date is less than the Advances required to be made by the Master Servicer
for the related Distribution Date, as set forth in the related Remittance
Report.
(c) The obligation of the Master Servicer to make such Advances is
mandatory, notwithstanding any other provision of this Agreement but subject
to (d) below, and, with respect
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to any Mortgage Loan, shall continue until the Mortgage Loan is paid in full or
until the recovery of all Liquidation Proceeds thereon.
(d) Notwithstanding anything herein to the contrary, no Advance or
Servicing Advance shall be required to be made hereunder by the Master
Servicer if such Advance or Servicing Advance would, if made, constitute a
Nonrecoverable Advance. The determination by the Master Servicer that it has
made a Nonrecoverable Advance or that any proposed Advance or Servicing
Advance, if made, would constitute a Nonrecoverable Advance, shall be
evidenced by an Officers' Certificate of the Master Servicer delivered to the
Depositor and the Trustee.
SECTION 4.06. Purchase of Certain Loans.
-------------------------
▇▇▇▇▇▇▇▇▇ shall have the option, but not the obligation, to repurchase any
(x) Converted Loans, and (y) Mortgage Loan 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 the
Seller 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) 0.25% 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 such repurchase pursuant to this Section
4.06 shall be 100% of the Principal Balance of such Mortgage Loan and accrued
and unpaid interest thereon, plus the outstanding amount of any Advances with
respect to such Mortgage Loan. In order to exercise its repurchase rights
hereunder, ▇▇▇▇▇▇▇▇▇ shall deliver to the Master Servicer a certificate
identifying the Mortgage Loan to be repurchased and certifying that (i) such
Mortgage Loan is either a Converted Loan or a Significant Modification Loan, and
(ii) in the case of a Mortgage Loan as to which is proposed to be the subject of
a Significant Modification, on the date of such repurchase, the Significant
Modification will be entered into.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
----------------
The Certificates shall be substantially in the form annexed hereto as
Exhibit A through E. Each of the Certificates shall, on original issue, be
executed, authenticated and delivered by the Trustee upon the written order of
the Depositor concurrently with the sale and assignment to the Trustee of the
Trust Fund. Each Class of the Regular Certificates shall be initially evidenced
by one or more Certificates representing a Percentage Interest with a minimum
dollar denomination of $25,000, in the case of the Class A, Class B-1, Class B-2
and Class B-3 Certificates, $100,000, in the case of the Class B-4, Class B-5
and Class B-6 Certificates, and $500,000 in Certificate Notional Balance, in the
case of the Class X Certificates and, in each case, integral dollar multiples of
$1 in excess thereof, except that one Certificate of each such Class of
Certificates may be in a different denomination so that the sum of the
denominations of all outstanding Certificates of such Class shall equal the
Class Certificate Principal Balance or Class
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Certificate Notional Balance of such Class on the Closing Date. Each of the
Class A-R and Class LTA-R Certificates is issuable only in a Percentage
Interest of 100%.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature on behalf of the Trustee by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures were affixed, authorized to sign on
behalf of the Trustee shall bind the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement or be valid for any purpose, unless such
Certificate shall have been manually authenticated by the Trustee
substantially in the form provided for herein, and such authentication 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. Subject to
Section 5.02(c), the Senior Certificates (other than the Residual
Certificates) and the Class B-1, Class B-2 and Class B-3 Certificates shall be
Book-Entry Certificates. The Residual Certificates and the Class B-4, Class
B-5 and Class B-6 Certificates shall be Physical Certificates.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) The Certificate Registrar shall cause to be kept at the Corporate
Trust Office a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for
the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall initially serve as
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Certificate Registrar maintained for such purpose
pursuant to the foregoing paragraph, the Trustee on behalf of the Trust shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same aggregate Percentage
Interest.
At the option of the Certificateholders, Certificates may be exchanged
for other Certificates in authorized denominations and the same aggregate
Percentage Interests, upon surrender of the Certificates to be exchanged at
any such office or agency. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute on behalf of the Trust and authenticate
and deliver the Certificates which the Certificateholder making the exchange
is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall (if so required by the Trustee or
the Certificate Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer satisfactory to the Trustee and the Certificate
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing.
(b) Except as provided in paragraph (c) below, the Book-Entry
Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration of such
Certificates may not be transferred by the Trustee or the Certificate
Registrar except to another Depository; (ii) the Depository shall maintain
book-entry records
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with respect to the Certificate Owners and with respect to ownership and
transfers of such Certificates; (iii) ownership and transfers of registration
of such Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (iv) the Depository may
collect its usual and customary fees, charges and expenses from its Depository
Participants; (v) the Trustee shall for all purposes deal with the Depository
as representative of the Certificate Owners of the Certificates for purposes
of exercising the rights of Holders under this Agreement, and requests and
directions for and votes of such representative shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners;
(vi) the Trustee and the Certificate Registrar may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants
with respect to indirect participating firms and Persons shown on the books of
such indirect participating firms as direct or indirect Certificate Owners;
and (vii) the direct participants of the Depository shall have no rights under
this Agreement under or with respect to any of the Certificates held on their
behalf by the Depository, and the Depository may be treated by the Trustee,
the Certificate Registrar and their respective agents, employees, officers and
directors as the absolute owner of the Certificates for all purposes
whatsoever.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owners. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners that it represents or of brokerage firms for which it acts
as agent in accordance with the Depository's normal procedures. The parties
hereto are hereby authorized to execute a Letter of Representations with the
Depository or take such other action as may be necessary or desirable to
register a Book-Entry Certificate to the Depository. In the event of any
conflict between the terms of any such Letter of Representation and this
Agreement, the terms of this Agreement shall control.
(c) If (i)(x) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to discharge properly
its responsibilities as Depository and (y) the Trustee or the Depositor is
unable to locate a qualified successor or (ii) the Depositor, at its sole
option, with the consent of the Trustee, elects to terminate the book-entry
system through the Depository, upon surrender to the Certificate Registrar of
the Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall, at the
Depositor's expense, in the case of (ii) above, or the Seller's expense, in
the case of (i) above, execute on behalf of the Trust and authenticate
definitive, fully registered certificates (the "DEFINITIVE CERTIFICATES").
Neither the Depositor nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Trustee, the Certificate Registrar, any Paying Agent and the
Depositor shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
(d) No transfer, sale, pledge or other disposition of any Private
Certificate shall be made unless such disposition is exempt from the
registration requirements of the 1933 Act, and any applicable state securities
laws or is made in accordance with the 1933 Act and laws. In the event of any
such transfer, (i) unless such transfer is made in reliance upon Rule 144A (as
evidenced by the investment letter delivered to the Trustee, in substantially
the form attached hereto as Exhibit J under the 1933 Act and, if so required
by the Trustee and the Depositor, a
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written Opinion of Counsel (which may be in-house counsel) acceptable to and
in form and substance reasonably satisfactory to the Trustee and the Depositor
is delivered to the Trustee and Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall not be an expense of the Trustee or the Depositor) or
(ii) the Trustee shall require the transferor to execute a transferor
certificate and the transferee to execute an investment letter acceptable to
and in form and substance reasonably satisfactory to the Depositor and the
Trustee certifying to the Depositor and the Trustee the facts surrounding such
transfer, which investment letter shall not be an expense of the Trustee or
the Depositor. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Seller
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate that is also a Physical
Certificate shall be made unless the Trustee shall have received either (i) a
representation from the transferee of such Certificate, acceptable to and in
form and substance satisfactory to the Trustee and the Depositor (such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit I hereto), to
the effect that such transferee is not an employee benefit plan subject to
Section 406 of ERISA or a plan or arrangement subject to Section 4975 of the
Code, nor a person acting on behalf of any such plan or arrangement nor using
the assets of any such plan or arrangement to effect such transfer or (ii)
except in the case of a Class LTA-R Certificate, if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) an Opinion of Counsel satisfactory to the Trustee,
which Opinion of Counsel shall not be an expense of either the Trustee or the
Trust, addressed to the Trustee, to the effect that the purchase and holding
of such ERISA-Restricted Certificate that is also a Physical Certificate will
not result in the assets of the Trust being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee or the Depositor to any obligation in addition to
those expressly undertaken in this Agreement or to any liability.
Notwithstanding anything else to the contrary herein, any purported transfer
of an ERISA-Restricted Certificate that is also a Physical Certificate to an
employee benefit plan subject to ERISA or Section 4975 of the Code without the
delivery to the Trustee of an Opinion of Counsel satisfactory to the Trustee
as described above shall be void and of no effect.
In the case of an ERISA-Restricted Certificate that is also a Book-Entry
Certificate, for purposes of clauses (i) or (ii) of the first sentence of the
preceding paragraph, such representations shall be deemed to have been made to
the Trustee by the transferee's acceptance of such ERISA-Restricted
Certificate that is also a Book-Entry Certificate (or the acceptance by a
Certificate Owner of the beneficial interest in such Certificate).
To the extent permitted under applicable law (including, but not limited
to, ERISA), neither the Trustee nor the Certificate Registrar shall have any
liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to the Holder
thereof or
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taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered by the Trustee or the
Certificate Registrar in accordance with the foregoing requirements. In
addition, neither the Trustee nor the Certificate Registrar shall be required
to monitor, determine or inquire as to compliance with the transfer
restrictions with respect to any ERISA-Restricted Certificate in the form of a
Book-Entry Certificate, and neither the Trustee nor the Certificate Registrar
shall have any liability for transfers of Book-Entry Certificates or any
interests therein made in violation of the restrictions on transfer described
in the Prospectus Supplement and this Agreement.
(e) Each Person who has or who acquires any Ownership Interest in the
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably appointed the Depositor or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause (v)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in the Class A-R Certificate may be
registered on the Closing Date and no Ownership Interest in a Residual
Certificate may thereafter be transferred, and the Trustee shall not
register the Transfer of a Residual Certificate unless, in addition to
the certificates required to be delivered under subsection (b) above, the
Trustee shall have been furnished with an affidavit ("TRANSFER
AFFIDAVIT") of the initial owner of the Class A-R Certificate or proposed
transferee of a Residual Certificate in the form attached hereto as
Exhibit L.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall as a condition to
registration of the transfer, require delivery to it, in form and
substance satisfactory to it, of each of the following:
A. a Transferor Certificate in the form of Exhibit K hereto
from the proposed transferee to the effect that such transferee is a
Permitted Transferee and that it is not acquiring an Ownership
Interest in such Residual Certificate that is the subject of the
proposed transfer as a nominee, trustee or agent for any Person who
is not a Permitted Transferee; and
B. a covenant of the proposed transferee to the effect that
the proposed transferee agrees to be bound by and to abide by the
transfer restrictions applicable to such Residual Certificate.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section, become a Holder of such Residual
Certificate, then the prior Holder of such Residual
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Certificate that is a Permitted Transferee shall, upon discovery that the
registration of Transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. Neither the Trustee nor the Certificate Registrar shall have
any liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section or for
making any distributions due on a Residual Certificate to the Holder
thereof or taking any other action with respect to such Holder under the
provisions of this Agreement so long as the Trustee received the
documents specified in clause (iii). The Trustee shall be entitled to
recover from any Holder of such Residual Certificate that was in fact not
a Permitted Transferee at the time such distributions were made all
distributions made on such Residual Certificate. Any such distributions
so recovered by the Trustee shall be distributed and delivered by the
Trustee to the last Holder of such Residual Certificate that is a
Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section, then the Trustee shall have the right but
not the obligation, without notice to the Holder of such Residual
Certificate or any other Person having an Ownership Interest therein, to
notify the Depositor to arrange for the sale of such Residual
Certificate. The proceeds of such sale, net of commissions (which may
include commissions payable to the Depositor or its affiliates in
connection with such sale), expenses and taxes due, if any, will be
remitted by the Trustee to the previous Holder of such Residual
Certificate that is a Permitted Transferee, except that in the event that
the Trustee determines that the Holder of such Residual Certificate may
be liable for any amount due under this Section or any other provisions
of this Agreement, the Trustee may withhold a corresponding amount from
such remittance as security for such claim. The terms and conditions of
any sale under this clause (v) shall be determined in the sole discretion
of the Trustee and it shall not be liable to any Person having an
Ownership Interest in such Residual Certificate as a result of its
exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section, then the Trustee upon receipt of reasonable
compensation will provide to the Internal Revenue Service, and to the
persons specified in Sections 860E(e)(3) and (6) of the Code, information
needed to compute the tax imposed under Section 860E(e)(5) of the Code on
transfers of residual interests to disqualified organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee and the Servicer, in form and substance satisfactory to the Trustee,
(i) written notification from the Rating Agency that the removal of the
restrictions on Transfer set forth in this Section will not cause such Rating
Agency to downgrade its rating of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause either REMIC hereunder
to fail to qualify as a REMIC.
(f) No service charge shall be made for any registration of transfer or
exchange of Certificates of any Class, but the Certificate Registrar may
require payment of a sum sufficient to
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cover any tax or governmental charge that may be imposed in connection with
any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled by the Certificate Registrar and disposed of pursuant to
its standard procedures.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate and (ii) there is
delivered to the Trustee, the Depositor and the Certificate Registrar such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser,
the Trustee shall execute on behalf of the Trust, 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 Percentage Interest. Upon the
issuance of any new Certificate under this Section, the Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) in connection therewith. Any duplicate Certificate
issued pursuant to this Section, shall constitute complete and indefeasible
evidence of ownership in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
---------------------
The Depositor, the Trustee, the Certificate Registrar, any Paying Agent
and any agent of the Depositor, the Certificate Registrar, any Paying Agent or
the Trustee may treat the Person, including a Depository, in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 hereof and for all other
purposes whatsoever, and none of the Trust, the Trustee, the Certificate
Registrar, the Paying Agent or any agent of any of them shall be affected by
notice to the contrary.
