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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest Event
Reported): February 1, 2000
CWABS, INC., (as depositor under the Pooling and Servicing Agreement,
dated as of February 1, 2000, providing for the issuance of the CWABS, INC.,
Asset-Backed Certificates, Series 2000-1).
CWABS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 333-84365 95-4596514
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
4500 Park Granada
Calabasas, California 91302
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(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code (818) 225-3240
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<PAGE>
Item 5. Other Events.
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Pooling & Servicing Agreement
On February 1, 2000, CWABS, Inc. (the "Company") entered into a Pooling
and Servicing Agreement dated as of February 1, 2000 (the "Pooling and
Servicing Agreement"), by and among the Company, as depositor, Countrywide
Home Loans, Inc. ("CHL"), as seller and master servicer, and The Bank of New
York, as trustee (the "Trustee"), providing for the issuance of the Company's
Asset-Backed Certificates, Series 2000-1 (the "Certificates"). The Pooling and
Servicing Agreement is annexed hereto as Exhibit 99.1.
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* Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to them in the prospectus and the prospectus
supplement of CWABS, Inc., relating to its Asset-Backed Certificates,
Series 2000-1.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
99.1 Pooling & Servicing Agreement, dated February 1, 2000, by and
among the Company, CHL and the Trustee.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CWABS, INC.
By: /s/ Michael Muir
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Michael Muir
Vice President
Dated: March 14, 2000
<PAGE>
Exhibit Index
Exhibit Page
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99.1 Pooling & Servicing Agreement, dated February 1, 2000, by and among
the Company, CHL and the Trustee.
Enclosure
EXECUTION COPY
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CWABS, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller and Master Servicer
and
THE BANK OF NEW YORK,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2000
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ASSET-BACKED CERTIFICATES, SERIES 2000-1
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Table of Contents
Page
<TABLE>
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ARTICLE I.
DEFINITIONS
<S> <C> <C>
Section 1.01. Defined Terms.................................................................................I-1
Section 1.02. Certain REMIC-Related Defined Terms..........................................................I-48
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.................................................................II-1
Section 2.02. Acceptance by Trustee of the Mortgage Loans..................................................II-6
Section 2.03. Representations, Warranties and Covenants of the Master Servicer and the Seller.............II-12
Section 2.04. Representations and Warranties of the Depositor.............................................II-25
Section 2.05. Delivery of Opinion of Counsel in Connection with Substitutions and Repurchases.............II-26
Section 2.06. Authentication and Delivery of Certificates.................................................II-27
Section 2.07. Covenants of the Master Servicer............................................................II-27
ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans...................................................III-1
Section 3.02. Subservicing; Enforcement of the Obligations of Master Servicer.............................III-2
Section 3.03. Rights of the Depositor, the Trustee in Respect of the Master Servicer......................III-3
Section 3.04. Trustee to Act as Master Servicer...........................................................III-3
Section 3.05. Collection of Mortgage Loan Payments; Certificate Account; Distribution Account;
Pre-Funding Account.........................................................................III-3
Section 3.06. Collection of Taxes, Assessments and Similar Items; Escrow Accounts.........................III-8
Section 3.07. Access to Certain Documentation and Information Regarding the Mortgage Loans................III-8
Section 3.08. Permitted Withdrawals from the Certificate Account, Distribution Account, the Fixed
Rate Carryover Reserve Fund and the Adjustable Rate Carryover Reserve Fund..................III-9
Section 3.09. [Reserved.]................................................................................III-11
Section 3.10. Maintenance of Hazard Insurance............................................................III-11
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements..................................III-12
Section 3.12. Realization Upon Defaulted Mortgage Loans; Determination of Excess Proceeds and
Realized Losses; Repurchase of Certain Mortgage Loans......................................III-13
Section 3.13. Trustee to Cooperate; Release of Mortgage Files............................................III-16
Section 3.14. Documents, Records and Funds in Possession of Master Servicer to be Held for the
Trustee....................................................................................III-17
Section 3.15. Servicing Compensation.....................................................................III-18
Section 3.16. Access to Certain Documentation............................................................III-18
Section 3.17. Annual Statement as to Compliance..........................................................III-19
Section 3.18. Annual Independent Public Accountants' Servicing Statement; Financial Statements...........III-19
ARTICLE IV.
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.....................................................................................IV-1
Section 4.02. Reduction of Servicing Compensation in Connection with Prepayment Interest Shortfalls........IV-1
Section 4.03. REMIC Distributions..........................................................................IV-2
Section 4.04. Distributions................................................................................IV-2
Section 4.05. Monthly Statements to Certificateholders.....................................................IV-9
Section 4.06. REMIC 1F, REMIC 1V, REMIC 2, REMIC 3, and REMIC 4 Allocations...............................IV-12
Section 4.07. Extra Master Servicing Fee..................................................................IV-18
Section 4.08. Fixed Rate Carryover Reserve Fund...........................................................IV-19
Section 4.09. Adjustable Rate Carryover Reserve Fund......................................................IV-20
ARTICLE V.
THE CERTIFICATES
Section 5.01. The Certificates..............................................................................V-1
Section 5.02. Certificate Register; Registration of Transfer and Exchange of Certificates...................V-2
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.............................................V-6
Section 5.04. Persons Deemed Owners.........................................................................V-6
Section 5.05. Access to List of Certificateholders' Names and Addresses.....................................V-6
Section 5.06. Book-Entry Certificates.......................................................................V-6
Section 5.07. Notices to Depository.........................................................................V-8
Section 5.08. Definitive Certificates.......................................................................V-8
Section 5.09. Maintenance of Office or Agency...............................................................V-8
ARTICLE VI.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER
Section 6.01. Respective Liabilities of the Depositor, the Master Servicer and the Seller..................VI-1
Section 6.02. Merger or Consolidation of the Depositor, the Master Servicer or the Seller..................VI-1
Section 6.03. Limitation on Liability of the Depositor, the Seller, the Master Servicer and others.........VI-1
Section 6.04. Limitation on Resignation of Master Servicer.................................................VI-2
Section 6.05. Errors and Omissions Insurance; Fidelity Bonds...............................................VI-2
ARTICLE VII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 7.01. Events of Default...........................................................................VII-1
Section 7.02. Trustee to Act; Appointment of Successor....................................................VII-2
Section 7.03. Notification to Certificateholders..........................................................VII-4
ARTICLE VIII.
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee..........................................................................VIII-1
Section 8.02. Certain Matters Affecting the Trustee......................................................VIII-2
Section 8.03. Trustee Not Liable for Mortgage Loans......................................................VIII-3
Section 8.04. Trustee May Own Certificates...............................................................VIII-3
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses.........................................VIII-3
Section 8.06. Eligibility Requirements for Trustee.......................................................VIII-4
Section 8.07. Resignation and Removal of Trustee.........................................................VIII-4
Section 8.08. Successor Trustee..........................................................................VIII-5
Section 8.09. Merger or Consolidation of Trustee.........................................................VIII-6
Section 8.10. Appointment of Co-Trustee or Separate Trustee..............................................VIII-6
Section 8.11. Tax Matters................................................................................VIII-7
ARTICLE IX.
TERMINATION
Section 9.01. Termination upon Liquidation or Repurchase of all Mortgage Loans.............................IX-1
Section 9.02. Final Distribution on the Certificates.......................................................IX-1
Section 9.03. Additional Termination Requirements..........................................................IX-3
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.....................................................................................X-1
Section 10.02. Recordation of Agreement; Counterparts........................................................X-2
Section 10.03. Governing Law.................................................................................X-2
Section 10.04. Intention of Parties..........................................................................X-3
Section 10.05. Notices.......................................................................................X-3
Section 10.06. Severability of Provisions....................................................................X-4
Section 10.07. Assignment....................................................................................X-4
Section 10.08. Limitation on Rights of Certificateholders....................................................X-4
Section 10.09. Inspection and Audit Rights...................................................................X-5
Section 10.10. Certificates Nonassessable and Fully Paid.....................................................X-6
</TABLE>
POOLING AND SERVICING AGREEMENT, dated as of February 1, 2000, among
CWABS, INC., a Delaware corporation, as depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC., a New York corporation (in its capacity as
seller hereunder, the "Seller", and in its capacity as master servicer
hereunder, the "Master Servicer"), and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to the
Trustee in return for the Certificates. As provided herein, the Trustee shall
elect that the Trust Fund be treated for Federal income tax purposes as six
separate real estate mortgage investment conduits (each a "REMIC" or, in the
alternative, "REMIC BTF", "REMIC BTV", "REMIC 1", "REMIC 2", "REMIC 3", and
"REMIC 4", respectively, REMIC 4 also being referred to as the "Upper Tier
REMIC." The Class AF-1, Class AF-2, Class AF-3, Class AF-4, Class AF-5, Class
AF-6, Class MF-1, Class MF-2, Class BF, Class AV-1, Class AV-2, Class MV-1,
Class MV-2, Class BV, Class BF-IO, and Class BV-IO Certificates represent
ownership of all of the regular interests in REMIC 4. The Class R-4 Interest
represents the sole class of "residual interest" in REMIC 4 for purposes of
the REMIC provisions. Each of the Class R-BTF, Class R-BTV, Class R-1, Class
R-2, and Class R-3 Interests represent the sole class of residual interest in
REMIC BTF, REMIC BTV, REMIC 1, REMIC 2, and REMIC 3, respectively, for
purposes of the REMIC provisions. Under this Agreement, REMIC BTF will issue a
single REMIC Regular Interest for each Fixed Rate Credit Comeback Loan (each
such Regular Interest, a "REMIC BTF Credit Comeback Loan Regular Interest")
whose rate of interest accrual on any Distribution Date will equal the rate of
accrual the underlying Fixed Rate Credit Comeback Loan would have in the event
that all payments are made timely under the terms of such underlying Fixed
Rate Credit Comeback Loan, as well as one class of uncertificated REMIC BTF
Regular Interests (the Class BTF-1 Interests). Under this Agreement, there is
also one class of uncertificated REMIC BTV regular interests issued (the Class
BTV-1 Interest), six classes of uncertificated REMIC 1 regular interests
issued (the Class T1-F1, Class T1-F2, Class T1-F3, Class T1-V1, Class T1-V2,
and Class T1-V3 Interests), eight classes of uncertificated REMIC 2 regular
interests issued (the Class T2-F1, Class T2-F2, Class T2-F3, Class T2-F4,
Class T2-V1, Class T2-V2, Class T2-V3, and Class T2-V4 Interests), twenty-two
classes of uncertificated REMIC 3 regular interests issued (the Class T3-F1,
Class T3-F2, Class T3-F3, Class T3-F4, Class T3-F5, Class T3-F6, Class T3-F7,
Class T3-F8, Class T3-F9, Class T3-F1IO, Class T3-F2IO, Class T3-F3IO, Class
T3-F0C, Class T3-V1, Class T3-V2, Class T3-V3, Class T3-V4, Class T3-V5, Class
T3-V1IO, Class T3-V2IO, Class T3-V3IO and Class T3-V0C Interests), and
twenty-eight classes of uncertificated REMIC 4 regular interests issued (the
Class T4-F1, Class T4-F2, Class T4-F3, Class T4-F4, Class T4-F5, Class T4-F6,
Class T4-F7, Class T4-F8, Class T4-F9, Class T4-F1IO, Class T4-F2IO, Class
T4-F3IO, Class T4-F4IO, Class T4-F5IO, Class T4-F6IO, Class T4-F7IO, Class
T4-F8IO, Class T4-F9IO, Class T4-V1, Class T4-V2, Class T4-V3, Class T4-V4,
Class T4-V5, Class T4-V1IO, Class T4-V2IO, Class T4-V3IO, Class T4-V4IO, and
Class T4-V5IO Interests). The REMIC BTF Regular Interests and REMIC BTV
Regular Interests will be held as assets of REMIC 1, the REMIC 1 Regular
Interests will be held as assets of REMIC 2, the REMIC 2 Regular Interests
will be held as assets of REMIC 3, and the REMIC 3 Regular Interests will be
held as assets of REMIC 4. The "start up date" for federal income tax purposes
is February 29, 2000. The "latest possible maturity date" for federal income
tax purposes of all interests created hereby will be the Latest Possible
Maturity Date.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Seller and the Trustee agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Defined Terms.
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In addition to those defined terms defined in Section 1.02, whenever used
in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Accrual Period: With respect to the Fixed Rate Certificates (other than
the Class AF-1 Certificates) and any Distribution Date, the calendar month
immediately preceding such Distribution Date. With respect to the Adjustable
Rate Certificates and the Class AF-1 Certificates and any Distribution Date,
the period commencing on the immediately preceding Distribution Date (or, in
the case of the first Distribution Date, the Closing Date) and ending on the
day immediately preceding such Distribution Date. All calculations of interest
on the Fixed Rate Certificates (other than the Class AF-1 Certificates) will
be made on the basis of a 360-day year consisting of twelve 30-day months, and
all calculations of interest on the Adjustable Rate Certificates and the Class
AF-1 Certificates will be made on the basis of the actual number of days
elapsed in the related Accrual Period and in a 360 day year.
Adjustable Net Rate: The weighted average Net Mortgage Rate for
Adjustable Rate Mortgage Loans. For purposes of the definition of Adjustable
Net Rate, all calculations of interest in respect of a Mortgage Loan at the
Mortgage Rate less the related Servicing Fee Rate will be made on the basis of
the actual number of days in the related Accrual Period and a 360 day year.
The Adjustable Net Rate in respect of the first Distribution Date shall be
10.636%.
Adjustable Rate Carryover Reserve Fund: The separate Eligible Account
created and initially maintained by the Trustee pursuant to Section 4.09 in
the name of the Trustee for the benefit of the Adjustable Rate
Certificateholders and designated "The Bank of New York in trust for
registered holders of CWABS, Inc., Asset-Backed Certificates, Series 2000-1".
Funds in the Adjustable Rate Carryover Reserve Fund shall be held in trust for
the Adjustable Rate Certificateholders for the uses and purposes set forth in
this Agreement.
Adjustable Rate Certificate Carryover: With respect to any Distribution
Date, an amount equal to the sum of (i) the Class AV-1 Interest Carryover
Amount for such Distribution Date (if any), (ii) the Class AV-2 Interest
Carryover Amount for such Distribution Date (if any), (iii) the Class MV-1
Interest Carryover Amount for such Distribution Date (if any), (iv) the Class
MV-2 Interest Carryover Amount for such Distribution Date (if any) and (v) the
Class BV Interest Carryover Amount for such Distribution Date (if any);
provided that when the term Adjustable Rate Certificate Carryover is used with
respect to one Class of Adjustable Rate Certificates, it shall mean such
carryover amount listed in clauses (i), (ii), (iii), (iv) or (v) as
applicable, with the same Class designation.
Adjustable Rate Certificateholder: A holder of an Adjustable Rate
Certificate.
Adjustable Rate Certificate Principal Balance: The sum of the Class AV-1
Certificate Principal Balance, the Class AV-2 Certificate Principal Balance,
the Class MV-1 Certificate Principal Balance, the Class MV-2 Certificate
Principal Balance and the Class BV Certificate Principal Balance.
Adjustable Rate Certificates: Any of the Class AV-1, Class AV-2, Class
MV-1, Class MV-2, Class BV and/or Class BV-IO Certificates.
Adjustable Rate Class A Certificate Principal Balance: The sum of the
Class AV-1 Certificate Principal Balance and the Class AV-2 Certificate
Principal Balance.
Adjustable Rate Class A Certificates: Any of the Class AV-1 and/or the
Class AV-2 Certificates.
Adjustable Rate Class A Principal Distribution Amount: With respect to
(i) any Distribution Date, the excess of (A) the Adjustable Rate Class A
Certificate Principal Balance immediately prior to such Distribution Date over
(B) the lesser of (I) 68.50% of the Stated Principal Balance for such
Distribution Date of the Adjustable Rate Mortgage Loans and (II) the Stated
Principal Balance for such Distribution Date of the Adjustable Rate Mortgage
Loans less the OC Floor for the Adjustable Rate Mortgage Loans.
Adjustable Rate Class B Principal Distribution Amount: With respect to
any Distribution Date, the excess of (i) the sum of (A) the Adjustable Rate
Class A Certificate Principal Balance (after taking into account distribution
of the Adjustable Rate Class A Principal Distribution Amount on such
Distribution Date), (B) the Class MV-1 Certificate Principal Balance (after
taking into account distribution of the Class MV-1 Principal Distribution
Amount on such Distribution Date), (C) the Class MV-2 Certificate Principal
Balance (after taking into account distribution of the Class MV-2 Principal
Distribution Amount for such Distribution Date), and (D) the Class BV
Certificate Principal Balance immediately prior to such Distribution Date over
(ii) the lesser of (A) 97.00% of the Stated Principal Balance for such
Distribution Date of the Adjustable Rate Mortgage Loans and (B) the Stated
Principal Balance for such Distribution Date of the Adjustable Rate Mortgage
Loans less the OC Floor for the Adjustable Rate Mortgage Loans; provided that
after the Adjustable Rate Class A Certificate Principal Balance, the Class
MV-1 Certificate Principal Balance and the Class MV-2 Certificate Principal
Balance have been reduced to zero, the Adjustable Rate Class B Principal
Distribution Amount for such Distribution Date will equal 100% of the
Adjustable Rate Principal Distribution Amount for such Distribution Date.