SECTION 5.05. Appointment of Paying Agent.
---------------------------
(a) The Paying Agent shall make distributions to Certificateholders from
the Distribution Account pursuant to Section 4.01 hereof and shall report the
amounts of such distributions to the Trustee. The duties of the Paying Agent
may include the obligation (i) to withdraw funds from the Collection Account
pursuant to Section 3.05(a) hereof and for the purpose of making the
distributions referred to above and (ii) to distribute statements and provide
information to Certificateholders as required hereunder. The Paying Agent
hereunder shall at all times be an entity duly incorporated and validly
existing under the laws of the United States of America or any state thereof,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal or state authorities. The Paying Agent
shall initially be the Trustee. The Trustee may appoint a successor to act as
Paying Agent, which appointment shall be reasonably satisfactory to the
Depositor.
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(b) The Trustee shall cause the Paying Agent (if other than the Trustee)
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent shall hold all sums, if
any, held by it for payment to the Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums shall be paid to
such Certificateholders and shall agree that it shall comply with all
requirements of the Code regarding the withholding of payments in respect of
federal income taxes due from Certificate Owners and otherwise comply with the
provisions of this Agreement applicable to it.
ARTICLE VI
THE SELLER AND THE DEPOSITOR; RESIGNATION OF SERVICERS
SECTION 6.01. Liability of the Seller and the Depositor.
-----------------------------------------
The Seller shall be liable in accordance herewith only to the extent of
the obligations specifically imposed upon and undertaken by the Seller herein.
The Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Depositor herein.
SECTION 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Seller or the Depositor.
Any entity into which the Seller or the Depositor may be merged or
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Seller or the Depositor shall be a party, or any
corporation succeeding to the business of the Seller or the Depositor, shall
be the successor of the Seller or the Depositor, as the case may be,
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.
SECTION 6.03. [Reserved].
--------
SECTION 6.04. Resignation of Master Servicer, Servicers.
-----------------------------------------
In addition to any requirements imposed by the Servicing Agreements with
regard to the resignation of the Master Servicer and appointment of a
successor Master Servicer, as applicable, the Trustee shall not accept the
resignation of the Master Servicer unless and until the Rating Agency shall
have delivered a letter to the Trustee prior to the appointment of the
successor Master Servicer, stating that the proposed appointment of such
successor Master Servicer as a Master Servicer, hereunder will not result in
the reduction or withdrawal of the then current rating of the Regular
Certificates unless its duties are no longer permissible under applicable law.
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ARTICLE VII
DEFAULT
SECTION 7.01. Master Servicer Event of Termination.
------------------------------------
(a) If any one of the following events ("Master Servicer Event of
Termination") shall occur and be continuing:
(i) the failure by the Master Servicer to make any Advance or to
deposit in the Collection Account or Distribution Account any deposit
required to be made under the terms of this Agreement; or
(ii) the failure by the Master Servicer to make any required
Servicing Advance which failure continues unremedied for a period of 30
days, or the failure by the Master Servicer duly to observe or perform,
in any material respect, any other covenants, obligations or agreements
of the Master Servicer as set forth in this Agreement, which failure
continues unremedied for a period of 30 days, in each case after the date
(A) on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the Trustee or
to the Master Servicer and the Trustee by Holders of Regular Certificates
evidencing at least 25% of the Voting Rights or (B) on which a Servicing
Officer of the Master Servicer has actual knowledge of such failure; or
(iii) the entry against the Master Servicer of a decree or order by
a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership, readjustment
of debt, marshalling of assets and liabilities or similar proceedings, or
for the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 days;
or
(iv) the Master Servicer shall voluntarily go into liquidation,
consent to the appointment of a conservator or receiver or liquidator or
similar person in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to the
Master Servicer or of or relating to all or substantially all of its
property; or a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged, unbonded or unstayed for a
period of 60 days; or the Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition
to take advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations;
(b) then, and in each and every such case, so long as a Master Servicer
Event of Termination shall not have been remedied within the applicable grace
period, the Trustee shall,
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at the written direction of the Holders of Certificates evidencing Percentage
Interests aggregating not less than 51%, by notice then given in writing to the
Master Servicer, terminate all of the rights and obligations of the Master
Servicer as servicer under this Agreement. Any such notice to the Master
Servicer shall also be given to the Rating Agency, the Depositor and the Seller.
On or after the receipt by the Master Servicer (and by the Trustee if such
notice is given by the Holders) of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee; and, without limitation, and the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the 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 of each Mortgage Loan and related documents or otherwise. The Master
Servicer agrees to cooperate with the Trustee in effecting the termination of
the responsibilities and rights of the Master Servicer hereunder, including,
without limitation, the delivery to the Trustee of all documents and records
requested by it to enable it to assume the Master Servicer's functions under
this Agreement within ten Business Days subsequent to such notice, the transfer
within one Business Day subsequent to such notice to the Trustee for the
administration by it of all cash amounts that shall at the time be held by the
Master Servicer and to be deposited by it in the Collection Account, the
Distribution Account, any REO Account or any Servicing Account or that have been
deposited by the Master Servicer in such accounts or thereafter received by the
Master Servicer with respect to the Mortgage Loans or any REO Property received
by the Master Servicer. All reasonable costs and expenses (including attorneys'
fees) incurred in connection with transferring the Master Servicer's duties and
the Mortgage Files to the successor master servicer and amending this Agreement
to reflect such succession as Master Servicer pursuant to this Section shall be
paid by the predecessor Master Servicer (or if the predecessor Master Servicer
is the Trustee, the initial Master Servicer) upon presentation of reasonable
documentation of such costs and expenses.
(c) Notwithstanding the foregoing, if a Master Servicer Event of
Termination described in clause (i) of Section 7.01(a) shall occur, the Trustee
shall, by notice in writing to the Master Servicer, which may be delivered by
telecopy, immediately suspend all of the rights and obligations of the Master
Servicer thereafter arising under this Agreement, but without prejudice to any
rights it may have as a Certificateholder or to reimbursement of Advances and
Servicing Advances of its own funds, and the Trustee shall act as provided in
Section 7.02 to carry out the duties of the Master Servicer, including the
obligation to make any Advance the nonpayment of which was a Master Servicer
Event of Termination described in clause (i) of Section 7.01(a). Any such action
taken by the Trustee must be prior to the distribution on the relevant
Distribution Date. If the Master Servicer shall within two Business Days
following such suspension remit to the Trustee the amount of any Advance the
nonpayment of which by the Master Servicer was a Master Servicer Event of
Termination described in clause (i) of Section 7.01(a), the Trustee, subject to
the last sentence of this paragraph, shall permit the Master Servicer to resume
its rights and obligations as Master Servicer hereunder. The Master Servicer
agrees that it will reimburse the Trustee for actual, necessary and reasonable
costs incurred by the Trustee because of action taken pursuant to this
subsection. The Master Servicer agrees that if a Master Servicer Event of
Termination as described in clause (i) of Section 7.01(a) 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.
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In the event the Trustee Advances funds for any period as contemplated in
the preceding paragraph, it shall be entitled to the Master Servicing Fee for
such period.
SECTION 7.02. Trustee to Act.
--------------
(a) From and after the date the Master Servicer (and the Trustee, if
notice is sent by the Holders) receives a notice of termination pursuant to
Section 7.01 or 6.04, the Trustee shall be the successor in all respects to
the Master Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof arising on and after its
succession. As compensation therefor, the Trustee shall be entitled to such
compensation as the Master Servicer would have been entitled to hereunder if
no such notice of termination had been given. Notwithstanding the above, (i)
if the Trustee is unwilling to act as successor Master Servicer or (ii) if the
Trustee is legally unable so to act, the Trustee shall appoint or petition a
court of competent jurisdiction to appoint, any established housing and home
finance institution, bank or other mortgage loan or home equity loan servicer
having a net worth of not less than $15,000,000 as the successor to the Master
Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the appointment of any such successor Master Servicer shall not
result in the qualification, reduction or withdrawal of the ratings assigned
to the Certificates or the ratings that are in effect by the Rating Agency as
evidenced by a letter to such effect from the Rating Agency. Pending
appointment of a successor to the Master Servicer hereunder, unless the
Trustee is prohibited by law from so acting, the Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the successor shall be entitled to receive compensation out of
payments on Mortgage Loans in an amount equal to the compensation which the
Master Servicer would otherwise have received pursuant to Section 3.18. The
appointment of a successor Master Servicer shall not affect any liability of
the predecessor Master Servicer which may have arisen under this Agreement
prior to its termination as Master Servicer to pay any deductible under an
insurance policy pursuant to Section 3.14 or to indemnify the Trustee pursuant
to Section 8.05), nor shall any successor Master Servicer be liable for any
acts or omissions of the predecessor Master Servicer or for any breach by such
Master Servicer of any of its representations or warranties contained herein
or in any related document or agreement. The Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
(b) Any successor, including the Trustee, to the Master Servicer as
master servicer shall during the term of its service as master servicer
continue to service and administer the Mortgage Loans for the benefit of
Certificateholders, and maintain in force a policy or policies of insurance
covering errors and omissions in the performance of its obligations as Master
Servicer hereunder and a Fidelity Bond in respect of its officers, employees
and agents to the same extent as the Master Servicer is so required pursuant
to Section 3.14.
(c) Notwithstanding anything else herein to the contrary, in no event
shall the Trustee be liable for any servicing fee or for any differential in
the amount of the servicing fee paid hereunder and the amount necessary to
induce any successor Master Servicer to act as successor Master Servicer under
this Agreement and the transactions set forth or provided for herein.
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SECTION 7.03. Waiver of Master Servicer Event of Termination.
----------------------------------------------
The Majority Certificateholders may, on behalf of all Certificateholders,
by notice in writing to the Trustee, direct the Trustee to waive any events
permitting removal of any Master Servicer as a servicer pursuant to the
related Servicing Agreement, provided, however, that the Majority
Certificateholders may not waive an event that results in a failure to make
any required distribution on a Certificate without the consent of the Holder
of such Certificate. Upon any waiver of a Master Servicer Event of
Termination, such event shall cease to exist and any Master Servicer Event of
Termination 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 event or impair any right consequent thereto except to the extent
expressly so waived. Notice of any such waiver shall be given by the Trustee
to the Rating Agency.
SECTION 7.04. Notification to Certificateholders.
----------------------------------
(a) Upon any termination or appointment of a successor to any Master
Servicer pursuant to this Article VII or Section 6.04, the Trustee shall give
prompt written notice thereof to the Certificateholders at their respective
addresses appearing in the Certificate Register and to the Rating Agency.
(b) No later than 60 days after the occurrence of any event which
constitutes or which, with notice or a lapse of time or both, would constitute
a Master Servicer Event of Termination of which a Responsible Officer of the
Trustee becomes aware of the occurrence of such an event, the Trustee shall
transmit by mail to all Certificateholders notice of such occurrence unless
such Master Servicer Event of Termination shall have been waived or cured.
SECTION 7.05. Consolidation or Merger of the Master Servicer.
----------------------------------------------
Any Person into which the Master Servicer may be merged or consolidated,
or any Person resulting from any merger, conversion or consolidation to which
the Master Servicer shall be a party, or any Person succeeding to the business
of the Master Servicer, shall be the successor of the Master Servicer
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
-----------------
The Trustee, prior to the occurrence of a Master Servicer Event of
Termination and after the curing or waiver of all Master Servicer Events of
Termination which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement. If a Master
Servicer Event of Termination has occurred (which has not been cured or
waived) of which a Responsible Officer has actual knowledge, the Trustee shall
exercise such
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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 man would exercise or use
under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement; provided, however, that the
Trustee will not be responsible for the accuracy or content of any such
resolutions, certificates, statements, opinions, reports, documents or other
instruments. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner the Trustee shall take
such action as it deems appropriate to have the instrument corrected.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct; provided, however, that:
(i) prior to the occurrence of a Master Servicer Event of Termination,
and after the curing of all such Master Servicer Events of Termination
which may have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement;
(ii) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining or investigating the
facts related thereto;
(iii) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the consent or at the direction of Holders of Certificates
as provided herein relating to the time, method and place of conducting any
remedy pursuant to this Agreement, or exercising or omitting to exercise
any trust or power conferred upon the Trustee, under this Agreement; and
(iv) the Trustee shall not be charged with knowledge of any Master
Servicer Event of Termination unless a Responsible Officer of the Trustee
at the Corporate Trust Office obtains actual knowledge of such failure or
the Trustee receives written notice of such Master Servicer Event of
Termination from the related Servicer or the Majority Certificateholders.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial or other liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such
96
funds or indemnity satisfactory to it against such risk or liability is not
assured to it, and none of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement, except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Master Servicer in accordance with the terms of this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
-------------------------------------
Except as otherwise provided in Section 8.01 hereof:
(i) the Trustee may request and conclusively rely upon, and shall be
fully protected in acting or refraining from acting upon, any resolution,
Officers' Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties, and the manner of obtaining consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe;
(ii) the Trustee may consult with counsel and any advice of its
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation hereunder or in relation hereto, at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which may be incurred
therein or thereby; the right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and
the Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of a Master Servicer Event of
Termination and after the curing or waiver of all Master Servicer Events
of Termination which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or documents,
unless requested in writing to do so by the Majority Certificateholder;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee,
not
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reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such cost, expense or liability as a condition to such
proceeding. If the Master Servicer fails to reimburse the Trustee in
respect of the reasonable expense of every such examination relating to
the Master Servicer, the Trustee shall be reimbursed by the Trust Fund;
(vi) the Trustee shall not be accountable, shall have no liability
and makes no representation as to any acts or omissions hereunder of the
Master Servicer until such time as the Trustee may be required to act as
the Master Servicer pursuant to Section 7.02 hereof and thereupon only
for the acts or omissions of the Trustee as a successor Master Servicer;
(vii) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
nominees, attorneys or a custodian, and shall not be responsible for any
willful misconduct or negligence on the part of any agent, nominee,
attorney or custodian appointed by the Trustee in good faith; and
(viii) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act.
SECTION 8.03. Trustee Not Liable for Certificates, Mortgage Loans or
------------------------------------------------------
Additional Collateral.
----------------------
The recitals contained herein and in the Certificates (other than the
authentication and countersignature of the Trustee on the Certificates) shall
be taken as the statements of the Seller, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations or warranties as to the validity or sufficiency of this
Agreement or of the Certificates (other than the signature and
countersignature of the Trustee on the Certificates) or of any Mortgage Loan
or related document or of MERS or the MERS System. The Trustee shall not be
accountable for the use or application by the Master Servicer, or for the use
or application of any funds paid to the Master Servicer in respect of related
Mortgage Loans or deposited in or withdrawn from the Collection Account by the
Master Servicer. The Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Mortgage or any Mortgage Loan, or the perfection and priority of any
Mortgage or the maintenance of any such perfection and priority, or for or
with respect to the sufficiency of the Trust or its ability to generate the
payments to be distributed to Certificateholders under this Agreement,
including, without limitation: the existence, condition and ownership of any
Mortgaged Property; the existence and enforceability of any hazard insurance
thereon (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 7.02 hereof); the validity of the assignment of
any Mortgage Loan to the Trustee or of any intervening assignment; the
completeness of any Mortgage Loan; the performance or enforcement of any
Mortgage Loan (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 7.02 hereof); the compliance by the Depositor or
the Seller with any warranty or representation made under this Agreement or in
any related document or the accuracy of any such warranty or representation
prior to the Trustee's receipt of notice or other discovery of any
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non-compliance therewith or any breach thereof; any investment of monies by or
at the direction of the Master Servicer or any loss resulting therefrom, it
being understood that the Trustee shall remain responsible for any Trust
property that it may hold in its individual capacity; the acts or omissions of
the Master Servicer (other than if the Trustee shall assume the duties of the
Master Servicer pursuant to Section 7.02 hereof, and then only for the acts or
omissions of the Trustee as the successor Master Servicer), any Servicer or
any Mortgagor; any action of the Master Servicer (other than if the Trustee
shall assume the duties of the Master Servicer pursuant to Section 7.02
hereof), or any Servicer taken in the name of the Trustee; the failure of the
Master Servicer or any Servicer to act or perform any duties required of it as
agent of the Trustee hereunder; or any action by the Trustee taken at the
instruction of the Master Servicer (other than if the Trustee shall assume the
duties of the Master Servicer pursuant to Section 7.02 hereof, and then only
for the actions of the Trustee as the successor Master Servicer); provided,
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties under this Agreement, including, without limitation, the
Trustee's duty to review the Mortgage Files, if so required pursuant to
Section 2.01 of this Agreement. The Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder (unless the Trustee shall have become
the successor Master Servicer).
SECTION 8.04. Trustee May Own Certificates.
----------------------------
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates and may transact any banking and trust business
with the Seller, the Master Servicer, the Depositor or their Affiliates with
the same rights as it would have if it were not Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
---------------------------
The Trustee, as compensation for all services rendered by the Trustee in
the exercise and performance of any of the powers and duties hereunder, shall
be entitled to withdraw from the Distribution Account on each Distribution
Date an amount equal to the Trustee Fee for such Distribution Date. The Trust
Fund shall pay or reimburse the Trustee upon request on any Distribution Date
for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Agreement during
the related Due Period (including but not limited to Section 7.01 and Section
8.02(v) hereof and including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith or which is the responsibility of Certificateholders
or the Trustee hereunder. On each such Distribution Date, the Trustee shall be
entitled to withdraw from the Distribution Account the amount of such payment
or reimbursement for such Distribution Date. In addition, the Trust Fund shall
indemnify the Trustee and its officers, directors, employees and agents from,
and hold it harmless against, any and all losses, liabilities, damages, claims
or expenses incurred by reason of its participation in the transactions
contemplated hereby or in connection with any legal action relating to this
Agreement, the Trust Fund or the Certificates, including, without limitation,
all reasonable attorneys' and consultants' fees, expenses and court costs,
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence of the Trustee in the performance of its
duties hereunder or by reason of the
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Trustee's reckless disregard of obligations and duties hereunder. This section
shall survive termination of this Agreement and the resignation or removal of
the Trustee hereunder.
SECTION 8.06. Eligibility Requirements for Trustee.
------------------------------------
The Trustee hereunder shall at all times be an entity duly organized and
validly existing under the laws of the United States of America or any state
thereof, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000 and a minimum long-term
debt rating in the third highest rating category by the Rating Agency and in
the Rating Agency's two highest short-term rating categories, and subject to
supervision or examination by federal or state authority. If such entity
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 8.06, the combined capital and surplus of such entity
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The principal office of the
Trustee (other than the initial Trustee) shall be in a state with respect to
which an Opinion of Counsel has been delivered to such Trustee at the time
such Trustee is appointed Trustee to the effect that the Trust will not be a
taxable entity under the laws of such state. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07 hereof.
SECTION 8.07. Resignation or Removal of Trustee.
---------------------------------
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Seller,
the Master Servicer and the Rating Agency. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 hereof or if at any time the Trustee shall be
legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Depositor may remove the Trustee. If the Depositor removes the Trustee
under the authority of the immediately preceding sentence, the Depositor shall
promptly appoint a successor Trustee by written instrument, in triplicate, one
copy of which instrument shall be delivered to the Trustee so removed, one
copy to the successor trustee and one copy to the Master Servicer.
The Majority Certificateholders may at any time remove the Trustee by
written instrument or instruments delivered to the Depositor and the Trustee;
the Depositor shall thereupon use its best efforts to appoint a successor
trustee in accordance with this Section.
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Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 8.07 shall not
become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08 hereof.
SECTION 8.08. Successor Trustee.
-----------------
Any successor Trustee appointed as provided in Section 8.07 hereof shall
execute, acknowledge and deliver to the Depositor, the Seller and the Master
Servicer and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective, and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as Trustee. The Depositor, the Seller,
the Master Servicer and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section
8.08 unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 8.06 hereof and the appointment of
such successor Trustee shall not result in a downgrading of the Senior
Certificates by the Rating Agency, as evidenced by a letter from the Rating
Agency.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.08, the successor Trustee shall mail notice of the appointment of a
successor Trustee hereunder to all Holders of Certificates at their addresses
as shown in the Certificate Register and to the Rating Agency.
SECTION 8.09. Merger or Consolidation of Trustee.
----------------------------------
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided such entity shall be eligible under the
provisions of Section 8.06 and 8.08 hereof, 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.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust or any Mortgaged Property may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power, and the
Trustee shall, and shall instruct the Master Servicer to, execute and deliver
all instruments to appoint one or more Persons, with the consent of the
Depositor, which consent shall not be unreasonably withheld, approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or
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any part of the Trust, and to vest in such Person or Persons, in such capacity
and for the benefit of the Certificateholders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Master Servicer and the
Trustee may consider necessary or desirable. Any such co-trustee or separate
trustee shall be subject to the written approval of the Master Servicer. If a
Master Servicer Event of Termination shall have occurred and be continuing,
the Trustee alone--shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as a successor trustee under Section 8.06 hereof, and no notice
to Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08 hereof.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all 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 or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the Master Servicer hereunder), 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 or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Trustee;
(ii) no trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Master Servicer and the Trustee, acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee except that if a Master Servicer Event of Termination shall
have occurred and be continuing, the Trustee alone--may accept the
resignation or remove any separate trustee or co-trustee.
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 or co-trustee shall refer to this Agreement and the
conditions of this Article VIII. 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 and a copy thereof given to the Depositor and the Master Servicer.
Any separate trustee or co-trustee 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
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lawful act under or in respect of this Agreement on its behalf and in its
name. If any separate trustee or co-trustee 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.
SECTION 8.11. Limitation of Liability.
-----------------------
The Certificates are executed by the Trustee, not in its individual
capacity but solely as Trustee of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the
undertakings and agreements made on the part of the Trustee in the
Certificates is made and intended not as a personal undertaking or agreement
by the Trustee but is made and intended for the purpose of binding only the
Trust.
SECTION 8.12. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Certificates.
-------------
(a) All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee
shall be brought in its own name or in its capacity as Trustee for the benefit
of all Holders of such Certificates, subject to the provisions of this
Agreement. Any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursement and advances of the
Trustee, its agents and counsel, be for the ratable benefit or the
Certificateholders in respect of which such judgment has been recovered.
(b) The Trustee shall afford the Seller, the Depositor and each
Certificateholder upon reasonable notice during normal business hours at its
Corporate Trust Office or other office designated by the Trustee, access to
all records maintained by the Trustee in respect of its duties hereunder and
access to officers of the Trustee responsible for performing such duties. Upon
request, the Trustee shall furnish the Depositor and any requesting
Certificateholder with its most recent audited financial statements. The
Trustee shall cooperate fully with the Seller, the Depositor and such
Certificateholder and shall, subject to the first sentence of this Section
8.12(b), make available to the Seller, the Depositor and such
Certificateholder for review and copying such books, documents or records as
may be requested with respect to the Trustee's duties hereunder. The Seller,
the Depositor and the Certificateholders shall not have any responsibility or
liability for any action or failure to act by the Trustee and are not
obligated to supervise the performance of the Trustee under this Agreement or
otherwise.
SECTION 8.13. Suits for Enforcement.
---------------------
In case a Master Servicer Event of Termination or a default by the
Depositor hereunder shall occur and be continuing, the Trustee may proceed to
protect and enforce its rights and the rights of the Certificateholders under
this Agreement, as the case may be, by a suit, action or proceeding in equity
or at law or otherwise, whether for the specific performance of any covenant
or agreement contained in this Agreement or in aid of the execution of any
power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy,
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as the Trustee, being advised by counsel, and subject to the foregoing, shall
deem most effectual to protect and enforce any of the rights of the Trustee
and the Certificateholders.
SECTION 8.14. Waiver of Bond Requirement.
--------------------------
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee post a bond or other surety with any
court, agency or body whatsoever.
SECTION 8.15. Waiver of Inventory, Accounting and Appraisal Requirement.
---------------------------------------------------------
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
SECTION 8.16. Appointment of Custodians.
-------------------------
The Trustee may appoint one or more custodians to hold all or a portion
of the related Mortgage Files as agent for the Trustee, by entering into a
custodial agreement. The custodian may at any time be terminated and a
substitute custodian appointed therefor by the Trustee. Subject to this
Article VIII, the Trustee agrees to comply with the terms of each custodial
agreement and to enforce the terms and provisions thereof against the
custodian for the benefit of the Certificateholders having an interest in any
Mortgage File held by such custodian. Each custodian shall be a depository
institution or trust company subject to supervision by federal or state
authority, shall have combined capital and surplus of at least $15,000,000 and
shall be qualified to do business in the jurisdiction in which it holds any
Mortgage File. The Master Servicer shall pay from its own funds, without any
right to reimbursement, the fees, costs and expenses of each custodian
(including the costs of custodian's counsel).
SECTION 8.17. Delaware Trustee.
----------------
(a) The Delaware Trustee has been appointed solely for the purpose of
complying with the requirement of the DBTA that the Trust have one trustee,
which, in the case of a natural person, is a resident of the State of
Delaware, or which in all other cases, has its principal place of business in
the State of Delaware. The duties and responsibilities of the Delaware Trustee
shall be limited solely to (a) accepting legal process served on the Trust in
the State of Delaware and (b) the execution and delivery of all documents, and
the maintenance of all records, necessary to form and maintain the existence
of the Trust under the DBTA. Except for the purpose of the foregoing sentence,
the Delaware Trustee shall not be deemed a trustee and shall have no
management responsibilities or owe any fiduciary duties to the Trust or the
Certificates.
(b) By its execution hereof, the Delaware Trustee accepts the Trust
created herein. Except as otherwise expressly required by clause (a) above,
the Delaware Trustee shall not have any duty or liability with respect to the
administration of the Trust, the investment of the Trust property or the
payment of interest or principal on the Certificates.
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(c) The Delaware Trustee shall not be liable for the acts or omissions of
the Trustee, nor shall the Delaware Trustee be liable for supervising or
monitoring the performance and the duties and obligations of the Trustee or
the Trust under this Agreement or any related document, except as expressly
required by Section 8.17(a). The Delaware Trustee shall not be personally
liable under any circumstances, except for its own willful misconduct, bad
faith or gross negligence. In particular, but not by way of limitation:
(i) the Delaware Trustee shall not be personally liable for any
error of judgment made in good faith;
(ii) no provision of this Agreement shall require the Delaware
Trustee to expend or risk its personal funds or otherwise incur any
financial liability in the performance of its rights or powers hereunder,
if the Delaware Trustee shall have reasonable grounds for believing that
the payment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(iii) under no circumstances shall the Delaware Trustee be
personally liable for any representation, warranty, covenant, agreement,
or indebtedness of the Trust;
(iv) the Delaware Trustee shall not be personally responsible for or
in respect of the validity or sufficiency of this Agreement or for the
due execution hereof by any other party hereto;
(v) the Delaware Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or
paper reasonably believed by it to be genuine and reasonably believed by
it to be signed by the proper party or parties. The Delaware Trustee may
accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that
such resolution has been duly adopted by such body and that the same is
in full force and effect. As to any fact or matter the manner of
ascertainment of which is not specifically prescribed herein, the
Delaware Trustee may for all purposes hereof rely on a certificate,
signed by the Trustee, as to such fact or matter, and such certificate
shall constitute full protection to the Delaware Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon;
(vi) in the exercise or administration of the trust hereunder, the
Delaware Trustee (a) may act directly or through agents or attorneys
pursuant to agreements entered into with any of them, and the Delaware
Trustee shall not be liable for the default or misconduct of such agents
or attorneys if such agents or attorneys shall have been selected by the
Delaware Trustee in good faith and with due care and (b) may consult with
counsel, accountants and other skilled persons to be selected by it in
good faith and with due care and employed by it, and it shall not be
liable for anything done, suffered or omitted in good faith by it in
accordance with the advice or opinion of any such counsel, accountants or
other skilled persons; and
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(vii) except as expressly provided in this Section 8.17(c), in
accepting and performing the trust hereby created the Delaware Trustee
acts solely as trustee hereunder and not in its individual capacity, and
all persons having any claim against the Delaware Trustee by reason of
the transactions contemplated by this Agreement shall look only to the
Trust's property for payment or satisfaction thereof.