Adjustable Rate Excess Cashflow: With respect to any Distribution Date,
the aggregate amounts constituting Excess Cashflow for such Distribution Date
pursuant to Sections 4.04(b)(v), 4.04(d)(i)(E) and 4.04(d)(ii)(E), that are
attributable to the Adjustable Rate Mortgage Loans.
Adjustable Rate Extra Principal Distribution Amount: With respect to any
Distribution Date, the lesser of (i) the excess, if any, of the Adjustable
Rate Specified Overcollateralization Amount for such Distribution Date over
the Adjustable Rate Overcollateralization Amount for such Distribution Date
(after giving effect to distributions of principal on the Adjustable Rate
Certificates other than any Adjustable Rate Extra Principal Distribution
Amount) and (ii) the Adjustable Rate Excess Cashflow for such Distribution
Date available therefor in the priority set forth in Section 4.04.
Adjustable Rate Interest Funds: With respect to Adjustable Rate Mortgage
Loans and any Master Servicer Advance Date, the sum, without duplication, of
(i) all scheduled interest collected during the related Due Period with
respect to the Adjustable Rate Mortgage Loans less the related Servicing Fee,
(ii) all Advances relating to interest with respect to the Adjustable Rate
Mortgage Loans, (iii) all Compensating Interest with respect to the Adjustable
Rate Mortgage Loans and (iv) Liquidation Proceeds with respect to the
Adjustable Rate Mortgage Loans collected during the related Due Period (to the
extent such Liquidation Proceeds relate to interest), less all Nonrecoverable
Advances relating to interest reimbursed during the related Due Period.
Adjustable Rate Mortgage Loans: The group of Mortgage Loans identified in
the related Mortgage Loan Schedule as having a Mortgage Rate which is
adjustable for the life of the related Mortgage, including any Mortgage Loans
delivered in replacement thereof.
Adjustable Rate Overcollateralization Amount: With respect to any
Distribution Date, the excess, if any, the sum of the Stated Principal Balance
for such Distribution Date of the Adjustable Rate Mortgage Loans plus the
amount (if any) in the Pre-Funding Account allocated to purchase Subsequent
Mortgage Loans to be included in the Loan Group of Adjustable Rate Mortgage
Loans, over the Certificate Principal Balances of all Adjustable Rate
Certificates on such date (after taking into account the payment of principal
other than any Adjustable Rate Extra Principal Distribution Amount, on such
Certificates on such Distribution Date).
Adjustable Rate Principal Distribution Amount: With respect to each
Distribution Date, the sum of (i) the Adjustable Rate Principal Funds for such
Distribution Date, (ii) any Adjustable Rate Extra Principal Distribution
Amount for such Distribution Date and (iii) for the April 2000 Distribution
Date, any amounts remaining in the Pre-Funding Account after the end of the
Funding Period that were allocated to purchase Subsequent Mortgage Loans to be
included in the Loan Group of Adjustable Rate Mortgage Loans (net of any
investment income therefrom).
Adjustable Rate Principal Funds: With respect to the Adjustable Rate
Mortgage Loans, the sum, without duplication, of (i) the scheduled principal
collected during the related Due Period or Advanced on or before the related
Master Servicer Advance Date, (ii) prepayments collected during the related
Prepayment Period, (iii) the Stated Principal Balance of each Adjustable Rate
Mortgage Loan that was repurchased by the Seller or the Master Servicer for
the related Determination Date, (iv) the aggregate of all Substitution
Adjustment Amounts for the related Determination Date in connection with the
substitution of Adjustable Rate Mortgage Loans pursuant to Section 2.03(c) and
(v) all Liquidation Proceeds collected during the related Due Period (to the
extent such Liquidation Proceeds relate to principal) less all Nonrecoverable
Advances relating to principal reimbursed during the related Due Period.
Adjustable Rate Remainder Excess Cashflow: With respect to any
Distribution Date, the Adjustable Rate Excess Cashflow for such Distribution
Date remaining after the applications set forth in Section 4.04(g)(i) through
(vii).
Adjustable Rate Specified Overcollateralization Amount: Prior to the
Adjustable Rate Stepdown Date, 1.50% of the sum of the Stated Principal
Balance as of the Initial Cut-off Date of the Adjustable Rate Mortgage Loans
that are Initial Mortgage Loans plus the amount of the Pre-Funded Amount
originally allocated to purchase Subsequent Mortgage Loans to be included in
the Loan Group of Adjustable Rate Mortgage Loans and on and after the
Adjustable Rate Stepdown Date, 3.00% of the Stated Principal Balance of the
Adjustable Rate Mortgage Loans for the related Distribution Date, subject to a
minimum amount equal to the OC Floor for the Adjustable Rate Mortgage Loans;
provided that, if on any Distribution Date an Adjustable Rate Trigger Event is
in effect, the Adjustable Rate Specified Overcollateralization Amount shall
not be reduced to the applicable percentage of the then current Stated
Principal Balance of the Adjustable Rate Mortgage Loans until the Distribution
Date on which an Adjustable Rate Trigger Event no longer exists.
Adjustable Rate Standard Rate: The lesser of (i) the sum of (A) One Month
LIBOR plus (B) the Class BV Margin, and (ii) the Adjustable Net Rate for such
Distribution Date.
Adjustable Rate Stepdown Date: With respect to Adjustable Rate
Certificates, the later to occur of (i) the Distribution Date in March 2003 or
(ii) the first Distribution Date on which the Adjustable Rate Class A
Certificate Principal Balance is less than or equal to 68.50% of the Stated
Principal Balance of the Adjustable Rate Mortgage Loans.
Adjustable Rate Subordinated Certificates: The Class MV-1, Class MV-2 and
Class BV Certificates.
Adjustable Rate Trigger Event: With respect to any Distribution Date
after the Adjustable Rate Stepdown Date, (1) the product of (i) 2.5 times (ii)
the quotient (expressed as a percentage) of (A) the numerator of which is the
aggregate Stated Principal Balances for such Distribution Date of all
Adjustable Rate Mortgage Loans 60 or more days delinquent as of the preceding
Due Date (including Adjustable Rate Mortgage Loans in foreclosure and REO
Properties) and (B) the denominator of which is the aggregate Stated Principal
Balances for such Distribution Date of all Adjustable Rate Mortgage Loans
equals or exceeds (2) the Required Percentage.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, each date on
which the related Mortgage Rate is subject to adjustment, as provided in the
related Mortgage Note.
Advance: The aggregate of the advances required to be made by the Master
Servicer with respect to any Distribution Date pursuant to Section 4.01, the
amount of any such advances being equal to the sum of (A) the aggregate of
payments of principal and interest (net of the Servicing Fees) on the Mortgage
Loans that were due on the related Due Date and not received as of the close
of business on the related Determination Date and (B) with respect to each REO
Property that has not been liquidated, an amount equal to the excess, if any,
of (x) one month's interest (adjusted to the Net Mortgage Rate) on the Stated
Principal Balance of the related Mortgage Loan over (y) the net monthly rental
income (if any) from such REO Property deposited in the Certificate Account
for such Distribution Date pursuant to Section 3.12, less the aggregate amount
of any such delinquent payments that the Master Servicer has determined would
constitute a Nonrecoverable Advance were an advance to be made with respect
thereto.
Agreement: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto made in accordance with the terms herein.
Amount Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business on
the immediately preceding Determination Date on account of (i) all Scheduled
Payments or portions thereof received in respect of the Mortgage Loans due
after the related Due Date and (ii) Principal Prepayments and Liquidation
Proceeds received in respect of such Mortgage Loans after the last day of the
related Prepayment Period or Due Period, respectively.
Applied Realized Loss Amount: With respect to any Distribution Date, the
sum of the Realized Losses with respect to the Mortgage Loans which are to be
applied in reduction of the Certificate Principal Balance of the Certificates
pursuant to this Agreement, which shall on any such Distribution Date equal
the amount, if any, by which, (i) with respect to the Fixed Rate Certificates,
the Fixed Rate Certificate Principal Balance (after all distributions of
principal on such Distribution Date) exceeds the Stated Principal Balance for
such Distribution Date of the Fixed Rate Mortgage Loans, and (ii) with respect
to the Adjustable Rate Certificates, the Adjustable Rate Certificate Principal
Balance (after all distributions of principal on such Distribution Date)
exceeds the Stated Principal Balance for such Distribution Date of the
Adjustable Rate Mortgage Loans.
Appraised Value: The appraised value of the Mortgaged Property based upon
the appraisal made for the Seller by a fee appraiser at the time of the
origination of the related Mortgage Loan, or the sales price of the Mortgaged
Property at the time of such origination, whichever is less, or with respect
to any Mortgage Loan originated in connection with a refinancing, the
appraised value of the Mortgaged Property based upon the appraisal made at the
time of such refinancing.
Available Funds Cap: For any Distribution Date with respect to the
Adjustable Rate Certificates, a per annum rate equal to the quotient of (x)
the lesser of (i) the total scheduled interest collected or Advanced on the
Adjustable Rate Mortgage Loans in Loan Subgroup 1A and (ii) the total
scheduled interest collected or Advanced on the Adjustable Rate Mortgage Loans
in Loan Subgroup 2A, in each case based on the Mortgage Rates in effect on the
related Due Date less the related Servicing Fee for such Distribution Date
multiplied by 360 over the actual number of days in the Due Period, divided by
(y) the Certificate Principal Balance of the Adjustable Rate Certificates.
Bankruptcy Code: Title 11 of the United States Code.
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 5.06). As of the Closing
Date, each Class of Regular Certificates (other than the Class B-IO
Certificates) constitutes a Class of Book-Entry Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of New York, New York or 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 one of the certificates of any Class executed and
authenticated by the Trustee in substantially the forms attached hereto as
exhibits.
(a) Certificate Account: The separate Eligible Account created and
initially maintained by the Master Servicer pursuant to Section 3.05(b) with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of the Certificateholders and designated "Countrywide
Home Loans, Inc. in trust for registered holders of CWABS, Inc., Asset-Backed
Certificates, Series 2000-1". Funds in the Certificate Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in
this Agreement.
Certificate Group: Either of the Fixed Rate Certificates or the
Adjustable Rate Certificates.
Certificate Owner: With respect to a Book-Entry Certificate, the person
that is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: As to any Certificate (other than any
Class B-IO Certificates) and as of any Distribution Date, the Initial
Certificate Principal Balance of such Certificate less the sum of (i) all
amounts distributed with respect to such Certificate in reduction of the
Certificate Principal Balance thereof on previous Distribution Dates pursuant
to Section 4.04, and (ii) any Applied Realized Loss Amounts allocated to such
Certificate on previous Distribution Dates pursuant to (i) Section 4.04(l) for
the Fixed Rate Certificates and (ii) Section 4.04(m) for the Adjustable Rate
Certificates. References herein to the Certificate Principal Balance of a
Class of Certificates or a Certificate Group shall mean the Certificate
Principal Balances of all Certificates in such Class or all Certificates in
such Certificate Group, as the case may be.
Certificate Register: The register maintained pursuant to Section 5.02
hereof.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register (initially, Cede & Co., as nominee for
the Depository, in the case of any Class of Regular Certificates (other than
the Class B-IO Certificates), except that solely for the purpose of giving any
consent pursuant to this Agreement, any Certificate registered in the name of
the Depositor or any affiliate of the Depositor shall be deemed not to be
Outstanding and the Voting Interest evidenced thereby shall not be taken into
account in determining whether the requisite amount of Voting Interests
necessary to effect such consent has been obtained; provided that if any such
Person (including the Depositor) owns 100% of the Voting Interests evidenced
by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for purposes of any provision hereof that requires the consent of
the Holders of Certificates of a particular Class as a condition to the taking
of any action hereunder. The Trustee is entitled to rely conclusively on a
certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of
the Depositor.
Class: All Certificates bearing the same Class designation as set forth
in Section 5.01 hereof.
Class AF-1 Certificate: Any Certificate designated as a "Class AF-1
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class AF-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-1
Certificates.
Class AF-1 Current Interest: For any Distribution Date, the interest
accrued on the Class AF-1 Certificate Principal Balance during the related
Accrual Period at the Class AF-1 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class AF-1 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class AF-1 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
AF-1 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class AF-1 Pass-Through Rate for
the related Accrual Period.
Class AF-1 Margin: For any Distribution Date, 0.1400% per annum.
Class AF-1 Net Rate Carryover Amount: For any Distribution Date on which
the Class AF-1 Pass-Through Rate is based upon the Fixed Net Rate Cap, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class AF-1
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class AF-1 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class AF-1 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class AF-1 Net Rate Carryover Amount for
all previous Distribution Dates not previously paid pursuant to Section
4.04(h), together with interest thereon at the Pass-Through Rate (without
giving effect to the Fixed Net Rate Cap).
Class AF-1 Pass-Through Rate: For the first Distribution Date, 6.075% per
annum. For any Distribution Date thereafter, the lesser of (i) One-Month LIBOR
plus the Class AF-1 Margin and (iii) the Fixed Net Rate Cap.
Class AF-2 Certificate: Any Certificate designated as a "Class AF-2
Certificate" on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to distributions as set forth herein.
Class AF-2 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-2
Certificates.
Class AF-2 Current Interest: For any Distribution Date, the interest
accrued on the Class AF-2 Certificate Principal Balance during the related
Accrual Period at the Class AF-2 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class AF-2 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class AF-2 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
AF-2 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class AF-2 Pass-Through Rate for
the related Accrual Period.
Class AF-2 Net Rate Carryover Amount: For any Distribution Date on which
the Class AF-2 Pass-Through Rate is based upon the Fixed Net Rate Cap, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class AF-2
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class AF-2 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class AF-2 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class AF-2 Net Rate Carryover Amount for
all previous Distribution Dates not previously paid pursuant to Section
4.04(g), together with interest thereon at the Pass-Through Rate (without
giving effect to the Fixed Net Rate Cap).
Class AF-2 Pass-Through Rate: For any Distribution Date, the lesser of
(i) 7.74% per annum and (ii) the Fixed Net Rate Cap.
Class AF-3 Certificate: Any Certificate designated as a "Class AF-3
Certificate" on the face thereof, in the form of Exhibit A-3 hereto,
representing the right to distributions as set forth herein.
Class AF-3 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-3
Certificates.
Class AF-3 Current Interest: For any Distribution Date, the interest
accrued on the Class AF-3 Certificate Principal Balance during the related
Accrual Period at the Class AF-3 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class AF-3 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class AF-3 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
AF-3 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class AF-3 Pass-Through Rate for
the related Accrual Period.
Class AF-3 Net Rate Carryover Amount: For any Distribution Date on which
the Class AF-3 Pass-Through Rate is based upon the Fixed Net Rate Cap, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class AF-3
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class AF-3 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class AF-3 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class AF-3 Net Rate Carryover Amount for
all previous Distribution Dates not previously paid pursuant to Section
4.04(h), together with interest thereon at the Pass-Through Rate (without
giving effect to the Fixed Net Rate Cap).
Class AF-3 Pass-Through Rate: For any Distribution Date, the lesser of
(i) 7.83% per annum and (ii) the Fixed Net Rate Cap.
Class AF-4 Certificate: Any Certificate designated as a "Class AF-4
Certificate" on the face thereof, in the form of Exhibit A-4 hereto,
representing the right to distributions as set forth herein.
Class AF-4 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-4
Certificates.
Class AF-4 Current Interest: For any Distribution Date, the interest
accrued on the Class AF-4 Certificate Principal Balance during the related
Accrual Period at the Class AF-4 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class AF-4 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class AF-4 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
AF-4 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class AF-4 Pass-Through Rate for
the related Accrual Period.
Class AF-4 Net Rate Carryover Amount: For any Distribution Date on which
the Class AF-4 Pass-Through Rate is based upon the Fixed Net Rate Cap, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class AF-4
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class AF-4 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class AF-4 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class AF-4 Net Rate Carryover Amount for
all previous Distribution Dates not previously paid pursuant to Section
4.04(h), together with interest thereon at the Pass-Through Rate (without
giving effect to the Fixed Net Rate Cap).
Class AF-4 Pass-Through Rate: For any Distribution Date, the lesser of
(i) 8.14% per annum and (ii) the Fixed Net Rate Cap.
Class AF-5 Certificate: Any Certificate designated as a "Class AF-5
Certificate" on the face thereof, in the form of Exhibit A-5 hereto,
representing the right to distributions as set forth herein.
Class AF-5 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-5
Certificates.
Class AF-5 Current Interest: For any Distribution Date, the interest
accrued on the Class AF-5 Certificate Principal Balance during the related
Accrual Period at the Class AF-5 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class AF-5 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class AF-5 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
AF-5 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class AF-5 Pass-Through Rate for
the related Accrual Period.
Class AF-5 Net Rate Carryover Amount: For any Distribution Date on which
the Class AF-5 Pass-Through Rate is based upon the Fixed Net Rate Cap, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class AF-5
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class AF-5 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class AF-5 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class AF-5 Net Rate Carryover Amount for
all previous Distribution Dates not previously paid pursuant to Section
4.04(h), together with interest thereon at the Pass-Through Rate (without
giving effect to the Fixed Net Rate Cap).
Class AF-5 Pass-Through Rate: For (a) any Distribution Date on or prior
to the Optional Termination Date for the Fixed Rate Certificates, the lesser
of (i) 8.30% per annum and (ii) the Fixed Net Rate Cap and (b) any
Distribution Date after such Optional Termination Date, the lesser of (i)
8.80% per annum and (ii) the Fixed Net Rate Cap.
Class AF-6 Certificate: Any Certificate designated as a "Class AF-6
Certificate" on the face thereof, in the form of Exhibit A-6 hereto,
representing the right to distributions as set forth herein.