(d) The Delaware Trustee may consult with counsel (who may be counsel for
the Co- Trustee). The reasonable legal fees incurred in connection with such
consultation shall be reimbursed to the Delaware Trustee, provided that (i)
the Delaware Trustee shall have notified the Seller in advance of incurring
such fees, of the name of counsel and the extent of its representation, and
(ii) no such fees shall be payable to the extent that they are incurred as a
result of the Delaware Trustee's gross negligence, bad faith or willful
misconduct.
(e) The Delaware Trustee shall serve for the duration of the Trust and
until the earlier of (i) the effective date of the Delaware Trustee's
resignation, or (ii) the effective date of the removal of the Delaware
Trustee. The Delaware Trustee may resign at any time by giving thirty (30)
days written notice to the Seller and Depositor; provided, however, said
resignation shall not be effective until such time as a successor Delaware
Trustee has accepted such appointment. The Delaware Trustee may be removed at
any time by the Depositor by providing thirty (30) days written notice to the
Delaware Trustee; provided, however, such removal shall not be effective until
such time as a successor Delaware Trustee has accepted such appointment. Upon
the resignation or removal of the Delaware Trustee, the Depositor shall
appoint a successor Delaware Trustee. If no successor Delaware Trustee shall
have been appointed and shall have accepted such appointment within forty-five
(45) days after the giving of such notice of resignation or removal, the
Delaware Trustee may petition any court of competent jurisdiction for the
appointment of a successor Delaware Trustee. Any successor Delaware Trustee
appointed pursuant to this section shall be eligible to act in such capacity
in accordance with this Agreement and, following compliance with this Section,
shall become fully vested with the rights, powers, duties and obligations of
its predecessor under this Agreement, with like effect as if originally named
as Delaware Trustee.
(f) The Delaware Trustee or any officer, affiliate, director, employee,
or agent of the Delaware Trustee each an "Indemnified Person") shall be
entitled to indemnification from the Trust Fund, to the fullest extent
permitted by law, from and against any and all losses, claims, taxes, damages,
reasonable expenses, and liabilities (including liabilities under state or
federal securities laws) of any kind and nature whatsoever (collectively,
"Expenses"), to the extent that such Expenses arise out of or are imposed upon
or asserted against such Indemnified Persons with respect to the creation,
operation or termination of the Trust, the execution, delivery or performance
of this Agreement or the transactions contemplated hereby; provided, however,
that the Trust Fund shall not be required to indemnify any Indemnified Person
for any Expenses which are a result of the willful misconduct, bad faith or
gross negligence of such Indemnified Person. The obligations of the Trust Fund
to indemnify the Indemnified Persons as provided herein shall survive the
termination of this Agreement.
(g) The Delaware Trustee shall not be obligated to give any bond or other
security for the performance of any of its duties hereunder.
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(h) The Delaware Trustee shall be entitled to all of the benefits and
protections provided to the Trustee under this Agreement including all rights
to indeminification. The Trustee shall compensate the Delaware Trustee for its
services hereunder pursuant to separate agreement between such parties.
ARTICLE IX
REMIC ADMINISTRATION
SECTION 9.01. REMIC Administration.
--------------------
(a) As set forth in the Preliminary Statement to this Agreement, two
REMIC elections shall be made by the Trustee on Form 1066 or other appropriate
federal tax or information return for the taxable year ending on the last day
of the calendar year in which the Certificates are issued. The regular
interests in each REMIC and the related residual interest shall be as
designated in the Preliminary Statement. Following the Closing Date, the
Trustee shall apply to the IRS for an employer identification number for each
REMIC created hereunder by means of a Form SS-4 or other acceptable method.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC created hereunder within the meaning of section 86OG(a)(9) of the Code.
(c) Except as provided in subsection (d) of this Section 9.01, the Seller
shall pay any and all tax related expenses (not including taxes) of each REMIC
created hereunder, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to such REMIC that involve the Internal Revenue Service or state tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Trustee in fulfilling its duties hereunder (including its
duties as tax return preparer). The Trustee shall be entitled to reimbursement
of expenses referred to in clause (i) above from the Distribution Account.
(d) The Trustee shall prepare, sign and file, all of the federal and
state tax and information returns of each REMIC created hereunder
(collectively, the "Tax Returns") as the direct representative. The expenses
of preparing and filing such Tax Returns shall be borne by the Trustee.
Notwithstanding the foregoing, the Trustee shall have no obligation to
prepare, file or otherwise deal with partnership tax information or returns.
In the event that partnership tax information or returns are required by the
Internal Revenue Service, the Seller, at its own cost and expense, will
prepare and file all necessary returns.
(e) The Trustee shall perform on behalf of each REMIC created hereunder
all reporting and other tax compliance duties that are the responsibility of
each such REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, if required by the Code, the REMIC
Provisions or other such guidance, the Trustee, shall provide (i) to the
Treasury or other governmental authority such information as is necessary for
the application of any tax
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relating to the Transfer of the Class A-R Certificate or the Class LTA-R
Certificate to any disqualified organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(f) The Trustee (to the extent that the affairs of the REMICs are within
its control and the scope of its specific responsibilities under the
Agreement) and the Holders of Certificates shall take any action or cause any
REMIC created hereunder to take any action necessary to create or maintain the
status of each REMIC created hereunder as a REMIC under the REMIC Provisions
and shall assist each other as necessary to create or maintain such status.
Neither the Trustee nor the Holder a Residual Certificate shall take any
action, cause any REMIC created hereunder to take any action or fail to take
(or fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of any
REMIC created hereunder as a REMIC or (ii) result in the imposition of a tax
upon any REMIC created hereunder (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 has received an
Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such status or
result in the imposition of such a tax. In addition, prior to taking any
action with respect to any REMIC created hereunder or the assets therein, or
causing any such REMIC to take any action which is not expressly permitted
under the terms of this Agreement, any Holder of the Class A-R Certificate and
any holder of the Class LTA-R Certificate will consult with the Trustee or its
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any such REMIC, and no such
Person shall take any such action or cause any REMIC created hereunder to take
any such action as to which the Trustee has advised it in writing that an
Adverse REMIC Event could occur. Should the Trustee choose to consult tax
counsel as permitted under Section 8.02(a)(ii) in advising any Holder of the
Class A-R Certificate and any holder of the Class LTA-R Certificate that a
proposed action may result in an Adverse REMIC Event, fees and expenses
related to such consultation with tax counsel shall be paid from the
Distribution Account.
(g) Each Holder of the Class A-R Certificate shall pay when due any and
all taxes imposed on each REMIC created hereunder by federal or state
governmental authorities. To the extent that such Trust taxes are not paid by
the Class A-R Certificateholder, the Trustee shall pay any remaining REMIC
taxes out of current or future amounts otherwise distributable to the Holder
of the Class A-R Certificate or, if no such amounts are available, out of
other amounts held in the Distribution Account, and shall reduce amounts
otherwise payable to holders of regular interests in each such REMIC, as the
case may be.
(h) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each REMIC created hereunder on a calendar year
and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC
created hereunder, except as expressly provided in this Agreement with respect
to eligible substitute mortgage loans.
(j) The Trustee shall not enter into any arrangement by which any REMIC
created hereunder will receive a fee or other compensation for services.
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SECTION 9.02. Prohibited Transactions and Activities.
--------------------------------------
Neither the Depositor 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 any REMIC created hereunder pursuant to Article X of
this Agreement, (iv) a substitution pursuant to Article II hereof or (v) a
repurchase of Mortgage Loans as contemplated hereunder, nor acquire any assets
for any REMIC created hereunder, nor sell or dispose of any investments in the
Distribution Account for gain, nor accept any contributions to any REMIC
created hereunder after the Closing Date, unless it has received an Opinion of
Counsel (at the expense of the party causing such sale, disposition, or
substitution) that such disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of any REMIC created hereunder as a
REMIC or of the interests therein other than the Class A-R Certificate as the
"residual interest" therein, (b) affect the distribution of interest or
principal on the Certificates, (c) result in the encumbrance of the assets
transferred or assigned to the Trust Fund (except pursuant to the provisions
of this Agreement) or (d) cause any REMIC created hereunder to be subject to a
tax on prohibited transactions or prohibited contributions pursuant to the
REMIC Provisions.
ARTICLE X
TERMINATION
SECTION 10.01. Termination.
-----------
(a) The respective obligations and responsibilities of the Seller, the
Depositor, the Master Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make certain payments to Certificateholders after
the final Distribution Date and the obligation of the Master Servicer to send
certain notices as hereinafter set forth) shall terminate upon notice to the
Trustee upon the earliest of (i) the Distribution Date on which the Class
Certificate Principal Balance of each Class of Certificates has been reduced
to zero, (ii) the final payment or other liquidation of the last Mortgage
Loan, (iii) the optional purchase of the Mortgage Loans as described in the
following paragraph and (iv) the Latest Possible Maturity Date.
Notwithstanding the foregoing, in no event shall the trust 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.
The Master Servicer may, at its option, terminate this Agreement on any
Distribution Date immediately after which the Stated Principal Balance of the
Mortgage Loans is equal to or less than 5% of their Stated Principal Balance
on the Cut-Off Date, by purchasing, on such Distribution Date, all of the
outstanding Mortgage Loans and REO Properties at a price equal to the sum of
(i) the outstanding Stated Principal Balances of the Mortgage Loans (other
than in respect of REO Properties), (ii) the lesser of (x) the appraised value
of any REO Property as determined by the higher of two appraisals completed by
two independent appraisers selected by the Depositor at the expense of the
Depositor and (y) the Principal Balance of each Mortgage Loan related to any
REO Property and (iii) in all cases, accrued and unpaid interest thereon at
the
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Net WAC through the end of the Due Period preceding the final Distribution
Date, plus unreimbursed Servicing Advances and any unpaid Master Servicing
Fees and Servicing Fees allocable to such Mortgage Loans and REO Properties,
plus all amounts, if any, then due and owing to the Trustee under this
Agreement (the "TERMINATION PRICE").
(b) Notice of any termination pursuant to the second paragraph of Section
10.01(a), specifying the Distribution Date (which shall be a date that would
otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon the
Trustee receiving notice of such date from the Master Servicer by letter to
the Certificateholders mailed not earlier than the 10th day and not later than
the 19th day of the month immediately preceding the month of such final
distribution specifying (1) the Distribution Date upon which final
distribution of the Certificates will be made upon presentation and surrender
of such Certificates at the office or agency of the Trustee therein
designated, (2) the amount of any such final distribution and (3) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified.
(c) Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed to
such Holders in accordance with the provisions of Section 4.01 hereof for such
Distribution Date.
(d) In the event that all Certificateholders shall not surrender their
Certificates for final payment and cancellation on or before such final
Distribution Date, the Trustee shall promptly following such date cause all
funds in the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate account for the
benefit of such Certificateholders, and 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 nine months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Master Servicer shall be
entitled to all unclaimed funds and other assets which remain subject hereto,
and the Trustee upon transfer of such funds shall be discharged of any
responsibility for such funds, and the Certificateholders shall look to the
Master Servicer for payment.
SECTION 10.02. Additional Termination Requirements.
-----------------------------------
(a) In the event the purchase option provided in Section 10.01 is
exercised, the Trust shall be terminated in accordance with the following
additional requirements:
(i) The Trustee shall sell all of the assets of the Trust Fund for
cash and, within 90 days of such sale, shall distribute to (or credit to
the account of) the Certificateholders the proceeds of such sale together
with any cash on hand (less amounts retained to meet claims) in complete
liquidation of the Trust Fund, the Lower Tier REMIC, and the Upper Tier
REMIC; and
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(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 their acceptance of Certificates, the Holders thereof hereby agree
to appoint the Trustee as their attorney in fact to undertake the foregoing
steps.
ARTICLE XI
DEPOSITION OF TRUST ASSETS
Neither the Trust, nor this Agreement, may be terminated or voided, or
any disposition of the assets of the Trustee effected, other than in
accordance with the terms hereof, except to the extent that Holders
representing no less than the entire beneficial ownership interest of the
Certificates, have so asserted.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment.