Class AF-6 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-6
Certificates.
Class AF-6 Current Interest: For any Distribution Date, the interest
accrued on the Class AF-6 Certificate Principal Balance during the related
Accrual Period at the Class AF-6 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class AF-6 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class AF-6 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
AF-6 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class AF-6 Pass-Through Rate for
the related Accrual Period.
Class AF-6 Net Rate Carryover Amount: For any Distribution Date on which
the Class AF-6 Pass-Through Rate is based upon the Fixed Net Rate Cap, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class AF-6
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class AF-6 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class AF-6 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class AF-6 Net Rate Carryover Amount for
all previous Distribution Dates not previously paid pursuant to Section
4.04(h), together with interest thereon at the Pass-Through Rate (without
giving effect to the Fixed Net Rate Cap).
Class AF-6 Pass-Through Rate: For (a) any Distribution Date on or prior
to the Optional Termination Date for the Fixed Rate Certificates, the lesser
of (i) 7.95% per annum and (ii) the Fixed Net Rate Cap and (b) any
Distribution Date after such Optional Termination Date, the lesser of (i)
8.45% per annum and (ii) the Fixed Net Rate Cap.
Class AF-6 Principal Distribution Amount: For any Distribution Date, an
amount equal to the product of (i) a fraction, the numerator of which is the
Certificate Principal Balance of the Class AF-6 Certificates and the
denominator of which is the Fixed Rate Class A Certificate Principal Balance
in each case immediately prior to such Distribution Date, (ii) the Fixed Rate
Class A Principal Distribution Amount for such Distribution Date and (iii) the
Class AF-6 PDA Factor for such Distribution Date.
Class AF-6 PDA Factor: For any Distribution Date set forth below, the
percentage set forth across from such Distribution Date:
Distribution Date Percentage
- -------------------------------------------- -------------------
March 2000 -February 2003...................... 0%
March 2003 - February 2005..................... 45%
March 2005 - February 2006..................... 80%
March 2006 - February 2007..................... 100%
March 2007 and thereafter...................... 300%
Class AV-1 Certificate: Any Certificate designated as a "Class AV-1
Certificate" on the face thereof, in the form of Exhibit A-11 hereto,
representing the right to distributions as set forth herein.
Class AV-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AV-1
Certificates.
Class AV-1 Interest Carryover Amount: For any Distribution Date, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class AV-1
Certificates is based upon the Available Funds Cap, the excess of (i) the
amount of interest the Class AV-1 Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
One-Month LIBOR and the applicable Class AV-1 Margin for such Distribution
Date, up to the Weighted Maximum Rate Cap, over (ii) the amount of interest
payable on the Class AV-1 Certificates at the Available Funds Cap for such
Distribution Date and (B) the Class AV-1 Interest Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(i),
together with interest thereon at the Class AV-1 Pass-Through Rate (without
giving effect to the Available Funds Cap).
Class AV-1 Current Interest: For any Distribution Date, the interest
accrued on the Class AV-1 Certificate Principal Balance during the related
Accrual Period at the Class AV-1 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class AV-1 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class AV-1 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
AV-1 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class AV-1 Pass-Through Rate for
the related Accrual Period.
Class AV-1 Margin: For any Distribution Date on or prior to the Optional
Termination Date for the Adjustable Rate Certificates, 0.300% per annum and,
for any Distribution Date after such Optional Termination Date, 0.600% per
annum.
Class AV-1 Pass-Through Rate: For the first Distribution Date, 6.1775%
per annum. For any Distribution Date thereafter, the least of (i) One-Month
LIBOR plus the Class AV-1 Margin, (ii) the Weighted Maximum Rate Cap and (iii)
the Available Funds Cap for such Distribution Date.
Class AV-2 Certificate: Any Certificate designated as a "Class AV-2
Certificate" on the face thereof, in the form of Exhibit A-12 hereto,
representing the right to distributions as set forth herein.
Class AV-2 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AV-2
Certificates.
Class AV-2 Interest Carryover Amount: For any Distribution Date, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class AV-2
Certificates is based upon the Available Funds Cap, the excess of (i) the
amount of interest the Class AV-2 Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
One-Month LIBOR and the applicable Class AV-2 Margin for such Distribution
Date, up to the Weighted Maximum Rate Cap, over (ii) the amount of interest
payable on the Class AV-2 Certificates at the Available Funds Cap for such
Distribution Date and (B) the Class AV-2 Interest Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(i),
together with interest thereon at the Class AV-2 Pass-Through Rate (without
giving effect to the Available Funds Cap).
Class AV-2 Current Interest: For any Distribution Date, the interest
accrued on the Class AV-2 Certificate Principal Balance during the related
Accrual Period at the Class AV-2 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class AV-2 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class AV-2 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
AV-2 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class AV-2 Pass-Through Rate for
the related Accrual Period.
Class AV-2 Margin: For any Distribution Date on or prior to the Optional
Termination Date for the Adjustable Rate Certificates, 0.260% per annum and,
for any Distribution Date after such Optional Termination Date, 0.520% per
annum.
Class AV-2 Pass-Through Rate: For the first Distribution Date, 6.1375%
per annum. For any Distribution Date thereafter, the least of (i) One-Month
LIBOR plus the Class AV-2 Margin, (ii) the Weighted Maximum Rate Cap and (iii)
the Available Funds Cap for such Distribution Date.
Class B-IO Certificates: Either or both of the Class BF-IO Certificates
and the Class BV-IO Certificates, as the context may require.
Class BF Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Fixed Rate
Mortgage Loans which have been applied to the reduction of the Certificate
Principal Balance of the Class BF Certificates.
Class BF Certificate: Any Certificate designated as a "Class BF
Certificate" on the face thereof, in the form of Exhibit A-9 hereto,
representing the right to distributions as set forth herein.
Class BF Certificate Principal Balance: As of any date of determination,
the Certificate Principal Balance of the Class BF Certificates.
Class BF Current Interest: For any Distribution Date, the interest
accrued on the Class BF Certificate Principal Balance during the related
Accrual Period at the Class BF Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class BF Interest Carryforward Amount: For any Distribution Date, the sum
of (i) the excess of (a) the Class BF Current Interest with respect to prior
Distribution Dates over (b) the amount actually distributed to the Class BF
Certificates with respect to interest and (ii) interest thereon (to the extent
permitted by applicable law) at the Class BF Pass-Through Rate for the related
Accrual Period.
Class BF Net Rate Carryover Amount: For any Distribution Date, the sum of
(A) if on such Distribution Date the Pass-Through Rate for the Class BF
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class BF Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class BF Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class BF Net Rate Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(h),
together with interest thereon at the Pass-Through Rate (without giving effect
to the Fixed Net Rate Cap).
Class BF Pass-Through Rate: For any Distribution Date, the lesser of (i)
8.60% per annum and (ii) the Fixed Net Rate Cap.
Class BF Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (i) the Class BF Applied Realized Loss Amount over (ii) the sum of
all distributions in reduction of the Class BF Applied Realized Loss Amount on
all previous Distribution Dates.
Class BF-IO Certificates: Any Certificate designated as a "Class BF-IO
Certificate" on the face thereof, in the form of Exhibit A-10 hereto,
representing ownership of the Class, Class T4-F1IO, Class T4-F2IO, Class
T4-F3IO, Class T4-F4IO Interests, Class T4-F5IO, Class T4-F6IO, Class T4-F7IO,
Class T4-F8IO, and Class T4-F9IO.
Class BF-IO Distributable Amount: With respect to any Distribution Date,
the sum of the amounts distributable on the Class, Class T4-F1IO, Class
T4-F2IO, Class T4-F3IO, Class T4-F4IO Interests, Class T4-F5IO, Class T4-F6IO,
Class T4-F7O, Class T4-F8IO, and Class T4-F9IO.
Class BV Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Adjustable Rate
Mortgage Loans which have been applied to the reduction of the Certificate
Principal Balance of the Class BV Certificates.
Class BV Certificate: Any Certificate designated as a "Class BV
Certificate" on the face thereof, in the form of Exhibit A-15 hereto,
representing the right to distributions as set forth herein.
Class BV Certificate Principal Balance: As of any date of determination,
the Certificate Principal Balance of the Class BV Certificates.
Class BV Current Interest: For any Distribution Date, the interest
accrued on the Class BV Certificate Principal Balance during the related
Accrual Period at the Class BV Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class BV Interest Carryforward Amount: For any Distribution Date, the sum
of (i) the excess of (a) the Class BV Current Interest with respect to prior
Distribution Dates over (b) the amount actually distributed to the Class BV
Certificates with respect to interest and (ii) interest thereon (to the extent
permitted by applicable law) at the Class BV Pass-Through Rate for the related
Accrual Period.
Class BV Interest Carryover Amount: For any Distribution Date, the sum of
(A) if on such Distribution Date the Pass-Through Rate for the Class BV
Certificates is based upon the Available Funds Cap, the excess of (i) the
amount of interest the Class BV Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
One-Month LIBOR and the applicable Class BV Margin for such Distribution Date,
up to the Weighted Maximum Rate Cap, over (ii) the amount of interest payable
on the Class BV Certificates at the Available Funds Cap for such Distribution
Date and (B) the Class BV Interest Carryover Amount for all previous
Distribution Dates not previously paid pursuant to Section 4.04(h), together
with interest thereon at the Class BV Pass-Through Rate (without giving effect
to the Available Funds Cap).
Class BV Margin: For any Distribution Date on or prior to the Optional
Termination Date for the Adjustable Rate Certificates, 2.100% per annum and,
for any Distribution Date after such Optional Termination Date, 3.150% per
annum.
Class BV Pass-Through Rate: For the first Distribution Date, 7.9775% per
annum. For any Distribution Date thereafter, the least of (i) One-Month LIBOR
plus the Class BV Margin, (ii) the Weighted Maximum Rate Cap and (iii) the
Available Funds Cap for such Distribution Date.
Class BV Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (i) the Class BV Applied Realized Loss Amount over (ii) the sum of
all distributions in reduction of the Class BV Applied Realized Loss Amounts
on all previous Distribution Dates.
Class BV-IO Certificates: Any Certificate designated as a "Class BV-IO
Certificate" on the face thereof, in the form of Exhibit A-16 hereto,
representing ownership of the Class T4-V1IO, Class T4-V2IO, Class T4-V3IO,
Class T4-V4IO and Class T4-V5IO Interests.
Class BV-IO Distributable Amount: With respect to any Distribution Date,
the aggregate of the amounts distributable on the Class T4-V1IO, Class
T4-V2IO, Class T4-V3IO, Class T4-V4IO and Class T4-V5IO Interests.
Class MF-1 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Fixed Rate
Mortgage Loans which have been applied to the reduction of the Certificate
Principal Balance of the Class MF-1 Certificates.
Class MF-1 Certificate: Any Certificate designated as a "Class MF-1
Certificate" on the face thereof, in the form of Exhibit A-7 hereto,
representing the right to distributions as set forth herein.
Class MF-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class MF-1
Certificates.
Class MF-1 Current Interest: For any Distribution Date, the interest
accrued on the Class MF-1 Certificate Principal Balance during the related
Accrual Period at the Class MF-1 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class MF-1 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class MF-1 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
MF-1 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class MF-1 Pass-Through Rate for
the related Accrual Period.
Class MF-1 Net Rate Carryover Amount: For any Distribution Date, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class MF-1
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class MF-1 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class MF-1 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class MF-1 Net Rate Carryover Amount for
all previous Distribution Dates not previously paid pursuant to Section
4.04(h), together with interest thereon at the Class MF-1 Pass-Through Rate
(without giving effect to the Fixed Net Rate Cap).
Class MF-1 Pass-Through Rate: The lesser of (i) 8.31% per annum and
(ii)the Fixed Net Rate Cap.
Class MF-1 Principal Distribution Amount: With respect to any
Distribution Date the excess of (i) the sum of (A) the Fixed Rate Class A
Certificate Principal Balance (after taking into account distributions of the
Fixed Rate Class A Principal Distribution Amount on such Distribution Date)
and (B) the Class MF-1 Certificate Principal Balance immediately prior to such
Distribution Date over (ii) the lesser of (A) 84.50% of the Stated Principal
Balance for such Distribution Date of the Fixed Rate Mortgage Loans and (B)
the Stated Principal Balance for such Distribution Date of the Fixed Rate
Mortgage Loans less the OC Floor for the Fixed Rate Mortgage Loans.
Class MF-1 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (i) the Class MF-1 Applied Realized Loss Amount over (ii) the sum of
all distributions in reduction of the Class MF-1 Applied Realized Loss Amount
on all previous Distribution Dates.
Class MF-2 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Fixed Rate
Mortgage Loans which have been applied to the reduction of the Certificate
Principal Balance of the Class MF-2 Certificates.
Class MF-2 Certificate: Any Certificate designated as a "Class MF-2
Certificate" on the face thereof, in the form of Exhibit A-8 hereto,
representing the right to distributions as set forth herein.
Class MF-2 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class MF-2
Certificates.
Class MF-2 Current Interest: For any Distribution Date, the interest
accrued on the Class MF-2 Certificate Principal Balance during the related
Accrual Period at the Class MF-2 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class MF-2 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class MF-2 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
MF-2 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class MF-2 Pass-Through Rate for
the related Accrual Period.
Class MF-2 Net Rate Carryover Amount: For any Distribution Date, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class MF-2
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class MF-2 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class MF-2 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class MF-2 Net Rate Carryover Amount for
all previous Distribution Dates not previously paid pursuant to Section
4.04(h), together with interest thereon at the Class MF-2 Pass-Through Rate
(without giving effect to the Fixed Net Rate Cap).
Class MF-2 Pass-Through Rate: For any Distribution Date, the lesser of
(i) 8.60% per annum and (ii) the Fixed Net Rate Cap.
Class MF-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the Fixed Rate Class A
Certificate Principal Balance (after taking into account distributions of the
Fixed Rate Class A Principal Distribution Amount on such Distribution Date),
(B) the Class MF-1 Certificate Principal Balance (after taking into account
distributions of the Class MF-1 Principal Distribution Amount on such
Distribution Date) and (C) the Class MF-2 Certificate Principal Balance
immediately prior to such Distribution Date over (ii) the lesser of (A) 90.50%
of the Stated Principal Balance for such Distribution Date of the Fixed Rate
Mortgage Loans and (B) the Stated Principal Balance for such Distribution Date
of the Fixed Rate Mortgage Loans less the OC Floor for the Fixed Rate Mortgage
Loans.
Class MF-2 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (i) the Class MF-2 Applied Realized Loss Amount over (ii) the sum of
all distributions in reduction of the Class MF-2 Applied Realized Loss Amount
on all previous Distribution Dates.
Class MV-1 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Realized Losses with respect to the Adjustable Rate Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance
of the Class MV-1 Certificates.
Class MV-1 Certificate: Any Certificate designated as a "Class MV-1
Certificate" on the face thereof, in the form of Exhibit A-13 hereto,
representing the right to distributions as set forth herein.
Class MV-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class MV-1
Certificates.
Class MV-1 Current Interest: For any Distribution Date, the interest
accrued on the Class MV Certificate Principal Balance during the related
Accrual Period at the Class MV Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class MV-1 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class MV-1 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
MV-1 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class MV-1 Pass-Through Rate for
the related Accrual Period.
Class MV-1 Interest Carryover Amount: For any Distribution Date, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class MV-1
Certificates is based upon the Available Funds Cap, the excess of (i) the
amount of interest the Class MV-1 Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
One-Month LIBOR and the applicable Class MV-1 Margin for such Distribution
Date, up to the Weighted Maximum Rate Cap, over (ii) the amount of interest
payable on the Class MV-1 Certificates at the Available Funds Cap for such
Distribution Date and (B) the Class MV-1 Interest Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(i),
together with interest thereon at the Class MV-1 Pass-Through Rate (without
giving effect to the Available Funds Cap).
Class MV-1 Margin: For any Distribution Date on or prior to the Optional
Termination Date for the Adjustable Rate Certificates, 0.470% per annum and,
for any Distribution Date after such Optional Termination Date, 0.705% per
annum.
Class MV-1 Pass-Through Rate: For the first Distribution Date, 6.3475%
per annum. For any Distribution Date thereafter, the least of (i) One-Month
LIBOR plus the Class MV-1 Margin, (ii) the Weighted Maximum Rate Cap and (iii)
the Available Funds Cap for such Distribution Date.
Class MV-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the Adjustable Rate Class
A Certificate Principal Balance (after taking into account distributions of
the Adjustable Rate Class A Principal Distribution Amount on such Distribution
Date) and (B) the Class MV-1 Certificate Principal Balance immediately prior
to such Distribution Date over (ii) the lesser of (A) 81.50% of the Stated
Principal Balance for such Distribution Date of the Adjustable Rate Mortgage
Loans and (B) the Stated Principal Balance for such Distribution Date of the
Adjustable Rate Mortgage Loans less the OC Floor for the Adjustable Rate
Mortgage Loans.
Class MV-1 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (i) the Class MV-1 Applied Realized Loss Amount over (ii) the sum of
all distributions in reduction of the Class MV-1 Applied Realized Loss Amounts
on all previous Distribution Dates.
Class MV-2 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Realized Losses with respect to the Adjustable Rate Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance
of the Class MV-2 Certificates.
Class MV-2 Certificate: Any Certificate designated as a "Class MV-2
Certificate" on the face thereof, in the form of Exhibit A-14 hereto,
representing the right to distributions as set forth herein.
Class MV-2 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class MV-2
Certificates.
Class MV-2 Current Interest: For any Distribution Date, the interest
accrued on the Class MV-2 Certificate Principal Balance during the related
Accrual Period at the Class MV-2 Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class MV-2 Interest Carryforward Amount: For any Distribution Date, the
sum of (i) the excess of (a) the Class MV-2 Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
MV-2 Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class MV-2 Pass-Through Rate for
the related Accrual Period.
Class MV-2 Interest Carryover Amount: For any Distribution Date, the sum
of (A) if on such Distribution Date the Pass-Through Rate for the Class MV-2
Certificates is based upon the Available Funds Cap, the excess of (i) the
amount of interest the Class MV-2 Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
One-Month LIBOR and the applicable Class MV-2 Margin for such Distribution
Date, up to the Weighted Maximum Rate Cap, over (ii) the amount of interest
payable on the Class MV-2 Certificates at the Available Funds Cap for such
Distribution Date and (B) the Class MV-2 Interest Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(i),
together with interest thereon at the Class MV-2 Pass-Through Rate (without
giving effect tot he Available Funds Cap).
Class MV-2 Margin: For any Distribution Date on or prior to the Optional
Termination Date for the Adjustable Rate Certificates, 0.850% per annum and,
for any Distribution Date after such Optional Termination Date, 1.275% per
annum.
Class MV-2 Pass-Through Rate: For the first Distribution Date, 7.7275%
per annum. For any Distribution Date thereafter, the least of (i) One-Month
LIBOR plus the Class MV-2 Margin, (ii) the Weighted Maximum Rate Cap and (iii)
the Available Funds Cap for such Distribution Date.
Class MV-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the Adjustable Rate Class
A Certificate Principal Balance (after taking into account distributions of
the Adjustable Rate Class A Principal Distribution Amount on such Distribution
Date), (B) the Class MV-1 Certificate Principal Balance (after taking into
account distributions of the Class MV-1 Principal Distribution Amount on such
Distribution Date) and (C) the Class MV-2 Certificate Principal Balance
immediately prior to such Distribution Date over (ii) the lesser of (A) 89.00%
of the Stated Principal Balance for such Distribution Date of the Adjustable
Rate Mortgage Loans and (B) the Stated Principal Balance for such Distribution
Date of the Adjustable Rate Mortgage Loans less the OC Floor for the
Adjustable Rate Mortgage Loans.
Class MV-2 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (i) the Class MV-2 Applied Realized Loss Amount over (ii) the sum of
all distributions in reduction of the Class MV-2 Applied Realized Loss Amounts
on all previous Distribution Dates.
Class R Certificate: Any one of the Class R Certificates executed and
authenticated by the Trustee in substantially the form set forth in Exhibits D
and E hereto, and evidencing ownership of the Class BTF, Class R-BTV, Class
R-1, Class R-2, Class R-3, and Class R-4 Interests.
Closing Date: February 28, 2000.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Combined Loan-to-Value Ratio: The fraction, expressed as a percentage,
the numerator of which is the sum of (x) the original principal balance of the
related Mortgage Loan and (y) the outstanding principal balance at the date of
origination of the Mortgage Loan of any senior mortgage loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
Compensating Interest: With respect to any Mortgage Loan, an amount equal
to one-half of the Servicing Fee, to be applied to the interest portion of a
Prepayment Interest Shortfall on such Mortgage Loan pursuant to Section 4.02
hereof.
Corresponding Certificate: With respect to each REMIC 4 Regular Interest,
the Certificate that evidences ownership of that REMIC 4 Regular Interest.
Corporate Trust Office: The designated office of the Trustee in the State
of New York where at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at 101 Barclay Street, 12E, New
York, New York 10286 (Attention: Corporate Trust MBS Administration),
telephone: (212) 815-2793, facsimile: (212) 815-5309.
Current Interest: With respect to (i) the Class AF-1 Certificates, the
Class AF-1 Current Interest, (ii) the Class AF-2 Certificates, the Class AF-2
Current Interest, (iii) the Class AF-3 Certificates, the Class AF-3 Current
Interest, (iv) the Class AF-4 Certificates, the Class AF-4 Current Interest,
(v) the Class AF-5 Certificates, the Class AF-5 Current Interest, (vi) the
Class AF-6 Certificates, the Class AF-6 Current Interest, (vii) the Class MF-1
Certificates, the Class MF-1 Current Interest, (viii) the Class MF-2
Certificates, the Class MF-2 Current Interest, (ix) the Class BF Certificates,
the Class BF Current Interest, (x) the Class AV-1 Certificates, the Class AV-1
Current Interest, (xi) the Class AV-2 Certificates, the Class AV-2 Current
Interest, (xii) the Class MV-1 Certificates, the Class MV-1 Current Interest,
(xiii) the Class MV-2 Certificates, the Class MV-2 Current Interest, and (xiv)
the Class BV Certificates, the Class BV Current Interest.
Cut-off Date: In the case of any Initial Mortgage Loan, the later of (x)
February 1, 2000 and (y) the date of origination of such Mortgage Loan (the
"Initial Cut-off Date"), and in the case of any Subsequent Mortgage Loan, the
date of origination of such Mortgage Loan (unless such Subsequent Mortgage
Loan was originated prior to February 28, 2000, in which case March 1, 2000)
(the "Subsequent Cut-off Date"). When used with respect to any Mortgage Loans
"the Cut-off Date" shall mean the related Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the calendar day
immediately preceding the Cut-off Date after application of all payments of
principal due prior to the Cut-off Date, whether or not received, and all
Principal Prepayments received prior to the Cut-off Date, but without giving
effect to any installments of principal received in respect of Due Dates on
and after the Cut-off Date.
DCR: Duff & Phelps Credit Rating Company.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by
a court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan that became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or any other reduction that results in a permanent forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under such Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any
Scheduled Payment that results in a permanent forgiveness of principal, which
valuation or reduction results from an order of such court that is final and
non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificates: As defined in Section 5.06.
Delay Delivery Mortgage Loans: (i) The Initial Mortgage Loans identified
on the schedule of Mortgage Loans hereto set forth on Exhibit F-2 hereof for
which all or a portion of a related Mortgage File is not delivered to the
Trustee on or prior to the Closing Date, and (ii) all Subsequent Mortgage
Loans. The Depositor shall deliver (or cause delivery of) the Mortgage Files
to the Trustee: (A) with respect to at least 50% of the Initial Mortgage
Loans, not later than the Closing Date, (B) with respect to at least an
additional 40% of the Initial Mortgage Loans, not later than 21 days after the
Closing Date, and not later than twenty one days after the relevant Subsequent
Transfer Date with respect to at least 90% of the Subsequent Mortgage Loans
conveyed on such Subsequent Transfer Date, and (C) , with respect to the
remaining 10% of the Mortgage Loans, not later than thirty days after the
Closing Date, and not later than thirty days after the relevant Subsequent
Transfer Date with respect to the remaining 10% of the Subsequent Mortgage
Loans conveyed on the related Subsequent Transfer Date. To the extent that
Countrywide Home Loans, Inc. shall be in possession of any Mortgage Files with
respect to any Delay Delivery Loan, until delivery to of such Mortgage File to
the Trustee as provided in Section 2.01, Countrywide Home Loans, Inc. shall
hold such files as Master Servicer hereunder, as agent and in trust for the
Trustee.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Replacement Mortgage Loan.
Delinquent: A Mortgage Loan is "delinquent" if any payment due thereon is
not made pursuant to the terms of such Mortgage Loan by the close of business
on the day such payment is scheduled to be due. A Mortgage Loan is "30 days
delinquent" if such payment has not been received by the close of business on
the corresponding day of the month immediately succeeding the month in which
such payment was due, or, if there is no such corresponding day (e.g., as when
a 30-day month follows a 31-day month in which a payment was due on the 31st
day of such month), then on the last day of such immediately succeeding month.
Similarly for "60 days delinquent," "90 days delinquent" and so on.
Denomination: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Principal Balance of this Certificate".
Depositor: CWABS, Inc., a Delaware corporation, or its successor in
interest.
Depository: The initial Depository shall be The Depository Trust Company
("DTC"), the nominee of which 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(a)(5) of the
Uniform Commercial Code of the State of New York.
Depository Agreement: With respect to the Class of Book-Entry
Certificates, the agreement among the Depositor, the Trustee and the initial
Depository, dated as of the Closing Date, substantially in the form of Exhibit
O.
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: With respect to any Distribution Date, the 15th day
of the month of such Distribution Date or, if such 15th day is not a Business
Day, the immediately preceding Business Day.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New
York, in trust for registered holders of CWABS, Inc., Asset-Backed
Certificates, Series 2000-1". Funds in the Distribution Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in
this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 1:00 p.m.
Pacific time on the Business Day immediately preceding such Distribution Date.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if such 25th day is not a Business Day, the
next succeeding Business Day, commencing in March 2000.
Due Date: With respect to any Distribution Date, the first day of the
month in which the related Distribution Date occurs.
Due Period: With respect to any Distribution Date, the period beginning
on the second day of the calendar month preceding the calendar month in which
such Distribution Date occurs and ending on the Due Date in the month in which
such 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
long-term unsecured debt obligations and 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 debt obligations of such
holding company, if Moody's is not a Rating Agency) are rated by each Rating
Agency (or, if DCR does not provide such a rating, by S&P in lieu of DCR) in
one of its two highest long-term and its highest short-term rating categories
respectively, at the time any amounts are held on deposit therein, or (ii) an
account or accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the FDIC) and
the uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating
Agency, the Certificateholders have a claim with respect to the funds in such
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii) a
trust account or accounts maintained with the corporate trust department of a
federal or state chartered depository institution or trust company having
capital and surplus of not less than $50,000,000, acting in its fiduciary
capacity or (iv) any other account acceptable to the Rating Agencies. Eligible
Accounts may bear interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificate: Each of the Class MF-1, Class MF-2, Class
BF, Class MV-1, Class MV-2, Class BV, Class B-IO and Class R Certificates.
Event of Default: As defined in Section 7.01 hereof.
Excess Proceeds: With respect to any Liquidated Loan, any Liquidation
Proceeds that are in excess of the sum of (i) the unpaid principal balance of
such Liquidated Loan as of the date of such liquidation plus (ii) interest at
the Mortgage Rate from the Due Date as to which interest was last paid or
advanced to Certificateholders (and not reimbursed to the Master Servicer) up
to the Due Date in the month in which such Liquidation Proceeds are required
to be distributed on the Stated Principal Balance of such Liquidated Loan
outstanding during each Due Period as to which such interest was not paid or
advanced.
Extra Master Servicing Fee: The Extra Master Servicing Fee payable
pursuant to Sections 4.07 hereof.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement Act
of 1989.
Fixed Net Rate: The weighted average Net Mortgage Rate for Fixed Rate
Mortgage Loans. The Fixed Net Rate in respect of the first Distribution Date
shall be 9.977%.
Fixed Net Rate Cap: For any Distribution Date with respect to the Fixed
Rate Certificates, a per annum rate equal to the weighted average Net Mortgage
Rate on the Fixed Rate Mortgage Loans for such Distribution Date as in effect
on the related Due Date.
Fixed Net Rate Carryover: With respect to any Distribution Date, an
amount equal to the sum of (i) the Class AF-1 Net Rate Carryover Amount for
such Distribution Date (if any), (ii) the Class AF-2 Net Rate Carryover Amount
for such Distribution Date (if any), (iii) the Class AF-3 Net Rate Carryover
Amount for such Distribution Date (if any), (iv) the Class AF-4 Net Rate
Carryover Amount for such Distribution Date (if any), (v) the Class AF-5 Net
Rate Carryover Amount for such Distribution Date (if any), (vi) the Class AF-6
Net Rate Carryover Amount for such Distribution Date (if any), (vii) the Class
MF-1 Net Rate Carryover Amount for such Distribution Date (if any), (viii) the
Class MF-2 Net Rate Carryover Amount for such Distribution Date (if any) and
(ix) the Class BF Net Rate Carryover Amount for such Distribution Date (if
any); provided that when the term Fixed Net Rate Carryover is used with
respect to one Class of Fixed Rate Certificates, it shall mean such carryover
amount listed in clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) or
(ix) as applicable, with the same Class designation.
Fixed Rate Carryover Reserve Fund: The separate Eligible Account created
and initially maintained by the Trustee pursuant to Section 4.08 in the name
of the Trustee for the benefit of the Fixed Rate Certificateholders and
designated "The Bank of New York in trust for registered holders of CWABS,
Inc., Asset-Backed Certificates, Series 2000-1". Funds in the Fixed Rate
Carryover Reserve Fund shall be held in trust for the Fixed Rate
Certificateholders for the uses and purposes set forth in this Agreement.
Fixed Rate Certificate Carryover: With respect to any Distribution Date,
an amount equal to the sum of (i) the Class AF-1 Interest Carryover Amount for
such Distribution Date (if any), (ii) the Class AF-2 Interest Carryover Amount
for such Distribution Date (if any), (iii) the Class AF-3 Interest Carryover
Amount for such Distribution Date (if any), (iv) the Class AF-4 Interest
Carryover Amount for such Distribution Date (if any), (v) the Class AF-5
Interest Carryover Amount for such Distribution Date (if any), (vi) the Class
AF-6 Interest Carryover Amount for such Distribution Date (if any), (vii) the
Class AF-7 Interest Carryover Amount for such Distribution Date (if any),
(viii) the Class MF-1 Interest Carryover Amount for such Distribution Date (if
any), (ix) the Class MF-2 Interest Carryover Amount for such Distribution Date
(if any) and (x) the Class BF Interest Carryover Amount for such Distribution
Date (if any); provided that when the term Fixed Rate Certificate Carryover is
used with respect to one Class of Fixed Rate Certificates, it shall mean such
carryover amount listed in clauses (i), (ii), (iii), (iv), (v), (vi), (vii),
(viii), (ix) or (x) as applicable, with the same Class designation.
Fixed Rate Certificateholder: A holder of a Fixed Rate Certificate.
Fixed Rate Certificate Principal Balance: The sum of the Class AF-1
Certificate Principal Balance, the Class AF-2 Certificate Principal Balance,
the Class AF-3 Certificate Principal Balance, the Class AF-4 Certificate
Principal Balance, the Class AF-5 Certificate Principal Balance, the Class
AF-6 Certificate Principal Balance, the Class MF-1 Certificate Principal
Balance, the Class MF-2 Certificate Principal Balance and the Class BF
Certificate Principal Balance.
Fixed Rate Certificates: Any of the Class AF-1, Class AF-2, Class AF-3,
Class AF-4, Class AF-5, Class AF-6, Class MF-1, Class MF-2, Class BF and/or
Class BF-IO Certificates.
Fixed Rate Class A Certificate Principal Balance: The sum of the Class
AF-1 Certificate Principal Balance, the Class AF-2 Certificate Principal
Balance, the Class AF-3 Certificate Principal Balance, the Class AF-4
Certificate Principal Balance, the Class AF-5 Certificate Principal Balance
and the Class AF-6 Certificate Principal Balance.
Fixed Rate Class A Certificates: Any of the Class AF-1, Class AF-2, Class
AF-3, Class AF-4, Class AF-5 and/or Class AF-6 Certificates.
Fixed Rate Class A Current Interest: Any one or more of the following (as
the context requires): Class AF-1 Current Interest, Class AF-2 Current
Interest, Class AF-3 Current Interest, Class AF-4 Current Interest, Class AF-5
Current Interest and/or Class AF-6 Current Interest.
Fixed Rate Class A Interest Carryforward Amount: Any one or more of the
following (as the context requires): Class AF-1 Interest Carryforward Amount,
Class AF-2 Interest Carryforward Amount, Class AF-3 Interest Carryforward
Amount, Class AF-4 Interest Carryforward Amount, Class AF-5 Interest
Carryforward Amount and/or Class AF-6 Interest Carryforward Amount.
Fixed Rate Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (A) the Fixed Rate Class A Certificate
Principal Balance immediately prior to such Distribution Date over (B) the
lesser of (I) 78.50% of the Stated Principal Balance for such Distribution
Date of the Fixed Rate Mortgage Loans and (II) the Stated Principal Balance
for such Distribution Date of the Fixed Rate Mortgage Loans less the OC Floor
for the Fixed Rate Mortgage Loans.
Fixed Rate Class B Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the Fixed Rate Class A
Certificate Principal Balance (after taking into account distribution of the
Fixed Rate Class A Principal Distribution Amount on such Distribution Date),
(B) the Class MF-1 Certificate Principal Balance (after taking into account
distribution of the Class MF-1 Distribution Amount on such Distribution Date),
(C) the Class MF-2 Certificate Principal Balance (after taking into account
distribution of the Class MF-2 Principal Distribution Amount for such
Distribution Date), and (D) the Class BF Certificate Principal Balance
immediately prior to such Distribution Date over (ii) the lesser of (A) 96.50%
of the Stated Principal Balance for such Distribution Date of the Fixed Rate
Mortgage Loans and (B) the Stated Principal Balance for such Distribution Date
of the Fixed Rate Mortgage Loans less the OC Floor for the Fixed Rate Mortgage
Loans; provided that after the Fixed Rate Class A Certificate Principal
Balance, the Class MF-1 Certificate Principal Balance and the Class MF-2
Certificate Principal Balance have been reduced to zero, the Fixed Rate Class
B Principal Distribution Amount for such Distribution Date will equal 100% of
the Fixed Rate Principal Distribution Amount for such Distribution Date.