---------
This Agreement may be amended from time to time by Seller, the Depositor,
the Master Servicer and the Trustee without the consent of the Loss Mitigation
Advisor except to the extent that the rights or obligations of the Loss
Mitigation Advisor hereunder are directly affected thereby, and without the
consent of the Certificateholders, (i) to cure any ambiguity, (ii) to correct
or supplement any provisions herein which may be defective or inconsistent
with any other provisions herein, (iii) to make any other provisions with
respect to matters or questions arising under this Agreement, which shall not
be inconsistent with the provisions of this Agreement, or (iv) to conform the
terms hereof to the description thereof provided in the Prospectus; provided,
however, that any such action listed in clause (i) through (iii) above shall
be deemed not to adversely affect in any material respect the interests of any
Certificateholder, if evidenced by (i) written notice to the Depositor, the
Seller, the Master Servicer and the Trustee from the Rating Agency that such
action will not result in the reduction or withdrawal of the rating of any
outstanding Class of Certificates with respect to which it is a Rating Agency
or (ii) an Opinion of Counsel stating that such amendment shall not adversely
affect in any material respect the interests of any Certificateholder, is
permitted by the Agreement and all the conditions precedent, if any have been
complied with, delivered to the Master Servicer and the Trustee.
In addition, this Agreement may be amended from time to time by Seller,
the Depositor, the Master Servicer and the Trustee (but without the consent of
the Loss Mitigation Advisor unless its right are otherwise affected) and with
the consent of the Majority Certificateholders for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment or waiver shall (x)
reduce in any
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manner the amount of, or delay the timing of, payments on the Certificates
that are required to be made on any Certificate without the consent of the
Holder of such Certificate, (y) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than
as described in clause (x) above, without the consent of the Holders of
Certificates of such Class evidencing at least a 66% Percentage Interest in
such Class, or (z) reduce the percentage of Voting Rights required by clause
(y) above without the consent of the Holders of all Certificates of such Class
then outstanding. Upon approval of an amendment, a copy of such amendment
shall be sent to the Rating Agency.
Notwithstanding any provision of this Agreement to the contrary, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel, delivered by and at the expense of
the Person seeking such Amendment (unless such Person is the Trustee, in which
case the Trustee shall be entitled to be reimbursed for such expenses by the
Trust pursuant to Section 8.05 hereof), to the effect that such amendment will
not result in the imposition of a tax on any REMIC created hereunder pursuant
to the REMIC Provisions or cause any REMIC created hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding and that
the amendment is being made in accordance with the terms hereof, such
amendment is permitted by this Agreement and all conditions precedent, if any,
have been complied with.
Promptly after the execution of any such amendment the Trustee shall
furnish, at the expense of the Person that requested the amendment if such
Person is the Seller (but in no event at the expense of the Trustee),
otherwise at the expense of the Trust, a copy of such amendment and the
Opinion of Counsel referred to in the immediately preceding paragraph to the
Master Servicer and the Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 12.01 to approve the particular form of any proposed amendment;
instead it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
The Trustee may, but shall not be obligated to, enter into any amendment
pursuant to this 12.01 Section that affects its rights, duties and immunities
under this Agreement or otherwise.
SECTION 12.02. Recordation of Agreement; Counterparts.
--------------------------------------
To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected by the Trustee at the
expense of the Trust, but only upon direction of Certificateholders accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of
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counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
SECTION 12.03. Limitation on Rights of Certificateholders.
------------------------------------------
The death or incapacity of any Certificateholder shall not (i) operate to
terminate this Agreement or the Trust, (ii) entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Except as expressly provided for herein, no Certificateholder shall have
any right to vote or in any manner otherwise control the operation and
management of the Trust, 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.
No Certificateholder shall have any right by virtue 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 default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
Certificates entitled to at least 25% of the Voting Rights 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 costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 15 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. It is
understood and intended, and 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
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, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 12.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 12.04. Governing Law; Jurisdiction.
---------------------------
This Agreement shall be construed in accordance with the laws of the
State of Delaware, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
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SECTION 12.05. Notices.
-------
All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed
by first class mail, postage prepaid, or by express delivery service, to (a)
in the case of the Seller, to ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopy
number (▇▇▇) ▇▇▇-▇▇▇▇), or such other address or telecopy number as may
hereafter be furnished to the Depositor, the Master Servicer, the Loss
Mitigation Advisor, and the Trustee in writing by the Seller, (b) in the case
of the Trustee, to Bankers Trust Company of California, N.A., ▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ 2001-1 (telecopy
number (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to the Corporate Trust Office or such
other address or telecopy number as may hereafter be furnished to the
Depositor, the Master Servicer, the Loss Mitigation Advisor, and the Seller in
writing by the Trustee, (c) in the case of the Depositor, to Greenwich Capital
Acceptance, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Legal (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), or such other address or telecopy
number as may be furnished to the Seller, the Master Servicer, the Loss
Mitigation Advisor, and the Trustee in writing by the Depositor, (d) in the
case of the Master Servicer, to Washington Mutual Mortgage Securities Corp.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
WMMSC/▇▇▇▇▇▇▇▇▇ 2001-1 (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), or such other address
or telecopy number as may be furnished to the Depositor, the Seller, the Loss
Mitigation Advisor, and the Trustee in writing by the Master Servicer, (e) in
the case of the Loss Mitigation Advisor, The Murrayhill Company, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address or
telecopy number as may be furnished to the Depositor, the Seller, the Master
Servicer and the Trustee in writing by the Loss Mitigation Advisor. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in
the Certificate Register. Notice of any Master Servicer Event of Termination
shall be given by telecopy and by certified mail. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
duly been given when mailed, whether or not the Certificateholder receives
such notice. A copy of any notice required to be telecopied hereunder shall
also be mailed to the appropriate party in the manner set forth above.
SECTION 12.06. Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall for any reason whatsoever be 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 12.07. Article and Section References.
------------------------------
All article and section references used in this Agreement, unless
otherwise provided, are to articles and sections in this Agreement.
114
SECTION 12.08. Notice to the Rating Agency.
---------------------------
(a) The Trustee shall be obligated to use its best reasonable efforts
promptly to provide notice to the Rating Agency with respect to each of the
following of which a Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Master Servicer Event of Termination that
has not been cured or waived;
(iii) the resignation or termination of the Master Servicer or the
Trustee;
(iv) the final payment to Holders of the Certificates of any Class;
(v) any change in the location of any Account; and
(vi) if the Trustee is acting as a successor Master Servicer
pursuant to Section 7.02 hereof, any event that would result in the
inability of the Trustee to make Advances.
(b) In addition, the Trustee shall promptly furnish to the Rating Agency
copies of each Statement to Certificateholders described in Section 4.04
hereof; and
(i) the Master Servicer shall promptly furnish to the Rating Agency
copies of the following:
(A) each annual statement as to compliance described in Section
3.20 hereof;
(B) each annual independent public accountants' servicing report
described in Section 3.21 hereof; and
(C) each notice delivered pursuant to Section 7.01(a) hereof
which relates to the fact that the Master Servicer has not made an
Advance.
SECTION 12.09. Further Assurances.
------------------
Notwithstanding any other provision of this Agreement, neither the
Regular Certificateholders nor the Trustee shall have any obligation to
consent to any amendment or modification of this Agreement unless they have
been provided reasonable security or indemnity against their out-of-pocket
expenses (including reasonable attorneys' fees) to be incurred in connection
therewith.
SECTION 12.10. Benefits of Agreement.
---------------------
Nothing in this Agreement or in the Certificates, expressed or implied,
shall give to any Person, other than the Certificateholders and the parties
hereto and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
115
SECTION 12.11. Acts of Certificateholders.
--------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by the
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or
by agent duly appointed in writing, and such action shall become effective
when such instrument or instruments are delivered to the Trustee and the
Seller. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "act" of the
Certificateholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee and the Trust, if made in the manner provided in this Section 12.11.
(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 a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Whenever such execution is by a signer acting in a capacity other than his or
her individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by any Certificateholder shall bind every future Holder
of such Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee or
the Trust in reliance thereon, whether or not notation of such action is made
upon such Certificate.
116
IN WITNESS WHEREOF, the Depositor, the Seller, the Master Servicer, Loss
Mitigation Advisor, the Trustee and the Delaware Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
GREENWICH CAPITAL ACCEPTANCE, INC.,
as Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇▇▇ MORTGAGE HOME LOANS,
INC., as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP., as Master Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE MURRAYHILL COMPANY, as Loss
Mitigation Advisor
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Operating Officer
BANKERS TRUST (Delaware),
as Delaware Trustee
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
BANKERS TRUST COMPANY OF d
CALIFORNIA, N.A., as Trustee and
Custodian
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
2
STATE OF )
) ss.:
COUNTY OF )
On the 1st day of November 2001, before me, a notary public in and for
said State, personally appeared ______________________ known to me to be a
_________________ of Greenwich Capital Acceptance, Inc., a Delaware
corporation that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public ___________________
STATE OF )
) ss.:
COUNTY OF )
On the 1st day of November 2001, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., a Delaware corporation
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public ____________________
STATE OF )
) ss.:
COUNTY OF )
On the 1st day of November 2001, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of Washington Mutual Mortgage Securities Corp., a Delaware
corporation that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public _____________________
STATE OF )
) ss.:
COUNTY OF )
On the 1st day of November 2001, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of The Murrayhill Company, a Colorado corporation that executed
the within instrument, and also known to me to be the person who executed it
on behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public ______________________
STATE OF )
) ss.:
COUNTY OF )
On the 1st day of November 2001, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of Bankers Trust Company of California, N.A., a national
banking association that executed the within instrument, and also known to me
to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public ______________________
STATE OF )
) ss.:
COUNTY OF )
On the 1st day of November 2001, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of Bankers Trust (Delaware), and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
___________________
Notary Public
EXHIBIT A
FORM OF SENIOR CERTIFICATE
CLASS A CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No. : [ ]
Cut-Off Date : October 1, 2001
First Distribution Date : November 26, 2001
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[ ]
Original Class Certificate
Principal Balance of this
Class : $[ ]
Percentage Interest : [ ]%
Pass-Through Rate : Fixed Initial
CUSIP : [ ]
Class : A
Assumed Final Distribution Date : October 25, 2041
A-1
▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates,
Series 2001-1
Class A
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of hybrid and adjustable rate, first lien
mortgage loans (the "Mortgage Loans") purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of this
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by the Depositor, the Seller, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Greenwich Capital Acceptance,
Inc. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of October 1, 2001 (the "Agreement") among the
Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc. ("TMHL"), as seller (the
"Seller"), Washington Mutual Mortgage Securities Corp., as master servicer,
The Murrayhill Company, as loss mitigation advisor, and Bankers Trust Company
of California, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-2
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: November ___, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ MORTGAGE SECURITIES TRUST 2001-1
By: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual capacity,
but solely as Trustee
By _________________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By ________________________________________
Authorized Signatory of
Bankers Trust Company of California, N.A.,
as Trustee
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS OF ANY SUCH PLAN
OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) A REPRESENTATION THAT THE
PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS DEFINE IN SECTION V(e)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III
OF PTCE-95-60, OR (3) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.
Certificate No. : 1
Cut-Off Date : October 1, 2001
First Distribution Date : November 26, 2001
Initial Certificate Principal
Balance of this Certificate : $100
Original Class Certificate :
Principal Balance of this :
Class : $100
B-1-1
Percentage Interest : 100%
Pass-Through Rate : Variable
CUSIP : [ ]
Class : A-R
Assumed Final Distribution Date : October 25, 2041
▇-▇-▇
▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1
Mortgage Loan Pass-Through Certificates,
Series 2001-1
Class A-R
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of hybrid and adjustable rate, first lien
mortgage loans (the "Mortgage Loans") purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that _________________________ is the registered owner of
the Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this
Certificate belongs in a Trust consisting primarily of the Mortgage Loans
deposited by Greenwich Capital Acceptance, Inc. (the "Depositor"). The Trust
was created pursuant to a Pooling and Servicing Agreement dated as of October
1, 2001 (the "Agreement") among the Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans,
Inc. ("THML"), as seller (the "Seller"), Washington Mutual Mortgage Securities
Corp., as master servicer, The Murrayhill Company, as loss mitigation advisor,
and Bankers Trust Company of California, N.A., as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee.
No transfer of this Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to the Trustee and in substantially the form attached
to the Agreement, to the effect that such transferee is not an employee
benefit or other plan or arrangement subject to Section 406 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"), nor a person
acting on behalf or investing plan assets of any such plan or arrangement,
which representation letter shall not be an expense of the Trustee, or (ii) if
the purchaser is an insurance company, a representation that the purchaser is
an insurance company which is purchasing such Certificate with funds contained
in an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificate are covered under Sections I and
III of PTCE 95-60, or (iii) an Opinion of Counsel in accordance
B-1-3
with the provisions of the Agreement. Notwithstanding anything else to the
contrary herein, any purported transfer of this Certificate to or on behalf of
an employee benefit plan subject to ERISA or to the Code without the opinion
of counsel satisfactory to the Trustee as described above shall be void and of
no effect.
Each Holder of this Certificate will be deemed to have agreed to be bound
by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Certificate must be a Permitted Transferee, (ii) no Ownership Interest
in this Certificate may be transferred without delivery to the Trustee of (a)
a transfer affidavit of the proposed transferee and (b) a transfer certificate
of the transferor, each of such documents to be in the form described in the
Agreement, (iii) each person holding or acquiring any Ownership Interest in
this Certificate must agree to require a transfer affidavit and to deliver a
transfer certificate to the Trustee as required pursuant to the Agreement,
(iv) each person holding or acquiring an Ownership Interest in this
Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be absolutely null and void and will vest no rights in the purported
transferee. The Trustee will provide the Internal Revenue Service and any
pertinent persons with the information needed to compute the tax imposed under
the applicable tax laws on transfers of residual interests to disqualified
organizations, if any person other than a Permitted Transferee acquires an
Ownership Interest on a Class A-R Certificate in violation of the restrictions
mentioned above.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
officer of the Trustee.
B-1-4
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: November ___, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ MORTGAGE SECURITIES TRUST 2001-1
By: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual capacity,
but solely as Trustee
By ____________________________________________
This is the A-R Certificate
referenced in the within-mentioned Agreement
By ________________________________________
Authorized Signatory of
Bankers Trust Company of California, N.A.,
as Trustee
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS LTA-R CERTIFICATE
THIS CERTIFICATE IS AN INTEREST ONLY CERTIFICATE, HAS NO PRINCIPAL BALANCE AND
IS NOT ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL.