Fixed Rate Credit Comeback Excess Amount: With respect to Fixed Rate
Credit Comeback Loans and any Master Servicer Advance Date, the portion of the
sum of the following (without duplication) attributable to the excess, if any,
of the actual mortgage rate on a Fixed Rate Credit Comeback Loan and the
Mortgage Rate on such Fixed Rate Credit Comeback Loan: (i) all scheduled
interest collected during the related Due Period with respect to the Fixed
Rate Credit Comeback Loans, (ii) all Advances relating to interest with
respect to the Fixed Rate Credit Comeback Loans, (iii) all Compensating
Interest with respect to the Fixed Rate Credit Comeback Loans and (iv)
Liquidation Proceeds with respect to the Fixed Rate Credit Comeback Loans
collected during the related Due Period (to the extent such Liquidation
Proceeds relate to interest), less all Nonrecoverable Advances relating to
interest reimbursed during the related Due Period.
Fixed Rate Credit Comeback Loan: Any Fixed Rate Mortgage Loan for which
the related Mortgage Rate is subject to reduction for good payment history of
Scheduled Payments by the related Mortgagor.
Fixed Rate Excess Cashflow: With respect to any Distribution Date, the
aggregate amounts constituting Excess Cashflow for such Distribution Date
pursuant to Sections 4.04(a)(v), 4.04(c)(i)(E) and 4.04(c)(ii)(E), that are
attributable to the Fixed Rate Mortgage Loans.
Fixed Rate Extra Principal Distribution Amount: With respect to any
Distribution Date, the lesser of (i) the excess, if any, of the Fixed Rate
Specified Overcollateralization Amount for such Distribution Date over the
Fixed Rate Overcollateralization Amount for such Distribution Date (after
giving effect to distributions of principal on the Fixed Rate Certificates
other than any Fixed Rate Extra Principal Distribution Amount) and (ii) the
Fixed Rate Excess Cashflow for such Distribution Date available therefore in
the priority set forth in Section 4.04.
Fixed Rate Interest Funds: With respect to Fixed Rate Mortgage Loans and
any Master Servicer Advance Date, the sum, without duplication, of (i) all
scheduled interest collected during the related Due Period with respect to the
Fixed Rate Mortgage Loans less the Servicing Fee, (ii) all Advances relating
to interest with respect to the Fixed Rate Mortgage Loans, (iii) all
Compensating Interest with respect to the Fixed Rate Mortgage Loans and (iv)
Liquidation Proceeds with respect to the Fixed Rate Mortgage Loans collected
during the related Due Period (to the extent such Liquidation Proceeds relate
to interest), less (1) all Nonrecoverable Advances relating to interest
reimbursed during the related Due Period (2) the Fixed Rate Credit Comeback
Excess Amount.
Fixed Rate Mortgage Loans: The group of Mortgage Loans identified in the
related Mortgage Loan Schedule as having a Mortgage Rate which is fixed for
the life of the related Mortgage and any Fixed Rate Credit Comeback Loans,
including in each case any Mortgage Loans delivered in replacement thereof.
Fixed Rate Overcollateralization Amount: With respect to any Distribution
Date, the excess, if any, the sum of the Stated Principal Balance for such
Distribution Date of the Fixed Rate Mortgage Loans plus the amount (if any) in
the Pre-Funding Account allocated to purchase Subsequent Mortgage Loans to be
included in the Loan Group of Fixed Rate Mortgage Loans, over the Certificate
Principal Balances of all Fixed Rate Certificates on such date (after taking
into account the payment of principal other than any Fixed Rate Extra
Principal Distribution Amount, on such Certificates on such Distribution
Date).
Fixed Rate Principal Distribution Amount: With respect to each
Distribution Date, the sum of (i) the Fixed Rate Principal Funds for such
Distribution Date, (ii) any Fixed Rate Extra Principal Distribution Amount for
such Distribution Date and (iii) for the April 2000 Distribution Date, any
amounts remaining in the Pre-Funding Account after the end of the Funding
Period that were allocated to purchase Subsequent Mortgage Loans to be
included in the Loan Group of Fixed Rate Mortgage Loans (net of any investment
income herefrom).
Fixed Rate Principal Funds: With respect to the Fixed Rate Mortgage
Loans, the sum, without duplication, of (i) the scheduled principal collected
during the related Due Period or Advanced on or before the related Master
Servicer Advance Date, (ii) prepayments collected during the related
Prepayment Period, (iii) the Stated Principal Balance of each Fixed Rate
Mortgage Loan that was repurchased by the Seller or the Master Servicer for
the related Determination Date, (iv) the aggregate of all Substitution
Adjustment Amounts for the related Determination Date in connection with the
substitution of Fixed Rate Mortgage Loans pursuant to Section 2.03(c) and (v)
all Liquidation Proceeds collected during the related Due Period (to the
extent such Liquidation Proceeds relate to principal) less all Nonrecoverable
Advances relating to principal reimbursed during the related Due Period.
Fixed Rate Remainder Excess Cashflow: With respect to any Distribution
Date, the Fixed Rate Excess Cashflow for such Distribution Date remaining
after the applications set forth in Section 4.04(f)(i) through (vii).
Fixed Rate Specified Overcollateralization Amount: Prior to the Fixed
Rate Stepdown Date, 1.75% of the sum of the Stated Principal Balance as of the
Initial Cut-off Date of the Fixed Rate Mortgage Loans that are Initial
Mortgage Loans plus the amount of the Pre-Funded Amount originally allocated
to purchase Subsequent Mortgage Loans to be included in the Loan Group of
Fixed Rate Mortgage Loans and on and after the Fixed Rate Stepdown Date, 3.50%
of the current Stated Principal Balance of the Fixed Rate Mortgage Loans for
the related Distribution Date, subject to a minimum amount equal to the
applicable OC Floor; provided that, if on any Distribution Date a Fixed Rate
Trigger Event is in effect, the Fixed Rate Specified Overcollateralization
Amount shall not be reduced to the applicable percentage of the then current
Stated Principal Balance of the Fixed Rate Mortgage Loans until the
Distribution Date on which a Fixed Rate Trigger Event no longer exists.
Fixed Rate Standard Rate: The lesser of (i) the greatest of (A) 8.60% and
(B) the Class A-5 Pass-Through Rate and (C) One-Month LIBOR plus the Class
AF-1 Margin and (ii) the Fixed Net Rate.
Fixed Rate Stepdown Date: With respect to the Fixed Rate Certificates,
the later to occur of (i) the Distribution Date in March 2003 or (ii) the
first Distribution Date on which the Fixed Rate Class A Certificate Principal
Balance is less than or equal to 78.50% of the Stated Principal Balances for
such Distribution Date of the Fixed Rate Mortgage Loans.
Fixed Rate Subordinated Certificates: The Class MF-1, Class MF-2 and
Class BF Certificates.
Fixed Rate Trigger Event: With respect to any Distribution Date after the
Fixed Rate Stepdown Date, (1) the product of (i) two times (ii) the quotient
(expressed as a percentage)of (A) the numerator of which is the aggregate
Stated Principal Balances for such Distribution Date of all Fixed Rate
Mortgage Loans 60 or more days delinquent as of the preceding Due Date
(including Fixed Rate Mortgage Loans in foreclosure and REO Properties) (B)
the denominator of which is the aggregate Stated Principal Balances for such
Distribution Date of all Fixed Rate Mortgage Loans (2) equals or exceeds the
Required Percentage.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Funding Period: The period from and after the Closing Date to and
including March 31, 2000.
Gross Margin: The percentage set forth in the related Mortgage Note for
the Adjustable Rate Mortgage Loans to be added to the Index for use in
determining the Mortgage Rate on each Adjustment Date, and which is set forth
in the Mortgage Loan Schedule for the Adjustable Rate Mortgage Loans.
Index: As to any Adjustable Rate Mortgage Loan on any Adjustment Date
related thereto, the index for the adjustment of the Mortgage Rate set forth
as such in the related Mortgage Note, such index in general being either (i)
the average of the London interbank offered rates for six-month U.S. dollar
deposits in the London market, as set forth in The Wall Street Journal, or, if
the Index ceases to be published in The Wall Street Journal or becomes
unavailable for any reason, then the Index shall be a new index selected by
the Trustee, as holder of the Mortgage Note, based on comparable information
or (ii) is the weekly average yield on United States Treasury securities
adjusted to a constant maturity of one year, as made available by the Board of
Governors of the Federal Reserve System, in the case of both (i) and (ii)
above as most recently announced as of a date 45 days prior to such Adjustment
Date. The Master Servicer hereby agrees that should the Index become
unavailable, the Master Servicer, on behalf of the Trustee, will select a new
index that is based upon comparable information.
Initial Adjustment Date: As to any Adjustable Rate Mortgage Loan, the
first Adjustment Date following the origination of such Mortgage Loan.
Initial Certificate Account Deposit: An amount equal to the aggregate of
all amounts in respect of (i) principal of the Initial Mortgage Loans due on
or after the Initial Cut-off Date and received by the Master Servicer before
the Closing Date and not applied in computing the Cut-off Date Principal
Balance thereof and (ii) interest on the Initial Mortgage Loans due on and
after the Initial Cut-off Date and received by the Master Servicer before the
Closing Date.
Initial Certificate Principal Balance: With respect to any Certificate,
the Certificate Principal Balance of such Certificate or any predecessor
Certificate on the Closing Date.
Initial Cut-off Date: As defined in the definition of Cut-off Date.
Initial Mortgage Loan: A Mortgage Loan conveyed to the Trust Fund on the
Closing Date pursuant to this Agreement as identified on the Mortgage Loan
Schedule delivered to the Trustee on the Closing Date.
Initial Mortgage Rate: As to each Mortgage Loan, the Mortgage Rate in
effect prior to the Initial Adjustment Date.
Insurance Policy: With respect to any Mortgage Loan included in the Trust
Fund, any insurance policy, including all riders and endorsements thereto in
effect with respect to such Mortgage Loan, including any replacement policy or
policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Insurance Policy or any other insurance policy covering a
Mortgage Loan, to the extent such proceeds are payable to the mortgagee under
the Mortgage, the Master Servicer or the trustee under the deed of trust and
are not applied to the restoration of the related Mortgaged Property or
released to the Mortgagor in accordance with the procedures that the Master
Servicer would follow in servicing mortgage loans held for its own account, in
each case other than any amount included in such Insurance Proceeds in respect
of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Carryforward Amount: With respect to (i) the Class AF-1
Certificates, the Class AF-1 Interest Carryforward Amount, (ii) the Class AF-2
Certificates, the Class AF-2 Interest Carryforward Amount, (iii) the Class
AF-3 Certificates, the Class AF-3 Interest Carryforward Amount, (iv) the Class
AF-4 Certificates, the Class AF-4 Interest Carryforward Amount, (v) the Class
AF-5 Certificates, the Class AF-5 Interest Carryforward Amount, (vi) the Class
AF-6 Certificates, the Class AF-6 Interest Carryforward Amount, (vii) the
Class MF-1 Certificates, the Class MF-1 Interest Carryforward Amount, (viii)
the Class MF-2 Certificates, the Class MF-2 Interest Carryforward Amount, (ix)
the Class BF Certificates, the Class BF Interest Carryforward Amount, (x) the
Class AV-1 Certificates, the Class AV-1 Interest Carryforward Amount, (xi) the
Class AV-2 Certificates, the Class AV-2 Interest Carryforward Amount, (xii)
the Class MV-1 Certificates, the Class MV-1 Interest Carryforward Amount,
(xiii) the Class MV-2 Certificates, the Class MV-2 Interest Carryforward
Amount, and (xiv) the Class BV Certificates, the Class BV Interest
Carryforward Amount.
Interest Determination Date: With respect to the Adjustable Rate
Certificates and the Class AF-1 Certificates for the first Accrual Period,
February 24, 2000. With respect to the Adjustable Rate Certificates and any
Accrual Period thereafter, the second LIBOR Business Day preceding the
commencement of such Accrual Period.
Interest Rate Cap Agreement: An interest rate cap contract referred to in
the last paragraph of Section 8.11 and all related provisions of this
Agreement.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan in the Trust
Fund having the latest scheduled maturity date as of the Cut-off Date.
LIBOR Business Day: Any day on which banks in the City of London, England
and New York City, U.S.A. are open and conducting transactions in foreign
currency and exchange.
Liquidated Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan that has been liquidated through deed-in-lieu of foreclosure,
foreclosure sale, trustee's sale or other realization as provided by
applicable law governing the real property subject to the related Mortgage and
any security agreements and as to which the Master Servicer has certified (in
accordance with Section 3.12) in the related Prepayment Period that it has
received all amounts it expects to receive in connection with such
liquidation.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of Mortgage Loans, whether
through trustee's sale, foreclosure sale or otherwise or amounts received in
connection with any condemnation or partial release of a Mortgaged Property
and any other proceeds received in connection with an REO Property, less the
sum of related unreimbursed Advances, Servicing Fees and Servicing Advances.
Loan Group: Either of the Fixed Rate Mortgage Loans or the Adjustable
Rate Mortgage Loans.
Loan Number and Borrower Identification Mortgage Loan Schedule: With
respect to any Subsequent Transfer Date, the Loan Number and Borrower
Identification Mortgage Loan Schedule delivered in connection with such
Subsequent Transfer Date pursuant to Section 2.01(f). Each Loan Number and
Borrower Identification Mortgage Loan Schedule shall contain the information
specified in the definition of "Mortgage Loan Schedule" with respect to the
Subsequent Mortgage Mortgage Loans conveyed on such Subsequent Transfer Date,
and each Loan Number and Borrower Identification Mortgage Loan Schedule shall
be deemed to be included in the Mortgage Loan Schedule.
Loan Subgroup: Either of Loan Subgroup 1A or Loan Subgroup 2A (as the
context requires).
Loan Subgroup 1A: The subgroup of Adjustable Rate Mortgage Loans
identified in the Mortgage Loan Schedule (as may be revised from time to time)
as included Loan Subgroup 1A, including any Mortgage Loans delivered in
replacement thereof.
Loan Subgroup 1A Percentage: With respect to (i) any Distribution Date
prior to the Adjustable Rate Stepdown Date or as to which an Adjustable Rate
Trigger Event is in effect, the percentage equivalent of a fraction, the
numerator of which is the Principal Funds for Loan Subgroup 1A with respect to
such Distribution Date and the denominator of which is the Adjustable Rate
Principal Funds with respect to such Distribution Date and (ii) any
Distribution Date on or after the Adjustable Rate Stepdown Date and so long as
an Adjustable Rate Trigger Event is in not effect, the percentage equivalent
of a fraction, the numerator of which is the Certificate Principal Balance of
the Class AV-1 Certificates immediately prior to such Distribution Date the
denominator of which is the sum of the Certificate Principal Balances of each
Class of Adjustable Rate Class A Certificates immediately prior to such
Distribution Date.
Loan Subgroup 2A: The subgroup of Adjustable Rate Mortgage Loans
identified in the Mortgage Loan Schedule (as may be amended from time to time)
as included in Loan Subgroup 2A, including any Mortgage Loans delivered in
replacement thereof.
Loan Subgroup 2A Percentage: With respect to any Distribution Date, 100%
minus the Loan Subgroup 1A Percentage for such Distribution Date.
Loan-to-Value Ratio: The fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Mortgage
Loan and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Master Servicer Advance Date: As to any Distribution Date, 1:00 p.m.
Pacific time on the Business Day immediately preceding such Distribution Date.
Master Servicer: Countrywide Home Loans, Inc., a New York corporation,
and its successors and assigns, in its capacity as master servicer hereunder.
Maximum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, the maximum rate of interest set forth as such in the related Mortgage
Note.
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(R)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.
Minimum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, the minimum rate of interest set forth as such in the related Mortgage
Note.
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 Statement: The statement delivered to the Certificateholders
pursuant to Section 4.05.
Moody's: Moody's Investors Service, Inc.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest, or creating a second lien
on or second priority ownership interest, as applicable, in an estate in fee
simple in real 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
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loans: Such of the Fixed Rate Mortgage Loans and Adjustable Rate
Mortgage Loans transferred and assigned to the Trustee pursuant to the
provisions hereof and any Subsequent Transfer Agreement as from time to time
are held as a part of the Trust Fund (including any REO Property), the
mortgage loans so held being identified in the Mortgage Loan Schedule,
notwithstanding foreclosure or other acquisition of title of the related
Mortgaged Property. Any mortgage loan that was intended by the parties hereto
to be transferred to the Trust Fund as indicated by such Mortgage Loan
Schedule which is in fact not so transferred for any reason including, without
limitation, a breach of the representation contained in Section 2.03(b)(v)
hereof, shall continue to be a Mortgage Loan hereunder until the Purchase
Price with respect thereto has been paid to the Trust Fund.
Mortgage Loan Repurchase Price: The price, calculated as set forth in
Section 9.01, to be paid in connection with the repurchase of the Mortgage
Loans pursuant to Section 9.01.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect the deletion of Deleted Mortgage
Loans and the addition of (x) Replacement Mortgage Loans pursuant to the
provisions of this Agreement any (y) Subsequent Mortgage Loans pursuant to the
provisions of this Agreement and any Subsequent Transfer Agreement)
transferred to the Trustee as part of the Trust Fund and from time to time
subject to this Agreement, attached hereto as Exhibit F-1, setting forth the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) [Reserved];
(iii) the Appraised Value;
(iv) the Initial Mortgage Rate;
(v) the maturity date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the first payment date of the Mortgage Loan;
(ix) the Scheduled Payment in effect as of the Cut-off Date;
(x) the Loan-to-Value Ratio or Combined Loan-to-Value Ratio, as
applicable, at origination;
(xi) a code indicating whether the residential dwelling at the time of
origination was represented to be owner-occupied;
(xii) a code indicating whether the residential dwelling is
either (a) a detached single family dwelling (b) a condominium unit or (c) a
two- to four-unit residential property;
(xiii) with respect to each Fixed Rate Mortgage Loan, a code
indicating whether such Mortgage Loan is a Fixed Rate Credit Comeback Loan;
(xiv) with respect to each Adjustable Rate Mortgage Loan;
(a) the frequency of each Adjustment Date;
(b) the next Adjustment Date;
(c) the Maximum Mortgage Rate;
(d) the Minimum Mortgage Rate;
(e) the Mortgage Rate as of the Cut-off Date;
(f) the related Periodic Rate Cap;
(g) the Gross Margin; and
(h) the purpose of the Mortgage Loan; and
(i) the applicable Loan Subgroup.
Such schedule shall also set forth the total of the amounts described under
(vii) above for all of the Mortgage Loans. The Mortgage Loan Schedule shall be
deemed to include each Loan Number and Borrower Identification Mortgage Loan
Schedule delivered pursuant to Section 2.01(f) and all the related Subsequent
Mortgage Loans and Subsequent Mortgage Loan information included therein.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time; provided, however, the Mortgage Rate for each Fixed Rate Credit
Comeback Loan shall be treated as reduced by 0.375% per annum on the first
four yearly anniversaries after the first payment date of such Fixed Rate
Credit Comeback Loan (such first payment date being listed in clause (viii) of
the definition of Mortgage Loan Schedule), whether or not the Mortgagor
actually qualifies for such reduction pursuant to the terms of the related
Mortgage or Mortgage Note.
Mortgaged Property: The underlying property securing a Mortgage Loan.
Mortgagor: The obligors on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date and Certificate
Group, a fraction, expressed as a percentage, the numerator of which is equal
to the excess of (x) the aggregate Stated Principal Balance for such
Distribution Date of the Mortgage Loans in the related Loan Group, multiplied
by the related Net Rate with respect to such Loan Group over (y) the sum of
the Interest Distribution Amount for such Distribution Date and Certificate
Group, and the denominator of which is an amount equal to the aggregate Stated
Principal Balance for such Distribution Date of the Mortgage Loans in the
related Loan Group, multiplied by the actual number of days elapsed in the
related Interest Accrual Period divided by 360.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not or, in the case of a current delinquency, would
not, be ultimately recoverable by the Master Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
OC Floor: For (i) the Adjustable Rate Mortgage Loans, 0.50% of the sum of
the Stated Principal Balance as of the Initial Cut-off Date of the Adjustable
Rate Mortgage Loans that are Initial Mortgage Loans plus the amount of the
Pre-Funded Amount originally allocated to purchase Subsequent Mortgage Loans
to be included in the related Loan Group and (ii) the Fixed Rate Mortgage
Loans, 0.50% of the sum of the Stated Principal Balance as of the Initial
Cut-off Date of the Fixed Rate Mortgage Loans that are Initial Mortgage Loans
plus the amount of the Pre-Funded Amount originally allocated to purchase
Subsequent Mortgage Loans to be included in the related Loan Group.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Vice President
(however denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one of the assistant treasurers or assistant secretaries of the
Depositor or the Master Servicer (or any other officer customarily performing
functions similar to those performed by any of the above designated officers
and also to whom, with respect to a particular matter, such matter is referred
because of such officer's knowledge of and familiarity with a particular
subject) or (ii), if provided for in this Agreement, signed by a Servicing
Officer, as the case may be, and delivered to the Depositor, the Seller and
the Trustee, as the case may be, as required by this Agreement.
One-Month LIBOR: With respect to any Accrual Period, the rate determined
by the Trustee on the related Interest Determination Date on the basis of the
rate for U.S. dollar deposits for one month that appears on Telerate Screen
Page 3750 as of 11:00 a.m. (London time) on such Interest Determination Date;
provided that the parties hereto acknowledge that One-Month LIBOR calculated
for the first Accrual Period shall equal 5.8775% per annum. If such rate does
not appear on such page (or such other page as may replace that page on that
service, or if such service is no longer offered, such other service for
displaying One-Month LIBOR or comparable rates as may be reasonably selected
by the Trustee), One-Month LIBOR for the applicable Accrual Period will be the
Reference Bank Rate. If no such quotations can be obtained by the Trustee and
no Reference Bank Rate is available, One-Month LIBOR will be One-Month LIBOR
applicable to the preceding Accrual Period.
1/29 Mortgage Loan: A Mortgage Loan having a Mortgage Rate that is fixed
for 12 months after origination thereof before such Mortgage Rate becomes
subject to adjustment.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor or the Master Servicer, reasonably acceptable to each addressee
of such opinion; provided that with respect to Section 6.04 or 10.01, or the
interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of the Depositor and the Master Servicer, (ii) not have
any direct financial interest in the Depositor or the Master Servicer or in
any affiliate of either, and (iii) not be connected with the Depositor or the
Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Optional Termination: The termination of either Loan Group created
hereunder pursuant to the purchase of the related Mortgage Loans pursuant to
the last sentence of Section 9.01 hereof.
Optional Termination Date: With respect to either Loan Group, the
Distribution Date on which the Stated Principal Balance of the Mortgage Loans
in such Loan Group is equal to or less than 10% of the sum of the Stated
Principal Balance of the Initial Mortgage Loans in such Loan Group as of the
Initial Cut-off Date plus the amount of the Pre-Funded Amount originally
allocated to purchase Subsequent Mortgage Loans to be included in the related
Loan Group.
Original Mortgage Loan: The mortgage loan refinanced in connection with
the origination of a Refinancing Mortgage Loan.
Original Value: The value of the property underlying a Mortgage Loan
based, in the case of the purchase of the underlying Mortgaged Property, on
the lower of an appraisal satisfactory to the Master Servicer or the sales
price of such property or, in the case of a refinancing, on an appraisal
satisfactory to the Master Servicer.
OTS: The Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to the
Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to this
Agreement.
Outstanding Mortgage Loan: As of any Distribution Date, a Mortgage Loan
with a Stated Principal Balance greater than zero that was not the subject of
a Principal Prepayment in full, and that did not become a Liquidated Loan,
prior to the end of the related Prepayment Period.
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.
Pass-Through Rate: With respect to the Class AF-1 Certificates, the Class
AF-1 Pass-Through Rate; with respect to the Class AF-2 Certificates, the Class
AF-2 Pass-Through Rate; with respect to the Class AF-3 Certificates, the Class
AF-3 Pass-Through Rate; with respect to the Class AF-4 Certificates, the Class
AF-4 Pass-Through Rate; with respect to the Class AF-5 Certificates, the Class
AF-5 Pass-Through Rate; with respect to the Class AF-6 Certificates, the Class
AF-6 Pass-Through Rate; with respect to the Class AV-1 Certificates, the Class
AV-1 Pass-Through Rate; with respect to the Class AV-2 Certificates, the Class
AV-2 Pass-Through Rate with respect to the Class MF-1 Certificates, the Class
MF-1 Pass-Through Rate; with respect to the Class MF-2 Certificates, the Class
MF-2 Pass-Through Rate; with respect to the Class MV-1 Certificates, the Class
MV-1 Pass-Through Rate; with respect to the Class MV-2 Certificates, the Class
MV-2 Pass-Through Rate; with respect to the Class BF Certificates, the Class
BF Pass-Through Rate; and with respect to the Class BV Certificates, the Class
BV Pass-Through Rate.
Percentage Interest: With respect to:
(i) any Class, the percentage interest in the undivided beneficial
ownership interest in the related Certificate Group evidenced by such Class
which shall be equal to the Certificate Principal Balance of such Class
divided by the Class Principal Balance of all Classes in such Certificate
Group; and
(ii) any Certificate, the Percentage Interest evidenced thereby of
the related Class shall equal the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of such Class.
Periodic Rate Cap: As to each Adjustable Rate Mortgage Loan and the
related Mortgage Note, the provision therein that limits permissible increases
and decreases in the Mortgage Rate on any Adjustment Date to not more than one
and one-half percentage points, except that on the Initial Adjustment Dates,
certain of the 1/29, 2/28 and 3/27 Mortgage Loans are subject to a provision
that limits permissible increases and decreases in the Mortgage Rates as
provided in the related Mortgage Notes.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided such
obligations are backed by the full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of the
United States or the District of Columbia receiving the highest long-term debt
rating of each Rating Agency (or, if DCR does not provide such a rating, by
S&P in lieu of DCR), or such lower rating as each Rating Agency has confirmed
in writing will not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by such Rating Agency;
(iii) [Reserved];
(iv) commercial or finance company paper which is then receiving the
highest commercial or finance company paper rating of each Rating Agency (or,
if DCR does not provide such a rating, by S&P in lieu of DCR), or such lower
rating as each Rating Agency has confirmed in writing will not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates by
such Rating Agency;
(v) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal and/or state banking authorities,
provided that the commercial paper and/or long term unsecured debt obligations
of such depository institution or trust company (or in the case of the
principal depository institution in a holding company system, the commercial
paper or long-term unsecured debt obligations of such holding company, but
only if Moody's is not a Rating Agency) are then rated one of the two highest
long-term and the highest short-term ratings of each such Rating Agency for
such securities (or, if DCR does not provide such a rating, by S&P in lieu of
DCR), or such lower ratings as each Rating Agency has confirmed in writing
will not result in the downgrading or withdrawal of the rating then assigned
to the Certificates by such Rating Agency;
(vi) demand or time deposits or certificates of deposit issued by any bank
or trust company or savings institution to the extent that such deposits are
fully insured by the FDIC;
(vii) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the issuance
of such agreements, such terms and conditions as each Rating Agency has
confirmed in writing will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by such Rating Agency;
(viii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (v)
above;
(ix) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face amount
thereof) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state thereof which,
at the time of such investment, have one of the two highest long term ratings
of each Rating Agency (except (x) if the Rating Agency is Moody's, such rating
shall be the highest commercial paper rating of S&P for any such securities
any (y) if DCR does not provide such a rating, of S&P in lieu of DCR), or such
lower rating as each Rating Agency has confirmed in writing will not result in
the downgrading or withdrawal of the rating then assigned to the Certificates
by such Rating Agency;
(x) interests in any money market fund which at the date of acquisition
of the interests in such fund and throughout the time such interests are held
in such fund has the highest applicable long term rating by each Rating Agency
(or, if DCR does not provide such a rating, by S&P in lieu of DCR) or such
lower rating as each Rating Agency has confirmed in writing will not result in
the downgrading or withdrawal of the ratings then assigned to the Certificates
by such Rating Agency;
(xi) short term investment funds sponsored by any trust company or
national banking association incorporated under the laws of the United States
or any state thereof which on the date of acquisition has been rated by each
Rating Agency (or, if DCR does not provide such a rating, by S&P in lieu of
DCR) in their respective highest applicable rating category or such lower
rating as each Rating Agency has confirmed in writing will not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates by
such Rating Agency; and
(xii) such other investments having a specified stated maturity and
bearing interest or sold at a discount acceptable to each Rating Agency as
will not result in the downgrading or withdrawal of the rating then assigned
to the Certificates by any Rating Agency, as evidenced by a signed writing
delivered by each Rating Agency;
provided, that no such instrument shall be a Permitted Investment if such
instrument (i) evidences the right to receive interest only payments with
respect to the obligations underlying such instrument, (ii) is purchased at a
premium or (iii) is purchased at a deep discount; provided further that no
such instrument shall be a Permitted Investment (A) if such instrument
evidences principal and interest payments derived from obligations underlying
such instrument and the interest payments with respect to such instrument
provide a yield to maturity of greater than 120% of the yield to maturity at
par of such underlying obligations, or (B) if it may be redeemed at a price
below the purchase price (the foregoing clause (B) not to apply to investments
in units of money market funds pursuant to clause (vii) above); provided
further that no amount beneficially owned by any REMIC (including, without
limitation, any amounts collected by the Master Servicer but not yet deposited
in the Certificate Account) may be invested in investments (other than money
market funds) treated as equity interests for Federal income tax purposes,
unless the Master Servicer shall receive an Opinion of Counsel, at the expense
of Master Servicer, to the effect that such investment will not adversely
affect the status of any such REMIC as a REMIC under the Code or result in
imposition of a tax on any such REMIC. Permitted Investments that are subject
to prepayment or call may not be purchased at a price in excess of par.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(1) of the
Code) with respect to any Class R Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in Section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity (treated as a corporation or a partnership for
federal income tax purposes) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, or an estate
whose income 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 trustor
unless such Person has furnished the transferor and the Trustee with a duly
completed Internal Revenue Service Form 4224, and (vii) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Class R Certificate to such Person may cause the
Trust Fund to fail to qualify as a REMIC at any time that any Certificates are
Outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality
of the United States or of any State or political subdivision thereof for
these purposes if all of its activities are subject to tax and, with the
exception of the Federal Home Loan Mortgage Corporation, a majority of its
board of directors is not selected by such government unit.
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.
Pre-Funded Amount: The amount deposited in the Pre-Funding Account on the
Closing Date, which shall equal $120,097,973.64.
Pre-Funding Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.05 in the name of the Trustee for the
benefit of the Certificateholders and designated "The Bank of New York, in
trust for registered holders of CWABS, Inc., Asset-Backed Certificates, Series
2000-1." Funds in the Pre-Funding Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement and
shall not be a part of any REMIC created hereunder, provided, however that any
investment income earned from Permitted Investments made with funds in the
Pre-Funding Account will be for the account of the Depositor.
Prepayment Assumption: The applicable rate of prepayment, as described in
the Prospectus Supplement relating to the Certificates in a Certificate Group.
Prepayment Interest Excess: With respect to any Distribution Date, for
each Mortgage Loan that was the subject of a Principal Prepayment during the
period from the second day through the fifteenth day of the month of such
Distribution Date, any payment of interest received in connection therewith
(net of any applicable Servicing Fee) representing interest accrued for any
portion of such month of receipt.
Prepayment Interest Shortfall: With respect to any Distribution Date, for
each Mortgage Loan that was the subject of a partial Principal Prepayment, a
Principal Prepayment in full, or that became a Liquidated Loan during the
period from the sixteenth day of the month preceding such Distribution Date
through the first day of the month in which such Distribution Date occurs, or
in the case of the first Distribution Date, from the Cut-off Date through and
including the fifteenth day of the month of such Distribution Date, (other
than a Principal Prepayment in full resulting from the purchase of a Mortgage
Loan pursuant to Section 2.02, 2.03, 2.04, 3.12 or 9.01 hereof), the amount,
if any, by which (i) one month's interest at the applicable Net Mortgage Rate
on the Stated Principal Balance of such Mortgage Loan immediately prior to
such prepayment (or liquidation) or in the case of a partial Principal
Prepayment on the amount of such prepayment (or liquidation proceeds) exceeds
(ii) the amount of interest paid or collected in connection with such
Principal Prepayment or such liquidation proceeds.
Prepayment Period: As to any Distribution Date, the time period beginning
with the opening of business on the sixteenth day of the calendar month
preceding the month in which such Distribution Date occurs (or, with respect
to the first Distribution Date, the period from the Cut-off Date) and ending
on the close of business on the fifteenth day of the month in which such
Distribution Date occurs.
Principal Prepayment: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including loans
purchased or repurchased under Sections 2.02, 2.03, 2.04, 3.12 and 9.01
hereof) that is received in advance of its scheduled Due Date and is not
accompanied by an amount as to interest representing scheduled interest due on
any date or dates in any month or months subsequent to the month of
prepayment. Partial Principal Prepayments shall be applied by the Master
Servicer in accordance with the terms of the related Mortgage Note.
Prospectus Supplement: The Prospectus Supplement dated February 8, 2000
relating to the public offering of the Fixed Rate Certificates and the
Adjustable Rate Certificates offered thereby.
PUD: A Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan (x) required to be
repurchased by the Seller or purchased by (1) the Master Servicer, as
applicable, pursuant to Section 2.02, 2.03 or 3.12 hereof or (2) the Depositor
pursuant to Section 2.04 hereof or (y) that the Master Servicer has a right to
purchase pursuant to Section 3.12 hereof, an amount equal to the sum of (i)
100% of the unpaid principal balance (or, if such purchase or repurchase, as
the case may be, is effected by the Seller (and the Seller is the Master
Servicer) or by the Master Servicer, the Stated Principal Balance) of the
Mortgage Loan as of the date of such purchase and (ii) accrued interest
thereon at the applicable Mortgage Rate (or, if such purchase or repurchase,
as the case may be, is effected by the Seller (and the Seller is the Master
Servicer) or by the Master Servicer, at the Net Mortgage Rate) from (a) the
date through which interest was last paid by the Mortgagor (or, if such
purchase or repurchase, as the case may be, is effected by the Seller (and the
Seller is the Master Servicer) or by the Master Servicer, the date through
which interest was last advanced and not reimbursed by the Master Servicer) to
(b) the Due Date in the month in which the Purchase Price is to be distributed
to Certificateholders.
Rating Agency: Moody's and DCR. If any such organization or its successor
is no longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization, or other comparable Person, designated by the
Depositor, notice of which designation shall be given to the Trustee.