NEITHER THIS CERTIFICATE NOR ANY INTEREST IN THIS CERTIFICATE MAY BE OWNED BY
A NON-U.S. PERSON.
THIS CERTIFICATE IS DOES NOT ACCRUE INTEREST AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS OF INTEREST.
THIS CERTIFICATE IS ENTITLED SOLELY TO DISTRIBUTIONS OF RESIDUAL FUNDS, AS
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS OF ANY SUCH PLAN
OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-Off Date : October 1, 2001
First Distribution Date : November 26, 2001
Percentage Interest : 100%
Class : LTA-R
Assumed Final Distribution Date : October 25, 2041
▇-▇-▇
▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1
Mortgage Loan Pass-Through Certificates,
Series 2001-1
Class LTA-R
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of hybrid and adjustable rate, first lien
mortgage loans (the "Mortgage Loans") purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that ▇▇▇▇▇▇▇▇▇ MORTGAGE, INC. is the registered owner of
the Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this
Certificate belongs in a Trust consisting primarily of the Mortgage Loans
deposited by Greenwich Capital Acceptance, Inc. (the "Depositor"). The Trust
was created pursuant to a Pooling and Servicing Agreement dated as of October
1, 2001 (the "Agreement") among the Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans,
Inc. ("TMHL"), as seller (the "Seller"), Washington Mutual Mortgage Securities
Corp., as master servicer (the "Master Servicer"), The Murrayhill Company, as
loss mitigation advisor, and Bankers Trust Company of California, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee.
No transfer of this Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to the Trustee and in substantially the form attached
to the Agreement, to the effect that such transferee is not an employee
benefit or other plan or arrangement subject to Section 406 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"), nor a person
acting on behalf or investing plan assets of any such plan or arrangement,
which representation letter shall not be an expense of the Trustee, or (ii) an
Opinion of Counsel in accordance with the provisions of the Agreement.
Notwithstanding anything else to the contrary herein, any purported transfer
of this Certificate to or on behalf of an employee benefit plan subject to
ERISA or to the Code without the opinion of counsel satisfactory to the
Trustee as described above shall be void and of no effect.
B-2-2
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee, (ii) no Ownership Interest in
this Certificate may be transferred without delivery to the Trustee of (a) a
transfer affidavit of the proposed transferee and (b) a transfer certificate of
the transferor, each of such documents to be in the form described in the
Agreement, (iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must agree
not to transfer an Ownership Interest in this Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee. The Trustee will provide the Internal
Revenue Service and any pertinent persons with the information needed to compute
the tax imposed under the applicable tax laws on transfers of residual interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class A-R Certificate in violation of the
restrictions mentioned above.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
officer of the Trustee.
B-2-3
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: November ___, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ MORTGAGE SECURITIES TRUST 2001-1
By: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual capacity,
but solely as Trustee
By __________________________________________
This is the LTA-R Certificate
referenced in the within-mentioned Agreement
By ________________________________________
Authorized Signatory of
Bankers Trust Company of California, N.A.,
as Trustee
B-2-4
EXHIBIT C
FORM OF SUBORDINATE CERTIFICATE
CLASS B-[ ] CERTIFICATE
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.] [APPLICABLE TO CLASS B-1, CLASS
B-2 AND CLASS B-3 CERTIFICATES ONLY; DELETE FOR CLASS B-4, CLASS B-5 AND CLASS
B-6 CERTIFICATES]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED (A)
UNLESS SUCH TRANSFER IS MADE IN RELIANCE UPON RULE 144A OF THE SECURITIES ACT
OF 1933, AS AMENDED (AS EVIDENCED BY THE INVESTMENT LETTER DELIVERED TO THE
TRUSTEE, IN SUBSTANTIALLY THE FORM ATTACHED TO THE POOLING AND SERVICING
AGREEMENT AND, IF SO REQUIRED BY THE TRUSTEE AND THE DEPOSITOR, A WRITTEN
OPINION OF COUNSEL (WHICH MAY BE IN-HOUSE COUNSEL) ACCEPTABLE TO AND IN FORM
AND SUBSTANCE REASONABLY SATISFACTORY TO THE TRUSTEE AND THE DEPOSITOR, THAT
SUCH TRANSFER MAY BE MADE PURSUANT TO AN EXEMPTION, DESCRIBING THE APPLICABLE
EXEMPTION AND THE BASIS THEREFOR, FROM THE 1933 ACT OR IS BEING MADE PURSUANT
TO THE 1933 ACT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE
TRUSTEE OR THE DEPOSITOR) OR (B) THE TRANSFEROR SHALL HAVE EXECUTED A
TRANSFEROR CERTIFICATE (IN SUBSTANTIALLY THE FORM ATTACHED TO THE POOLING AND
SERVICING AGREEMENT) AND THE TRANSFEREE SHALL HAVE EXECUTED AN INVESTMENT
LETTER (IN SUBSTANTIALLY THE FORM ATTACHED TO THE POOLING AND SERVICING
AGREEMENT) ACCEPTABLE TO AND IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE DEPOSITOR AND THE TRUSTEE CERTIFYING TO THE DEPOSITOR AND THE TRUSTEE THE
FACTS SURROUNDING SUCH TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN
EXPENSE OF THE TRUSTEE OR THE DEPOSITOR.] [APPLICABLE TO CLASS B-4, CLASS B-5
AND CLASS B-6 CERTIFICATES ONLY; DELETE FOR CLASS B-1, CLASS B-2 AND CLASS B-3
CERTIFICATES]
C-1
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS OF ANY SUCH PLAN
OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) A REPRESENTATION THAT THE
PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS 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 THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE
95-60, OR (C) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.] [APPLICABLE TO CLASS B-3, CLASS B-4, CLASS B-5 AND CLASS B-6
CERTIFICATES ONLY; DELETE FOR CLASS B-1 AND CLASS B-2 CERTIFICATES]
THIS CERTIFICATE IS SUBORDINATE IN RIGHT AND PAYMENT AS DESCRIBED IN THE
AGREEMENT REFERRED TO HEREIN.
Certificate No. : [ ]
Cut-Off Date : October 1, 2001
First Distribution Date : November 25, 2001
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[ ]
Original Class Certificate
Principal Balance of this
Class : $[ ]
Percentage Interest : [ ]%
Pass-Through Rate : Fixed Initial
CUSIP : [ ]
Class : [ ]
Assumed Final Distribution Date : October 25, 2041
C-2
▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates,
Series 2001-1
Class B-[ ]
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of hybrid and adjustable rate, first lien
mortgage loans (the "Mortgage Loans") purchased from others by
GREENWICH CAPITAL ACCEPTANCE INC., as Depositor.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by the Depositor, the Seller, the Master Servicer or the Trustee referred to
below or any of their respective affiliates.
This certifies that [CEDE & CO.] [APPLICABLE TO CLASS B-1, B-2 AND B-3
CERTIFICATES ONLY] [_________________________] [APPLICABLE TO CLASS ▇-▇, ▇-▇
AND B-6 CERTIFICATES ONLY]is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Certificate Principal Balance) in certain
monthly distributions with respect to a Trust consisting primarily of the
Mortgage Loans deposited by Greenwich Capital Acceptance, Inc. (the
"Depositor"). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of October 1, 2001 (the "Agreement") among the Depositor,
▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc. ("THML"), as seller (the "Seller"),
Washington Mutual Mortgage Securities Corp., as master servicer, The
Murrayhill Company, as loss mitigation advisor, and Bankers Trust Company of
California, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
[No transfer of this Certificate shall be made unless such disposition is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and any applicable state securities laws or is made
in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless such transfer is made in reliance upon Rule 144A (as
evidenced by the investment letter delivered to the Trustee, in substantially
the form attached to the Pooling and Servicing Agreement, the Trustee and the
Depositor shall require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to
the Trustee and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from
the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor or (ii) the
Trustee shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Pooling and Servicing Agreement) and
the transferee to execute an investment letter (in substantially the form
attached to the Pooling and
C-3
Servicing Agreement) acceptable to and in form and substance reasonably
satisfactory to the Depositor and the Trustee certifying to the Depositor and
the Trustee the facts surrounding such transfer, which investment letter shall
not be an expense of the Trustee or the Depositor.] [APPLICABLE TO CLASS B-4,
CLASS B-5 AND CLASS B-6 CERTIFICATES ONLY; DELETE FOR CLASS B-1, CLASS B-2 AND
CLASS B-3 CERTIFICATES]
[No transfer of this Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to the Trustee and in substantially the form attached
to the Agreement, to the effect that such transferee is not an employee
benefit or other plan or arrangement subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975
of the Internal Revenue Code of 1986 (the "Code"), nor a person acting on
behalf of or investing plan assets of any such plan or arrangement, which
representation letter shall not be an expense of the Trustee, or (ii) if the
purchaser is an insurance company, a representation that the purchaser is an
insurance company which is purchasing such Certificate with funds contained in
an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificate are covered under Sections I and
III of PTCE 95-60 or (iii) an Opinion of Counsel in accordance with the
provisions of the Agreement. Notwithstanding anything else to the contrary
herein, any purported transfer of this Certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.] [APPLICABLE TO CLASS B-3, CLASS B-4, CLASS B-5 AND CLASS B-6
CERTIFICATES ONLY; DELETE FOR CLASS B-1 AND CLASS B-2]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-4
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: November ___, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ MORTGAGE SECURITIES TRUST 2001-1
By: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual capacity,
but solely as Trustee
By _________________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By ________________________________________
Authorized Signatory of
Bankers Trust Company of California, N.A.,
as Trustee
C-5
EXHIBIT D
FORM OF CLASS X CERTIFICATE
CLASS X CERTIFICATE
THIS CERTIFICATE IS AN INTEREST ONLY CERTIFICATE, HAS NO PRINCIPAL BALANCE AND
IS NOT ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL.
NEITHER THIS CERTIFICATE NOR ANY INTEREST IN THIS CERTIFICATE MAY BE OWNED BY
A NON-U.S. PERSON.
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.]
Certificate No. : [ ]
Cut-Off Date : October 1, 2001
First Distribution Date : November 25, 2001
Percentage Interest : [ ]%
Pass-Through Rate : Variable
CUSIP : [ ]
Class : X
Assumed Final Distribution Date : October 25, 2041
D-1
▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates,
Series 2001-1
Class X
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of hybrid and adjustable rate, first lien
mortgage loans (the "Mortgage Loans") purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
Distributions in respect of this Certificate are distributable monthly as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Greenwich Capital Acceptance, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of October 1, 2001 (the
"Agreement") among the Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc.
("TMHL"), as seller (the "Seller"), Washington Mutual Mortgage Securities
Corp., as master servicer, The Murrayhill Company, as loss mitigation advisor,
and Bankers Trust Company of California, N.A., as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This Certificate does not have a principal balance or pass-through rate
and will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining
assets of the Trust will be made only upon presentment and surrender of this
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
D-2
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this
Certificate to be duly executed.
Dated: November ___, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ MORTGAGE SECURITIES TRUST 2001-1
By: BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
not in its individual capacity,
but solely as Trustee
By ________________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By ________________________________________
Authorized Signatory of
Bankers Trust Company of California, N.A.,
as Trustee
D-3
EXHIBIT E
FORM OF REVERSE OF THE CERTIFICATES
▇▇▇▇▇▇▇▇▇ MORTGAGE SECURITIES TRUST 2001-1
Mortgage Loan Pass-Through Certificates, Series 2001-1
Reverse Certificate
This Certificate is one of a duly authorized issue of Certificates
designated as ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1, Mortgage Loan
Pass-Through Certificates, Series 2001-1 (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the first Business Day after the Servicer Remittance Date (the "Distribution
Date"), commencing on the first Distribution Date specified on the face
hereof, to the Person in whose name this Certificate is registered at the
close of business on the applicable Record Date in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of Certificates of the Class to
which this Certificate belongs on such Distribution Date pursuant to the
Agreement.
Distributions on this Certificate shall be made, (i) in the case of a
Physical Certificate, by check or money order mailed to the address of the
person entitled thereto as it appears on the Certificate Register or, upon the
request of a Certificateholder, by wire transfer as set forth in the Agreement
and (ii) in the case of a Book-Entry Certificate, to the Depository, which
shall credit the amounts of such distributions to the accounts of its
Depository Participants in accordance with its normal procedures. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of the
Trustee specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time, by the Depositor, the Seller the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by such amendment, as specified in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The
E-1
Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust will be issued to the
designated transferee or transferees.
[Subject to the terms of the Agreement, each Class of Book-Entry
Certificates will be registered as being held by the Depository or its nominee
and beneficial interests will be held by Certificate Owners through the
book-entry facilities of the Depository or its nominee in minimum
denominations of $25,000 (or $1,000,000 in notional balance in the case of the
Class X Certificates) and integral multiples of $1 in excess thereof.]
[APPLICABLE TO BOOK-ENTRY CERTIFICATES ONLY; DELETE FOR PHYSICAL CERTIFICATES.]
[The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.] [APPLICABLE TO PHYSICAL
CERTIFICATES ONLY; DELETE FOR PHYSICAL CERTIFICATES.]
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Seller and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee nor any such agent shall be affected by any notice to the
contrary.