References herein to a given rating category of a Rating Agency shall mean
such rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Loan, an amount (not less
than zero or more than the Stated Principal Balance of the Mortgage Loan) as
of the date of such liquidation, equal to (i) the Stated Principal Balance of
such Liquidated Loan as of the date of such liquidation, minus (ii) the
Liquidation Proceeds, if any, received in connection with such liquidation
during the month in which such liquidation occurs, to the extent applied as
recoveries of principal of the Liquidated Loan. With respect to each Mortgage
Loan that has become the subject of a Deficient Valuation, (i) if the value of
the related Mortgaged Property was reduced below the principal balance of the
related Mortgage Note, the amount by which the value of the Mortgaged Property
was reduced below the principal balance of the related Mortgage Note, and (ii)
if the principal amount due under the related Mortgage Note has been reduced,
the difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation plus any reduction in the
interest component of the Scheduled Payments. With respect to each Mortgage
Loan that has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the related Scheduled Payment
was reduced.
Record Date: With respect to any Distribution Date, the close of business
on the last Business Day of the month preceding the month in which the
applicable Distribution Date occurs.
Reference Bank Rate: With respect to any Accrual Period, the arithmetic
mean (rounded upwards, if necessary, to the nearest whole multiple of
0.03125%) of the offered rates for United States dollar deposits for one month
that are quoted by the Reference Banks as of 11:00 a.m., New York City time,
on the related Interest Determination Date to prime banks in the London
interbank market for a period of one month in amounts approximately equal to
the outstanding balance of the Adjustable Rate Certificates on such Interest
Determination Date, provided that at least two such Reference Banks provide
such rate. If fewer than two offered rates appear, the Reference Bank Rate
will be the arithmetic mean (rounded upwards, if necessary, to the nearest
whole multiple of 0.03125%) of the rates quoted by one or more major banks in
New York City, selected by the Trustee, as of 11:00 a.m., New York City time,
on such date for loans in U.S. dollars to leading European banks for a period
of one month in amounts approximately equal to the outstanding balance of the
Adjustable Rate Certificates on such Interest Determination Date.
Reference Banks: Barclays Bank PLC, Bankers Trust and NatWest, N.A.,
provided that if any of the foregoing banks are not suitable to serve as a
Reference Bank, then any leading banks selected by the Trustee which are
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with the Depositor or any affiliate thereof and (iii) which have been
designated as such by the Trustee.
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificate: Any one of the Fixed Rate Certificates and the
Adjustable Rate Certificates.
REO Property: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Replacement Mortgage Loan: A Mortgage Loan substituted by the Seller for
a Deleted Mortgage Loan, which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit N,
(i) have a Stated Principal Balance, after deduction of the principal portion
of the Scheduled Payment due in the month of substitution, not in excess of,
and not less than 90% of the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) with respect to any Fixed Rate Mortgage Loan, have a Mortgage Rate
not less than or no more than 1% per annum higher than the Mortgage Rate of
the Deleted Mortgage Loan and, with respect to any Adjustable Rate Mortgage
Loan: (a) have a Maximum Mortgage Rate no more than 1% per annum higher or
lower than the Maximum Mortgage Rate of the Deleted Mortgage Loan; (b) have a
Minimum Mortgage Rate no more than 1% per annum higher or lower than the
Minimum Mortgage Rate of the Deleted Mortgage Loan; (c) have the same Index
and Periodic Rate Cap as that of the Deleted Mortgage Loan and a Gross Margin
not more than 1% per annum higher or lower than that of the Deleted Mortgage
Loan; and (d) not permit conversion of the related Mortgage Rate to a fixed
Mortgage Rate; (iii) have the same or higher credit quality characteristics
than that of the Deleted Mortgage Loan; (iv) be accruing interest at a rate
not more than 1% per annum higher or lower than that of the Deleted Mortgage
Loan; (v) have a Loan-to-Value Ratio or Combined Loan-to-Value Ratio, as
applicable, no higher than that of the Deleted Mortgage Loan; (vi) have a
remaining term to maturity no greater than (and not more than one year less
than) that of the Deleted Mortgage Loan; (vii) not permit conversion of the
Mortgage Rate from a fixed rate to a variable rate or visa versa; (viii)
provide for a prepayment charge on terms substantially similar to those of the
prepayment charge, if any, of the Deleted Mortgage Loan; (ix) have the same
lien priority as the Deleted Mortgage Loan; (x) constitute the same occupancy
type as the Deleted Mortgage Loan; and (xi) comply with each representation
and warranty set forth in Section 2.03 hereof.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Adjustable Rate Carryover Reserve Fund Deposit: With respect to
any Distribution Date on which the Net Excess Spread is less than 0.25%, the
excess of (i) the product of 0.50% and the aggregate Stated Principal Balance
for such Distribution Date of the Adjustable Rate Mortgage Loans over (ii) the
amount of funds on deposit in the Adjustable Rate Carryover Reserve Fund prior
to deposits thereto on such Distribution Date. With respect to any
Distribution Date on which the Net Excess Spread is equal to or greater than
0.25%, the excess of (i) $5,000 over (ii) the amount of funds on deposit in
the Adjustable Rate Carryover Reserve Fund prior to deposits thereto on such
Distribution Date. The Depositor shall cause the deposit of $5,000 to the
Adjustable Rate Carryover Reserve Fund on the Closing Date.
Required Fixed Rate Carryover Reserve Fund Deposit: With respect to any
Distribution Date on which the Net Excess Spread is less than 0.25%, the
excess of (i) the product of 0.50% and the aggregate Stated Principal Balance
of the Fixed Rate Mortgage Loans over (ii) the amount of funds on deposit in
the Fixed Rate Carryover Reserve Fund prior to deposits thereto on such
Distribution Date. With respect to any Distribution Date on which the Net
Excess Spread is equal to or greater than 0.25%, the excess of (i) $5,000 over
(ii) the amount of funds on deposit in the Fixed Rate Carryover Reserve Fund
prior to deposits thereto on such Distribution Date. The Depositor shall cause
the deposit of $5,000 to the Fixed Net Rate Carryover Reserve Fund on the
Closing Date.
Required Percentage: With respect to: (i) the Fixed Rate Trigger Event
and any Distribution Date after the Fixed Rate Stepdown Date, is equal to the
quotient of (x) the excess of (I) the Stated Principal Balance for such
Distribution Date of the Fixed Rate Mortgage Loans over (II) the Certificate
Principal Balance of the most senior Class of the Fixed Rate Certificates
outstanding as of the preceding Master Servicer Advance Date (provided that
the Certificate Principal Balance of the most senior Class of Fixed Rate
Certificates shall mean the Fixed Rate Class A Certificate Principal Balance
until such principal balance is reduced to zero) and (y) the Stated Principal
Balance for such Distribution Date of the Fixed Rate Mortgage Loans; and (ii)
the Adjustable Rate Trigger Event and any Distribution Date after the
Adjustable Rate Stepdown Date, is equal to the quotient of (x) the excess of
(I) the Stated Principal Balance for such Distribution Date of the Adjustable
Rate Mortgage Loans over (II) the Certificate Principal Balance of the most
senior Class of the Adjustable Rate Certificates outstanding as of the
preceding Master Servicer Advance Date (provided that the Certificate
Principal Balance of the most senior Class of Adjustable Rate Certificates
shall mean the Adjustable Rate Class A Certificate Principal Balance until
such principal balance is reduced to zero) and (y) the Stated Principal
Balance for such Distribution Date of the Adjustable Rate Mortgage Loans.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide Home Loans, Inc., a New York corporation, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations hereunder, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged
Property, (ii) any enforcement or judicial proceedings, including
foreclosures, (iii) the management and liquidation of any REO Property and
(iv) compliance with the obligations under Section 3.10.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the Servicing Fee Rate on the Stated
Principal Balance of such Mortgage Loan or, in the event of any payment of
interest that accompanies a Principal Prepayment in full made by the
Mortgagor, interest at the Servicing Fee Rate on the Stated Principal Balance
of such Mortgage Loan for the period covered by such payment of interest.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per annum.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
S&P: Standard & Poor's, a division of The McGraw Hill Companies, Inc.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property (i) as of the Cut-off Date, and (ii) as of any Distribution Date,
such Cut-off Date Principal Balance minus the sum of (a) the principal portion
of the Scheduled Payments (x) due with respect to such Mortgage Loan during
each Due Period ending prior to such Distribution Date and (y) that were
received by the Master Servicer as of the close of business on the
Determination Date related to such Distribution Date or with respect to which
Advances were made as of the Master Servicer Advance Date related to such
Distribution Date, (b) all Principal Prepayments with respect to such Mortgage
Loan received by the Master Servicer during each Prepayment Period ending
prior to such Distribution Date, and (c) all Liquidation Proceeds collected
with respect to such Mortgage Loan during each Due Period ending prior to such
Distribution Date, to the extent applied by the Master Servicer as recoveries
of principal in accordance with Section 3.12. The Stated Principal Balance of
any Mortgage Loan that becomes a Liquidated Loan will be zero on the
Distribution Date following the Due Period in which such Mortgage Loan becomes
a Liquidated Loan. References herein to the Stated Principal Balance of a Loan
Group or Loan Subgroup at any time shall mean the aggregate Stated Principal
Balance of all Mortgage Loans in such Loan Group or such Loan Subgroup (as
applicable) at such time.
Subsequent Certificate Account Deposit: With respect to any Subsequent
Transfer Date, an amount equal to the aggregate of all amounts in respect of
(i) principal of the related Subsequent Mortgage Loans due on or after the
related Subsequent Cut-off Date and received by the Master Servicer before
such Subsequent Transfer Date and not applied in computing the Cut-off Date
Principal Balance thereof and (ii) interest on the such Subsequent Mortgage
Loans due on and after such Subsequent Cut-off Date and received by the Master
Servicer before the Subsequent Transfer Date.
Subsequent Cut-off Date: As defined in the definition of Cut-off Date.
Subsequent Mortgage Loan: Any Mortgage Loan conveyed to the Trust Fund
pursuant to Section 2.01(b) on a Subsequent Transfer Date, and listed on the
related Loan Number and Borrower Identification Mortgage Loan Schedule
delivered pursuant to Section 2.01(f). When used with respect to a single
Subsequent Transfer Date, "Subsequent Mortgage Loan" shall mean a Subsequent
Mortgage Loan conveyed to the Trust Fund on such Subsequent Transfer Date
Subsequent Transfer Agreement: A Subsequent Transfer Agreement
substantially in the form of Exhibit Q hereto, executed and delivered by the
Seller, the Depositor and the Trustee as provided in Section 2.01(d).
Subsequent Transfer Date: For any Subsequent Transfer Agreement, the
"Subsequent Transfer Date" identified in such Subsequent Transfer Agreement;
provided, however, the Subsequent Transfer Date for any Subsequent Transfer
Agreement may not be a date earlier than the date on which the Subsequent
Transfer Agreement is executed and delivered by the parties thereto pursuant
to Section 2.01(d).
Subsequent Transfer Date Aggregate Purchase Amount: With respect to any
Subsequent Transfer Date, the sum of (i) the Subsequent Transfer Date Fixed
Loan Purchase Amount for such Subsequent Transfer Date, (ii) the Subsequent
Transfer Date Subgroup 1A Purchase Amount for such Subsequent Transfer Date
and (iii) the Subsequent Transfer Date Subgroup 2A Purchase Amount for such
Subsequent Transfer Date.
Subsequent Transfer Date Fixed Loan Purchase Amount: With respect to any
Subsequent Transfer Date, the "Subsequent Transfer Date Fixed Loan Purchase
Amount" identified in the related Subsequent Transfer Agreement which shall be
an estimate of the aggregate Stated Principal Balances of the Subsequent
Mortgage Loans identified in such Subsequent Transfer Agreement that are to be
included in the Fixed Rate Loan Group.
Subsequent Transfer Date Fixed Loan Transfer Amount: With respect to any
Subsequent Transfer Date, the aggregate Stated Principal Balances as of the
related Subsequent Cut-off Dates of the Subsequent Mortgage Loans conveyed on
such Subsequent Transfer Date that are to be included in the Fixed Rate Loan
Group, as listed on the related Loan Number and Borrower Identification
Mortgage Loan Schedule delivered pursuant to Section 2.01(f); provided,
however, that such amount shall not exceed the amount on deposit in the
Pre-Funding Account allocated to purchase Subsequent Mortgage Loans to be
included in the Fixed Rate Loan Group.
Subsequent Transfer Date Subgroup 1A Purchase Amount: With respect to any
Subsequent Transfer Date, the "Subsequent Transfer Date Group 1A Purchase
Amount" identified in the related Subsequent Transfer Agreement which shall be
an estimate of the aggregate Stated Principal Balances of the Subsequent
Mortgage Loans identified in such Subsequent Transfer Agreement that are to be
included in Loan Subgroup 1A.
Subsequent Transfer Date Subgroup 1A Transfer Amount: With respect to any
Subsequent Transfer Date, the aggregate Stated Principal Balances as of the
related Subsequent Cut-off Dates of the Subsequent Mortgage Loans conveyed on
such Subsequent Transfer Date that are to be included in the Loan Subgroup 1A,
as listed on the related Loan Number and Borrower Identification Mortgage Loan
Schedule delivered pursuant to Section 2.01(f); provided, however, that such
amount shall not exceed the amount on deposit in the Pre-Funding Account
allocated to purchase Subsequent Mortgage Loans to be included in the Loan
Subgroup 1A.
Subsequent Transfer Date Subgroup 2A Purchase Amount: With respect to any
Subsequent Transfer Date, the "Subsequent Transfer Date Subgroup 2A Purchase
Amount" identified in the related Subsequent Transfer Agreement which shall be
an estimate of the aggregate Stated Principal Balances of the Subsequent
Mortgage Loans identified in such Subsequent Transfer Agreement that are to be
included in Loan Subgroup 2A.
Subsequent Transfer Date Subgroup 2A Transfer Amount: With respect to any
Subsequent Transfer Date, the aggregate Stated Principal Balances as of the
related Subsequent Cut-off Dates of the Subsequent Mortgage Loans conveyed on
such Subsequent Transfer Date that are to be included in the Loan Subgroup 2A,
as listed on the related Loan Number and Borrower Identification Mortgage Loan
Schedule delivered pursuant to Section 2.01(f); provided, however, that such
amount shall not exceed the amount on deposit in the Pre-Funding Account
allocated to purchase Subsequent Mortgage Loans to be included in the Loan
Subgroup 2A.
Subsequent Transfer Date Transfer Amount: With respect to any Subsequent
Transfer Date, the sum of (i) the Subsequent Transfer Date Fixed Loan Transfer
Amount for such Subsequent Transfer Date, (ii) the Subsequent Transfer Date
Subgroup 1A Transfer Amount for such Subsequent Transfer Date and (iii) the
Subsequent Transfer Date Subgroup 2A Transfer Amount for such Subsequent
Transfer Date.
Subservicer: As defined in Section 3.02(a).
Subservicing Agreement: As defined in Section 3.02(a).
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03(c).
Substitution Amount: With respect to any Mortgage Loan substituted
pursuant to Section 2.03(c), the excess of (x) the principal balance of the
Mortgage Loan that is substituted for, over (y) the principal balance of the
related substitute Mortgage Loan, each balance being determined as of the date
of substitution.
Tax Matters Person: The person designated as "tax matters person" in the
manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)-1T. Initially, this person shall be the
Trustee.
Tax Matters Person Class R Certificate: A Class R Certificate designated
as the Tax Matters Person Class R Certificate and evidencing 0.001% Percentage
Interest of the Class R Certificates.
3/27 Mortgage Loan: A Mortgage Loan having a Mortgage Rate that is fixed
for 36 months after origination thereof before such Mortgage Rate becomes
subject to adjustment.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
Trust Fund: The corpus of the trust created hereunder consisting of (i)
the Mortgage Loans and all interest and principal received on or with respect
thereto on and after the Cut-off Date to the extent not applied in computing
the Cut-off Date Principal Balance thereof, exclusive of interest not required
to be deposited in the Certificate Account pursuant to Section 3.05(b)(ii);
(ii) the Certificate Account, the Distribution Account, the Pre-Funding
Account, the Fixed Rate Carryover Reserve Fund and the Adjustable Rate
Carryover Reserve Fund and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) property that secured a
Mortgage Loan and has been acquired by foreclosure, deed in lieu of
foreclosure or otherwise; (iv) the mortgagee's rights under the Insurance
Policies with respect to the Mortgage Loan; and (v) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
Trustee: The Bank of New York, a New York banking corporation, not in its
individual capacity, but solely in its capacity as trustee for the benefit of
the Certificateholders under this Agreement, and any successor thereto, and
any corporation or national banking association resulting from or surviving
any consolidation or merger to which it or its successors may be a party and
any successor trustee as may from time to time be serving as successor trustee
hereunder.
2/28 Mortgage Loan: A Mortgage Loan having a Mortgage Rate that is fixed
for 24 months after origination thereof before such Mortgage Rate becomes
subject to adjustment.
Voting Rights: The portion of the voting rights of all the Certificates
that is allocated to any Certificates for purposes of the voting provisions
hereunder. Voting Rights allocated to each Class of Certificates shall be
allocated 95% to the Fixed Rate Certificates and Adjustable Rate Certificates
(other than the Class B-IO Certificates), and 5% to the Class B-IO
Certificates and the Class R Certificates, with the allocation among the Fixed
Rate Certificates and Adjustable Rate Certificates to be in proportion to the
Certificate Principal Balance of each Class relative to the Certificate
Principal Balance of all other such Classes, and with the allocation among the
Class BF-IO, Class BV-IO and Class R Certificates being two-fifths, two-fifths
and one-fifth, respectively. Voting Rights will be allocated among the
Certificates of each such Class in accordance with their respective Percentage
Interests.