On any date on which the aggregate of the Principal Balances of the
Mortgage Loans on such date is equal to or less than 10% of the Cut-Off Date
Aggregate Principal Balance, ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., in its
capacity as a Servicer (hereinafter "TMHL"), may purchase, on the next
succeeding Distribution Date, all of the outstanding Mortgage Loans and REO
Properties at a price equal to the sum of (i) the outstanding Stated Principal
Balances of the Mortgage Loans (other than in respect of REO Properties), (ii)
the lesser of (x) the appraised value of any REO Property as determined by the
higher of two appraisals completed by two independent appraisers selected by
the Depositor at the expense of the Depositor and (y) the Stated Principal
Balance of each Mortgage Loan related to any REO Property and (iii) in all
cases, the Termination Price. In the event that TMHL fails to exercise its
purchase right as described above, on any Distribution Date following date on
which the aggregate of the Principal Balance of the Mortgage Loans is less
than or equal to 5% of the Cut-Off Date Aggregate
E-2
Principal Balance, the Master Servicer shall have the option to purchase the
assets of the Trust Fund at the Termination Price. In the event that neither
TMHL nor the Master Purchaser exercises its right of optional termination, the
obligations and responsibilities created by the Agreement will terminate upon
notice to the Trustee upon the earliest of (i) the Distribution Date on which
the Class Certificate Principal Balance of each Class of Certificates has been
reduced to zero, (ii) the final payment or other liquidation of the last
Mortgage Loan and (iii) the Latest Possible Maturity Date. In no event,
however, will the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement.
Capitalized terms used herein that are defined in the Agreement shall
have the meanings ascribed to them in the Agreement, and nothing herein shall
be deemed inconsistent with that meaning.
E-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
----------------------------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of assignee)
the Percentage Interest evidenced by the within Certificate and hereby authorizes the transfer of
registration of such Percentage Interest to assignee on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like denomination
and Class, to the above named assignee and deliver such Certificate to the following address:
----------------------------------------------------------------------------------------------------
Dated: _____________
_____________________________________
Signature by or on behalf of assignor
E-4
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_______________________________________________________for the
account of_______________________________________________________________,
account number ____________________, or, if mailed by check, to _______________
________________________________________________ Applicable statements should be
mailed to ___________________________________________
This information is provided by
_____________________________________________, the assignee named above, or
_____________________________________________________, as its agent.
E-5
EXHIBIT F
[Reserved]
F-1
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
Greenwich Capital Acceptance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Washington Mutual Mortgage Securities Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: WMMSC/▇▇▇▇▇▇▇▇▇ 2001-1
Re: Pooling and Servicing Agreement among Greenwich Capital Acceptance,
Inc., as Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., as Seller,
Washington Mutual Mortgage Securities Corp., as Master Servicer, The
Murrayhill Company, as Loss Mitigation Advisor, Bankers Trust
(Delaware), as Co-Trustee and Bankers Trust Company of California,
N.A., as Trustee, ▇▇▇▇▇▇▇▇▇ Mortgage Loan Pass-Through Certificates,
Series 2001-1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing 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 attached schedule) it has received:
(i) all documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Pooling and Servicing Agreement are in its
possession;
(ii) such documents have been reviewed by the Trustee and have not been
mutilated, damaged or torn and relate to such Mortgage Loan; and
(iii) based on the Trustee's examination and only as to the foregoing,
the information set forth in the Mortgage Loan Schedule that
corresponds to items (i), (ii), (iii), (xiii), (xiv) and (xviii)
of the Mortgage Loan Schedule accurately reflects information set
forth in the Mortgage File
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
G-1-1
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A., as
Trustee
By:__________________________________
Name:________________________________
Title:_______________________________
G-1-2
EXHIBIT G-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
FINAL CERTIFICATION OF TRUSTEE
[date]
Greenwich Capital Acceptance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Washington Mutual Mortgage Securities Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: WMMSC/▇▇▇▇▇▇▇▇▇ 2001-1
Re: Pooling and Servicing Agreement among Greenwich Capital Acceptance,
Inc., as Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., as Seller,
Washington Mutual Mortgage Securities Corp., as Master Servicer, The
Murrayhill Company, as Loss Mitigation Advisor, Bankers Trust
(Delaware), as Co-Trustee and Bankers Trust Company of California,
N.A., as Trustee, ▇▇▇▇▇▇▇▇▇ Mortgage Loan Pass-Through Certificates,
Series 2001-1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing 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
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed either on its face or by
allonge attached thereto in the following form: "Pay to the order of
Bankers Trust Company of California, N.A., as Trustee under the
Pooling and Servicing Agreement, dated as of October 1, 2001,
▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1, Mortgage Loan
Pass-Through Certificates, Series 2001-1, without recourse", or with
respect to any lost Mortgage Note, an original Lost Note Affidavit
stating that the original mortgage note was lost, misplaced or
destroyed, together with a copy of the related mortgage note;
(ii) except as provided below, the original Mortgage with evidence of
recording thereon, and the original recorded power of attorney, if
the Mortgage was
G-2-1
executed pursuant to a power of attorney, with evidence of recording
thereon or, if such Mortgage or power of attorney has been submitted
for recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a
copy of such Mortgage or power of attorney, as the case may be,
certified to be a true and complete copy of the original submitted
for recording;
(iii)an original Assignment of Mortgage, in form and substance
acceptable for recording. The Mortgage shall be assigned to "Bankers
Trust Company of California, N.A., as Trustee;
(iv) an original copy of any intervening Assignment of Mortgage showing a
complete chain of assignments;
(v) the original or a certified copy of lender's title insurance policy;
and
(vi) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(xiii), (xiv) and (xviii) of the definition of the "Mortgage Loan Schedule" in
Section 1.01 of the Pooling and Servicing Agreement accurately reflects
information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:_______________________________
Name:_____________________________
Title:____________________________
G-2-2
EXHIBIT G-3
FORM OF RECEIPT OF MORTGAGE NOTE
Greenwich Capital Acceptance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates,
Series 2001-1
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing Agreement, dated as
of October 1, 2001, among Greenwich Capital Acceptance, Inc., as Depositor,
▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., as Seller, Washington Mutual Mortgage
Securities Corp., as Master Servicer, The Murrayhill Company, as Loss
Mitigation Advisor, Bankers Trust (Delaware), as Co-Trustee and Bankers Trust
Company of California, N.A., as Trustee, we hereby acknowledge the receipt of
the original Mortgage Note with respect to each Mortgage Loan listed on
Exhibit 1, with any exceptions thereto listed on Exhibit 2.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A., as
Trustee
By:
---------------------------------------
Name:
Title:
Dated: October [ ], 2001
G-3-1
EXHIBIT H
FORM OF LOST NOTE AFFIDAVIT
Personally appeared before me the undersigned authority to administer
oaths, ______________________ who first being duly sworn deposes and says:
Deponent is ______________________ of ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc. (the
"Seller") and who has personal knowledge of the facts set out in this
affidavit.
On ___________________, _________________________ did execute and deliver
a promissory note in the principal amount of $__________.
That said note has been misplaced or lost through causes unknown and is
currently lost and unavailable after diligent search has been made. The
Seller's records show that an amount of principal and interest on said note is
still presently outstanding, due, and unpaid, and such Seller is still owner
and holder in due course of said lost note.
The Seller executes this Affidavit for the purpose of inducing Bankers
Trust Company of California, N.A., as trustee on behalf of ▇▇▇▇▇▇▇▇▇ Mortgage
Securities Trust 2001-1, Mortgage Loan Pass-Through Certificates, Series
2001-1, to accept the transfer of the above described loan from the Seller.
The Seller agrees to indemnify Bankers Trust Company of California, N.A.
and Greenwich Capital Acceptance, Inc. and hold them harmless for any losses
incurred by such parties resulting from the fact that the above described Note
has been lost or misplaced.
By: __________________________________
STATE OF )
) Ss:
COUNTY OF )
On this ____ day of _______ 2001, before me, a Notary Public, in and for said
County and State, appeared ________________________, who acknowledged the
extension of the foregoing and who, having been duly sworn, states that any
representations therein contained are true.
Witness my hand and Notarial Seal this ____ day of _______ 2001.
My commission expires _______________.
H-1
EXHIBIT I-1
FORM OF ERISA REPRESENTATION
Greenwich Capital Acceptance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bankers Trust Company of California, N.A.
▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates, Series
2001-1, Class A-R
Ladies and Gentlemen:
1. The undersigned is the ______________________ of
_________________ (the "Transferee"), a [corporation duly organized] and
existing under the laws of __________, on behalf of which he makes this
affidavit.
2. The Transferee either (x) is not an employee benefit plan subject
to Section 406 or Section 407 of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or a plan defined in 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 using the assets of
any such plan; or (y) shall deliver to the Trustee and the Depositor an
opinion of counsel (a "Benefit Plan Opinion") satisfactory to the Trustee and
the Depositor, and upon which the Trustee and the Depositor shall be entitled
to rely, to the effect that the purchase or holding of such Certificate by the
Transferee will not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, 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 Servicer or the Depositor to any obligation in addition to
those undertaken by such entities in the Pooling and Servicing Agreement,
which opinion of counsel shall not be an expense of the Trustee or the
Depositor.
3. The Transferee hereby acknowledges that under the terms of the
Pooling and Servicing Agreement dated as of October 1, 2001 (the "Agreement")
among Greenwich Capital Acceptance, Inc., as Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage
Home Loans, Inc., as Seller, Washington Mutual Mortgage Securities Corp., as
Master Servicer, The Murrayhill Company, as Loss Mitigation Advisor, Bankers
Trust (Delaware), as Co-Trustee and Bankers Trust Company of California, N.A.,
as Trustee, no transfer of the ERISA-Restricted Certificates shall be
permitted to be made to any person unless the Depositor and Trustee have
received a certificate from such transferee in the form hereof.
I-1-1
IN WITNESS WHEREOF, the Transferee has executed this certificate.
_________________________________
[Transferee]
By:______________________________
Name:
Title:
I-1-2
EXHIBIT I-2
FORM OF ERISA REPRESENTATION
Greenwich Capital Acceptance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bankers Trust Company of California, N.A.
▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates,
Series 2001-1, [Class B-4], [B-5], [B-6]
Ladies and Gentlemen:
1. The undersigned is the ______________________ of
_________________ (the "Transferee"), a [corporation duly organized] and
existing under the laws of __________, on behalf of which he makes this
affidavit.
2. The Transferee either (x)(1) is not an employee benefit plan
subject to Section 406 or Section 407 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or a plan defined in 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 using the
assets of any such plan or (2) if the Transferee is an insurance company, such
Transferee is purchasing such Certificates with funds contained in an
"Insurance Company General Account" (as such term is defined in Section V(e)
of the Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60; or (y) shall deliver to the Trustee and the Depositor an
opinion of counsel (a "Benefit Plan Opinion") satisfactory to the Trustee and
the Depositor, and upon which the Trustee and the Depositor shall be entitled
to rely, to the effect that the purchase or holding of such Certificate by the
Transferee will not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, 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 Servicer or the Depositor to any obligation in addition to
those undertaken by such entities in the Pooling and Servicing Agreement,
which opinion of counsel shall not be an expense of the Trustee or the
Depositor.
3. The Transferee hereby acknowledges that under the terms of the
Pooling and Servicing Agreement dated as of October 1, 2001 (the "Agreement")
among Greenwich Capital Acceptance, Inc., as Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage
Home Loans, Inc., as Seller, Washington Mutual Mortgage Securities Corp., as
Master Servicer, The Murrayhill Company, as Loss Mitigation Advisor, Bankers
Trust (Delaware), as Co-Trustee and Bankers Trust Company
I-2-1
of California, N.A., as Trustee, no transfer of the ERISA-Restricted
Certificates shall be permitted to be made to any person unless the Depositor
and Trustee have received a certificate from such transferee in the form
hereof.
I-2-2
IN WITNESS WHEREOF, the Transferee has executed this certificate.
_________________________________
[Transferee]
By:______________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[date]
Greenwich Capital Acceptance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bankers Trust Company of California, N.A.
▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates, Series
2001-1
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates,
we certify that (a) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor", as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, nor are we acting on behalf of any such plan, (e) we
are acquiring the Certificates for investment for our own account and not with
a view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt
from such registration requirements, and if requested, we will at our expense
provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made
J-1-1
pursuant to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and Servicing Agreement.
Very truly yours,
[NAME OF TRANSFEREE]
By:
-------------------------
Authorized Officer
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF RULE 144A INVESTMENT LETTER
[date]
Greenwich Capital Acceptance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bankers Trust Company of California, N.A.
▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates,
Series 2001-1
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have had the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or any additional information deemed necessary to our decision to purchase the
Certificates, (c) we are not an employee benefit plan that is subject to the
Employee Retirement Income Security Act of 1974, as amended, or a plan that is
subject to Section 4975 of the Internal Revenue Code of 1986, as amended, nor
are we acting on behalf of any such plan, (d) we have not, nor has anyone
acting on our behalf offered, transferred, pledged, sold or otherwise disposed
of the Certificates, any interest in the Certificates or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Certificates, any interest in the Certificates or any
other similar security from, or otherwise approached or negotiated with
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under the Securities Act or that would render the disposition of the
Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(e) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
J-2-1
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
Very truly yours,
[NAME OF TRANSFEREE]
By:
---------------------------
Authorized Officer
J-2-2
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
i. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
ii. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $ (1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
--------------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
J-2-3
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, territory
or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment companylicensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of
1958.
___ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors
Act of 1940.
iii. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the
Buyer is not itself a reporting company under the Securities Exchange Act of
1934, as amended.
v. The Buyer acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer may be in reliance on Rule 144A.
vi. Until the date of purchase of the Rule 144A Securities,
the Buyer will notify each of the parties to which this certification is made of
any changes in the information
J-2-4
and conclusions herein. Until such notice is given, the Buyer's purchase of
the Certificates will constitute a reaffirmation of this certification as of
the date of such purchase. In addition, if the Buyer is a bank or savings and
loan is provided above, the Buyer agrees that it will furnish to such parties
updated annual financial statements promptly after they become available.
Print Name of Buyer
By:
---------------------------------
Name:
Title:
Date:
-------------------------------
J-2-5
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Buyer or the Buyer's Family of Investment Companies, the cost of
such securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in the
preceding sentence applies, the securities may be valued at market.
___ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
J-2-6
5. The Buyer is familiar with Rule 144A and understands that
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
Print Name of Buyer or Adviser
By:
---------------------------
Name:
Title:
IF AN ADVISER:
Print Name of Buyer
Date:
--------------------------
J-2-7
EXHIBIT K
FORM OF TRANSFEROR CERTIFICATE
[date]
Greenwich Capital Acceptance, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bankers Trust Company of California, N.A.
▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇▇▇ Mortgage Securities Trust 2001-1,
Mortgage Loan Pass-Through Certificates,
Series 2001-1
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act, (b)
to the extent we are disposing of a Class A-R Certificate or Class LTA-R, we
have no knowledge the Transferee is not a Permitted Transferee and (c) no
purpose of the proposed disposition of a Class LTA-R Certificate is to impede
the assessment or collection of tax.
Very truly yours,
[____________________]
By: ______________________
K-1
EXHIBIT L
AFFIDAVIT OF TRANSFER OF CLASS A-R CERTIFICATE
PURSUANT TO SECTION 5.02(D)
▇▇▇▇▇▇▇▇▇ MORTGAGE SECURITIES TRUST 2001-1,
MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2001-1
STATE OF )
) Ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of_______________ , the proposed
Transferee of a 100% Ownership Interest in the Class A-R Certificate
(the "Certificate") issued pursuant to the Pooling and Servicing
Agreement, (the "Agreement"), dated as of October 1, 2001, relating
to the above-referenced Certificates, among Greenwich Capital
Acceptance, Inc., as Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc.,
as Seller, Washington Mutual Mortgage Securities Corp., as Master
Servicer, The Murrayhill Company, as Loss Mitigation Advisor,
Bankers Trust (Delaware), as Co-Trustee and Bankers Trust Company of
California, N.A., as Trustee. Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings
ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the
Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is
acquiring its Ownership Interest for its own account.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are
not Permitted Transferees; (ii) such tax will be imposed on the
transferor, or, if such Transfer is through an agent (which includes
a broker, nominee or middleman) for a Person that is not a Permitted
Transferee, on the agent; and (iii) the Person otherwise liable for
the tax shall be relieved of liability for the tax if the subsequent
Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the
affidavit is false. The Transferee has provided financial statements
or other financial information requested by the Transferor in
connection with the transfer of the Certificate to permit the
Transferor to assess the financial capability of the Transferee to
pay such taxes.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at
any time during the taxable year of the pass-through entity a Person
that is not a Permitted Transferee is the record holder of an
interest in such entity. The Transferee understands that such tax
will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such
record holder is a Permitted Transferee and the pass-
L-1
through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain
cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for
another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(d) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition
of an Ownership Interest in the Certificate including, without
limitation, the restrictions on subsequent Transfers and the
provisions regarding voiding the Transfer and mandatory sales. The
Transferee expressly agrees to be bound by and to abide by the
provisions of Section 5.02(d) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and
agrees that any breach of any of the representations included herein
shall render the Transfer to the Transferee contemplated hereby null
and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership
Interest in the Certificate, and in connection with any Transfer by
a Person for whom the Transferee is acting as nominee, trustee or
agent, and the Transferee will not Transfer its Ownership Interest
or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection
with any such Transfer by the Transferee, the Transferee agrees to
deliver to the Trustee a certificate substantially in the form set
forth as Exhibit L to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the
Person to which the Transfer is to be made is not a Permitted
Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is .
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor
of a noneconomic residual interest will remain liable for any taxes
due with respect to the income on such residual interest, unless no
significant purpose of the transfer was to impede the assessment or
collection of tax.
11. The Transferee either (x) is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the
Code, nor is the Transferee acting on behalf of or investing plan
assets of such a plan, or (y) if the Transferee is an insurance
company, such Transferee is purchasing such Certificates with funds
contained in an "Insurance Company General Account" (as such term is
defined in Section V(e) of PTCE 95-60) and the purchase and holding
of such Certificates are covered under Sections I and III of PTCE
95-60.
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IN WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its behalf, pursuant to authority of its Board of Directors, by its duly
authorized officer and its corporate seal to be hereunto affixed, duly attested,
this day of , 20 .
[NAME OF TRANSFEREE]
By:
------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
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
Transferee, and acknowledged that he executed the same as his free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 .
----- --------- --
--------------------
NOTARY PUBLIC
My Commission
expires the day of
, 20 .
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EXHIBIT 1 to EXHIBIT L
Certain Definitions
"Disqualified Organization": A "disqualified organization" under Section 860E
of the Code, which as of the Closing Date is any of:
(1) the United States, any state or political subdivision thereof,
any foreign government, any international organization, or any
agency or instrumentality of any of the foregoing,
(2) any 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,
(3) any organization described in Section 1381(a)(2)(C) of the
Code,
(4) an "electing large partnership" within the meaning of Section
775 of the Code or
(5) any other Person so designated by the Trustee based upon an
Opinion of Counsel provided to the Trustee by nationally
recognized counsel acceptable to the Trustee that the holding
of an ownership interest in the Class A-R Certificate by such
Person may cause the Trust Fund or any Person having an
ownership interest in any Class of Certificates (other than
such Person) to incur liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the
transfer of an ownership interest in the Class A-R Certificate
to such Person.
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, a majority of its board of directors is not selected by a
governmental unit. The term "United States", "state" and "international
organizations" shall have the meanings set forth in Section 7701 of the Code.
"Ownership Interest": As to any Certificate, any ownership interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
"Permitted Transferee": Any Transferee of the Class A-R Certificate (other than
a Disqualified Organization or a non-U.S. Person) that is an "Eligible
Corporation," as such term is defined in Section 860L(a)(2) of the Code, and has
assets with a fair market value of at least $100 million (excluding from
consideration obligations of related persons and any asset if a principal
purpose for acquiring such asset was to permit the Purchaser to meet this $100
million asset test) or is a "United States person" (as defined in the Internal
Revenue Code of 1986) and that, if for Federal income tax purposes it is treated
as a division or partnership, all of its members are United States persons, and,
if any member is a partnership or division for U.S. tax purposes, that this
representation applies to all such members.
L-4
"Person": Any individual, corporation, partnership, limited liability company,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership Interest
in the Class A-R Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership Interest
in a Certificate.
L-5
EXHIBIT 2 to EXHIBIT L
Sections 5.02(d) and (e) of the Agreement
(d) No transfer, sale, pledge or other disposition of any Private
Certificate shall be made unless such disposition is exempt from the
registration requirements of the 1933 Act, and any applicable state securities
laws or is made in accordance with the 1933 Act and laws. In the event of any
such transfer, (i) unless such transfer is made in reliance upon Rule 144A (as
evidenced by the investment letter delivered to the Trustee, in substantially
the form attached hereto as Exhibit J under the 1933 Act and, if so required
by the Trustee and the Depositor, a written Opinion of Counsel (which may be
in-house counsel) acceptable to and in form and substance reasonably
satisfactory to the Trustee and the Depositor is delivered to the Trustee and
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act or is being
made pursuant to the 1933 Act, which Opinion of Counsel shall not be an
expense of the Trustee or the Depositor) or (ii) the Trustee shall require the
transferor to execute a transferor certificate and the transferee to execute
an investment letter acceptable to and in form and substance reasonably
satisfactory to the Depositor and the Trustee certifying to the Depositor and
the Trustee the facts surrounding such transfer, which investment letter shall
not be an expense of the Trustee or the Depositor. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Seller and the Depositor against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
No transfer of an ERISA-Restricted Certificate that is also a Physical
Certificate shall be made unless the Trustee shall have received either (i) a
representation from the transferee of such Certificate, acceptable to and in
form and substance satisfactory to the Trustee and the Depositor (such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit I hereto), to
the effect that such transferee is not an employee benefit plan subject to
Section 406 of ERISA or a plan or arrangement subject to Section 4975 of the
Code, nor a person acting on behalf of any such plan or arrangement nor using
the assets of any such plan or arrangement to effect such transfer or (ii)
except in the case of a Class LTA-R Certificate, if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) an Opinion of Counsel satisfactory to the Trustee,
which Opinion of Counsel shall not be an expense of either the Trustee or the
Trust, addressed to the Trustee, to the effect that the purchase and holding
of such ERISA-Restricted Certificate that is also a Physical Certificate will
not result in the assets of the Trust being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee or the Depositor to any obligation in addition to
those expressly undertaken in this Agreement or to any liability.
Notwithstanding anything else to the contrary herein, any purported transfer
of an ERISA-Restricted Certificate that is also a Physical Certificate to an
employee benefit plan subject to ERISA or Section 4975 of the Code without the
delivery to the Trustee of an Opinion of Counsel satisfactory to the Trustee
as described above shall be void and of no effect.
L-6
In the case of an ERISA-Restricted Certificate that is also a Book-Entry
Certificate, for purposes of clauses (i) or (ii) of the first sentence of the
preceding paragraph, such representations shall be deemed to have been made to
the Trustee by the transferee's acceptance of such ERISA-Restricted
Certificate that is also a Book-Entry Certificate (or the acceptance by a
Certificate Owner of the beneficial interest in such Certificate).
To the extent permitted under applicable law (including, but not limited
to, ERISA), neither the Trustee nor the Certificate Registrar shall have any
liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to the Holder
thereof or taking any other action with respect to such Holder under the
provisions of this Agreement so long as the transfer was registered by the
Trustee or the Certificate Registrar in accordance with the foregoing
requirements. In addition, neither the Trustee nor the Certificate Registrar
shall be required to monitor, determine or inquire as to compliance with the
transfer restrictions with respect to any ERISA-Restricted Certificate in the
form of a Book-Entry Certificate, and neither the Trustee nor the Certificate
Registrar shall have any liability for transfers of Book-Entry Certificates or
any interests therein made in violation of the restrictions on transfer
described in the Prospectus Supplement and this Agreement.
(e) Each Person who has or who acquires any Ownership Interest in the
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably appointed the Depositor or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause (v)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in the Class A-R Certificate may be
registered on the Closing Date and no Ownership Interest in a Residual
Certificate may thereafter transferred, and the Trustee shall not
register the Transfer of a Residual Certificate unless, in addition to
the certificates required to be delivered under subsection (b) above,
the Trustee shall have been furnished with an affidavit ("TRANSFER
AFFIDAVIT") of the initial owner of the Class A-R Certificate or
proposed transferee of a Residual Certificate in the form attached
hereto as Exhibit L.
(iii) In connection with any proposed transfer of any
Ownership Interest in a Residual Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to it, in
form and substance satisfactory to it, of each of the following:
A. a Transferor Certificate in the form of Exhibit K
hereto from the proposed transferee to the effect that such
transferee is a Permitted Transferee and that it is not
acquiring an Ownership Interest in such Residual Certificate
that is
L-7
the subject of the proposed transfer as a nominee, trustee
or agent for any Person who is not a Permitted Transferee;
and
B. a covenant of the proposed transferee to the
effect that the proposed transferee agrees to be bound by and
to abide by the transfer restrictions applicable to such
Residual Certificate.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section shall be absolutely null and void and shall vest no rights
in the purported transferee. If any purported transferee shall, in
violation of the provisions of this Section, become a Holder of such
Residual Certificate, then the prior Holder of such Residual
Certificate that is a Permitted Transferee shall, upon discovery that
the registration of Transfer of such Residual Certificate was not in
fact permitted by this Section, be restored to all rights as Holder
thereof retroactive to the date of registration of transfer of such
Residual Certificate. Neither the Trustee nor the Certificate Registrar
shall have any liability to any Person for any registration of Transfer
of a Residual Certificate that is in fact not permitted by this Section
or for making any distributions due on a Residual Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Trustee received
the documents specified in clause (iii). The Trustee shall be entitled
to recover from any Holder of such Residual Certificate that was in
fact not a Permitted Transferee at the time such distributions were
made all distributions made on such Residual Certificate. Any such
distributions so recovered by the Trustee shall be distributed and
delivered by the Trustee to the last Holder of such Residual
Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section, then the Trustee shall have the right but
not the obligation, without notice to the Holder of such Residual
Certificate or any other Person having an Ownership Interest therein,
to notify the Depositor to arrange for the sale of such Residual
Certificate. The proceeds of such sale, net of commissions (which may
include commissions payable to the Depositor or its affiliates in
connection with such sale), expenses and taxes due, if any, will be
remitted by the Trustee to the previous Holder of such Residual
Certificate that is a Permitted Transferee, except that in the event
that the Trustee determines that the Holder of such Residual
Certificate may be liable for any amount due under this Section or any
other provisions of this Agreement, the Trustee may withhold a
corresponding amount from such remittance as security for such claim.
The terms and conditions of any sale under this clause (v) shall be
determined in the sole discretion of the Trustee and it shall not be
liable to any Person having an Ownership Interest in such Residual
Certificate as a result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section, then the Trustee upon receipt of
reasonable compensation will provide to the Internal Revenue Service,
and to the persons specified in Sections 860E(e)(3) and (6) of the
Code,
L-8
information needed to compute the tax imposed under Section
860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee and the Servicer, in form and substance satisfactory to the Trustee, (i)
written notification from the Rating Agencies that the removal of the
restrictions on Transfer set forth in this Section will not cause such Rating
Agency to downgrade its rating of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause either REMIC hereunder to
fail to qualify as a REMIC.
L-9
SCHEDULE I
MORTGAGE LOAN SCHEDULE