Weighted Maximum Rate Cap: As of any Distribution Date, a rate equal to
(i) the lesser of (x) the weighted average of the Maximum Mortgage Rates on
the Adjustable Rate Mortgage Loans in Loan Subgroup 1A and (y) the weighted
average of the Maximum Mortgage Rates on the Adjustable Rate Mortgage Loans in
Loan Subgroup 2A, in each case on such Distribution Date multiplied by 360
over the actual number of days in the Due Period minus (ii) the Servicing Fee
Rate.
Section 1.02. Certain REMIC-Related Defined Terms.
In addition to those defined terms defined in Section 1.01, whenever used
in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Adjustable Rate Adjusted Overcollateralization Amount: For any
Distribution Date, the excess of (x) the Stated Principal Balance for such
Distribution Date of the Adjustable Rate Mortgage Loans over (y) the aggregate
principal balance of the Class T3-V1, Class T3-V2, Class T3-V3, Class T3-V4
and the Class T3-V5 Interests.
Adjustable Rate Adjusted Overcollateralization Release Amount: For any
Distribution Date, the lesser of the (a) the Adjustable Rate Principal
Distribution Amount with respect to the Adjustable Rate Mortgage Loans, and
(b) the amount, if any, by which the Adjustable Rate Adjusted
Overcollateralization Amount for such date, calculated for this purpose on the
basis of the assumption that 100% of the Adjustable Rate Principal
Distribution Amount for such date is applied on such date in reduction of the
principal balances of the Class T3-V1, Class T3-V2, Class T3-V3, Class T3-V4
and Class T3-V5 Interests, exceeds the Adjustable Rate Specified
Overcollateralization Amount.
Adjustable Net Rate: The weighted average Net Mortgage Rate for
Adjustable Rate Mortgage Loans. For purposes of the definition of Adjustable
Net Rate, all calculations of interest in respect of a Mortgage Loan at the
Mortgage Rate less the related Servicing Fee Rate will be made on the basis of
the actual number of days in the related Accrual Period and a 360 day year.
The Adjustable Net Rate in respect of the first Distribution Date shall be
10.636%.
Adjustable Rate Standard Rate: The lesser of (i) the sum of (A) One Month
LIBOR plus (B) the Class BV Margin, and (ii) the Adjustable Net Rate for such
Distribution Date.
Class R-BTF Interest: The uncertificated residual interest in REMIC BTF.
Class R-BTV Interest: The uncertificated residual interest in REMIC BTV.
Class R-1 Interest: The uncertificated residual interest in REMIC 1.
Class R-2 Interest: The uncertificated residual interest in REMIC 2.
Class R-3 Interest: The uncertificated residual interest in REMIC 3.
Class R-4 Interest: The uncertificated residual interest in REMIC 4.
Class BT-F1 Interest: A regular interest in REMIC BTF that is held as an
asset of REMIC 1, that has an initial principal balance equal to the aggregate
principal balance of the Fixed Rate Mortgage Loans which are not Fixed Rate
Credit Comeback Loans, that bears interest at a per annum rate equal to the
weighted average rate of the Net Mortgage Rates of all Fixed Rate Mortgage
Loans which are not Fixed Rate Credit Comeback Loans, and that has such other
terms as are described in Section 4.06.
Class BT-V1 Interest: A regular interest in REMIC BTV that is held as an
asset of REMIC 1V, that has an initial principal balance equal to the
aggregate principal balance of the Adjustable Rate Mortgage Loans that bears
interest at the Adjustable Net Rate and has such other terms as are described
in Section 4.06.
Class T1-F1 Interest: A regular interest in REMIC 1 that is held as an
asset of REMIC 2, that has an initial principal balance equal to 98% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net
Rate, and that has such other terms as are described in Section 4.06.
Class T1-F2 Interest: A regular interest in REMIC 1 that is held as an
asset of REMIC 2, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net
Rate, and that has such other terms as are described in Section 4.06.
Class T1-F3 Interest: A regular interest in REMIC 1 that is held as an
asset of REMIC 2, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net
Rate, and that has such other terms as are described in Section 4.06.
Class T1-V1 Interest: A regular interest in REMIC 1 that is held as an
asset of REMIC 2, that has an initial principal balance equal to 98% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T1-V2 Interest: A regular interest in REMIC 1 that is held as an
asset of REMIC 2, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T1-V3 Interest: A regular interest in REMIC 1 that is held as an
asset of REMIC 2, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T2-F1 Interest: A regular interest in REMIC 2 that is held as an
asset of REMIC 3, that has an initial principal balance equal to 98% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net
Rate, and has such other terms as are described in Section 4.06.
Class T2-F2 Interest: A regular interest in REMIC 2 that is held as an
asset of REMIC 3, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Standard
Rate, and has such other terms as are described in Section 4.06.
Class T2-F3 Interest: A regular interest in REMIC 2 that is held as an
asset of REMIC 3, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net
Rate, and has such other terms as are described in Section 4.06.
Class T2-F4 Interest: A regular interest in REMIC 2 that is held as an
asset of REMIC 3, that is entitled to 100% of the interest accruals on the
Class T1-F2 Interest in excess of interest accruals on the Class T2-F2
Interest, and that has such other terms as are described in Section 4.06. The
Class T2-F4 interest shall not have a principal balance.
Class T2-V1 Interest: A regular interest in REMIC 2 that is held as an
asset of REMIC 3, that has an initial principal balance equal to 98% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T2-V2 Interest: A regular interest in REMIC 2 that is held as an
asset of REMIC 3, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Rate Standard Rate, and that has such other terms as are described in Section
4.06.
Class T2-V3 Interest: A regular interest in REMIC 2 that is held as an
asset of REMIC 3, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T2-V4 Interest: A regular interest in REMIC 2 that is held as an
asset of REMIC 3, that is entitled to 100% of the interest accruals on the
Class T1-V2 Interest in excess of interest accruals on the Class T2-V2
Interests, and that has such other terms as are described in Section 4.06. The
Class T2-F4 interest shall not have a principal balance.
Class T3-F1 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4, that has an initial principal balance of $102,600,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F2 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4, that has an initial principal balance of $23,700,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F3 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4, that has an initial principal balance of $61,800,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F4 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4, that has an initial principal balance of $31,000,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F5 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4, that has an initial principal balance of $33,620,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F6 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4, that has an initial principal balance of $31,200,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F7 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4, that has an initial principal balance of $9,360,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F8 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4, that has an initial principal balance of $9,360,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F9 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4, that has an initial principal balance of $9,360,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F1IO Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that has such terms as are described in Section 4.06.
Class T3-F1IO Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T3-F1IO Notional Balance immediately before such
distribution date, and (iii) the Class T3-F1IO Pass-Through Rate.
Class T3-F1IO Notional Balance: A notional principal balance equal as of
any date to the sum of the principal balances of the Class T2-F1 and T2-F3
interests for such date.
Class T3-F1IO Pass-Through Rate: With respect to any Distribution Date, a
per annum rate equal to (i) the excess of the Fixed Rate Net Rate for such
date over (ii) the product of two and a fraction, the numerator of which is
the product of (x) the Fixed Rate Standard Rate and (y) the principal balance
of the Class T2-F2 Interest immediately prior to such Distribution Date, and
the denominator of which is the sum of the principal balances of the Class
T2-F2 and T2-F3 Interests immediately before such Distribution Date.
Class T3-F2IO Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that has such terms as are described in Section 4.06.
Class T3-F2IO Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T3-F2IO Notional Balance immediately before such
Distribution Date, and (iii) the Class T3-F2IO Pass-Through Rate.
Class T3-F2IO Notional Balance: A notional principal balance equal as of
any date to the principal balance of the Class T2-F2 interest for such date.
Class T3-F2IO Pass-Through Rate: With respect to any Distribution Date, a
per annum rate equal to (i) the excess of the Fixed Rate Standard Rate over
(ii) the product of two and a fraction, the numerator of which is the product
of (x) the Fixed Rate Standard Rate and (y) the Class T2-F2 Interest
immediately prior to such Distribution Date, and the denominator of which is
the sum of the principal balances of the Class T2-F2 and T2-F3 Interests
immediately before such Distribution Date.
Class T3-F3IO Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that is entitled to receive 100% of the amounts distributable with
respect to the Class T2-F4 Interest, and has such terms as are described in
Section 4.06.
Class T3-FOC Interest: A regular interest in REMIC 3 that is held as an
asset of REMIC 4 that will exist and have a principal balance to the extent of
the excess of (i) the aggregate Stated Principal Balance of the Fixed Rate
Mortgage Loans as of the Cut-off Date over (ii) the aggregate Certificate
Principal Balance of the Class AF-1, Class AF-2, Class AF-3, Class AF-4, Class
AF-5, Class AF-6, Class MF-1, Class MF-2 and Class BF Certificates on the
Closing Date. The Class T3-FOC Interest will bear interest at the Fixed Rate
Standard Rate. Interest on the Class T3-FOC Interest will accrue and be paid
with principal on the Class T3-FOC Interest following the reduction of the
Certificate Principal Balances of the Class AF-1, Class AF-2, Class AF-3,
Class AF-4, Class AF-5, Class AF-6, Class MF-1, Class MF-2, Class BF
Certificates to zero.
Class T3-V1 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that has an initial principal balance of $161,460,000 and bears
interest at a rate equal to the Adjustable Rate Standard Rate.
Class T3-V2 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that has an initial principal balance of $600,000,000 bears interest
at a rate equal to the Adjustable Rate Standard Rate.
Class T3-V3 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that has an initial principal balance of $57,720,000 and bears
interest at a rate equal to the Adjustable Rate Standard Rate.
Class T3-V4 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that has an initial principal balance of $33,300,000 and bears
interest at a rate equal to the Adjustable Rate Standard Rate.
Class T3-V5 Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that has an initial principal balance of $35,520,000 and bears
interest at a rate equal to the Adjustable Rate Standard Rate.
Class T3-V1IO Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that has such terms as are described in Section 4.06.
Class T3-V1IO Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T3-V1IO Notional Balance, and (iii) the Class
T3-V1IO Pass-Through Rate.
Class T3-V1IO Notional Balance: A notional principal balance equal as of
any date to the sum of the principal balances of the Class T2-V1 and T2-V3
Interests for such date.
Class T3-V1IO Pass-Through Rate: With respect to any Distribution Date, a
per annum rate equal to the excess of (i) the Adjustable Net Rate for such
date over (ii) the product of two and a fraction, the numerator of which is
the product of (x) the Adjustable Rate Standard Rate and (y) the principal
balance of the Class T2-V2 Interest immediately prior to such Distribution
Date, and the denominator of which is the sum of the principal balances of the
Class T2-V2 and Class T2-V3 Interests immediately prior to such Distribution
Date.
Class T3-V2IO Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that has such terms as are described in Section 4.06.
Class T3-V2IO Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T3-V2IO Notional Balance, and (iii) the Class
T3-V2IO Pass-Through Rate.
Class T3-V2IO Notional Balance: A notional principal balance equal as of
any date to the principal balance of the Class T2-V2 Interests for such date.
Class T3-V2IO Pass-Through Rate: With respect to any Distribution Date, a
per annum rate equal to the excess of (i) the Adjustable Rate Standard Rate
for such date over (ii) the product of (x) two and (y) a fraction, the
numerator of which is the product of the Adjustable Rate Standard Rate, and
the denominator of which is the sum of the principal balances of the Class
T2-V2 and Class T2-V3 Interests immediately prior to such Distribution Date.
Class T3-V3IO Interest: A regular interest in REMIC 3 held as an asset of
REMIC 4 that is entitled to receive 100% of the amounts distributable with
respect to the Class T2-V4 Interest, and has such terms as are described in
Section 4.06.
Class T3-VOC Interest: A regular interest in REMIC 3 that is held as an
asset of REMIC 4 that will exist and have a principal balance to the extent of
the excess of (i) the aggregate Stated Principal Balance of the Adjustable
Rate Mortgage Loans as of the Cutoff Date over (ii) the aggregate Certificate
Principal Balance of the Class AV-1, Class AV-2, Class MV-1, Class MV-2 and
Class BV Certificates on the Closing Date. The Class T3-VOC Interest will bear
interest at the Adjustable Rate Standard Rate. Interest on the Class T3-VOC
Interest will accrue and be paid with principal on the Class T3-VOC Interest
following the reduction of the Certificate Principal Balances of the Class
AV-1, Class AV-2, Class MV-1, Class MV-2, Class BV Certificates to zero.
Class T4-F1 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $102,600,000 and bears interest at the lesser of (i) the
Class AF-1 Pass-Through Rate and (ii) the Fixed Net Rate. Ownership of the
Class T4-F1 Interest is evidenced by the Class AF-1 Certificates.
Class T4-F2 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $23,700,000 and bears interest at the lesser of (i) the
Class AF-2 Pass-Through Rate and (ii) the Fixed Net Rate. Ownership of the
Class T4-F2 Interest is evidenced by the Class AF-2 Certificates.
Class T4-F3 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $61,800,000 and bears interest at the lesser of (i) the
Class AF-3 Pass-Through Rate and (ii) the Fixed Net Rate. Ownership of the
Class T4-F3 Interest is evidenced by the Class AF-3 Certificates.
Class T4-F4 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $31,000,000 and bears interest at the lesser of (i) the
Class AF-4 Pass-Through Rate and (ii) the Fixed Net Rate. Ownership of the
Class T4-F4 Interest is evidenced by the Class AF-4 Certificates.
Class T4-F5 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $33,620,000 and bears interest at the lesser of (i) the
Class AF-5 Pass-Through Rate and (ii) the Fixed Net Rate. Ownership of the
Class T4-F5 Interest is evidenced by the Class AF-5 Certificates.
Class T4-F6 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $31,200,000 and bears interest at the lesser of (i) the
Class AF-6 Pass-Through Rate and (ii) the Fixed Net Rate. Ownership of the
Class T4-F6 Interest is evidenced by the Class AF-6 Certificates.
Class T4-F7 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $9,360,000 and bears interest at the lesser of (i) the
Class MF-1 Pass-Through Rate and (ii) the Fixed Net Rate. Ownership of the
Class T4-F7 Interest is evidenced by the Class MF-1 Certificates.
Class T4-F8 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $9,360,000 and bears interest at the Class MF-2
Pass-Through Rate. Ownership of the Class T4-F8 Interest is evidenced by the
Class MF-2 Certificates.
Class T4-F9 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $9,360,000 and bears interest at the Class BF
Pass-Through Rate and the Fixed Rate Net Rate. Ownership of the Class T4-F9
Interest is evidenced by the Class BF Certificates.
Class T4-F1IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-F1 Interest in excess of the
interest accruals on the Class T4-F1 Interest. Ownership of the Class T4-F1IO
Interest is represented by the Class BF-IO Certificates.
Class T4-F2IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-F2 Interest in excess of the
interest accruals on the Class T4-F2 Interest. Ownership of the Class T4-F2IO
Interest is evidenced by the Class BF-IO Certificates.
Class T4-F3IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-F3 Interest in excess of the
interest accruals on the Class T4-F3 Interest. Ownership of the Class T4-F3IO
Interest is evidenced by the Class BF-IO Certificates.
Class T4-F4IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-F4 Interest in excess of the
interest accruals on the Class T4-F4 Interest. Ownership of the Class T4-F4IO
Interest is evidenced by the Class BF-IO Certificates.
Class T4-F5IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-F5 Interest in excess of the
interest accruals on the Class T4-F5 Interest. Ownership of the Class T4-F5IO
Interest is evidenced by the Class BF-IO Certificates.
Class T4-F6IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-F6 Interest in excess of the
interest accruals on the Class T4-F6 Interest. Ownership of the Class T4-F6IO
Interest is evidenced by the Class BF-IO Certificates.
Class T4-F7IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-F7 Interest in excess of the
interest accruals on the Class T4-F7 Interest. Ownership of the Class T4-F7IO
Interest is evidenced by the Class BF-IO Certificates.
Class T4-F8IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-F8 Interest in excess of the
interest accruals on the Class T4-F8 Interest. Ownership of the Class T4-F8IO
Interest is evidenced by the Class BF-IO Certificates.
Class T4-F9IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the amounts distributable on the Class T3-F1IO, Class T3-F2IO, Class
T3-F3IO, and Class T3-FOC Interests. The Class TF-9IO Interest is represented
by the Class BF-IO Certificates.
Class T4-V1 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $161,460,000 and that bears interest at the lesser of (i)
the Class AV-1 Pass-Through Rate and (ii) the Adjustable Net Rate. Ownership
of the Class T4-V1 Interest is evidenced by the Class AV-1 Certificates.
Class T4-V2 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $600,000,000 and that bears interest at the lesser of (i)
the Class AV-2 Pass-Through Rate and (ii) the Adjustable Net Rate. Ownership
of the Class T4-V2 Interest is evidenced by the Class AV-2 Certificates.
Class T4-V3 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $57,720,000 and that bears interest at the lesser of (i)
the Class MV-1 Pass-Through Rate and (ii) the Adjustable Net Rate. Ownership
of the Class T4-V3 Interest is evidenced by the Class MV-1 Certificates.
Class T4-V4 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $33,300,000 and that bears interest at the lesser of (i)
the Class MV-2 Pass-Through Rate and (ii) the Adjustable Net Rate. Ownership
of the Class T4-V4 Interest is evidenced by the Class MV-2 Certificates.
Class T4-V5 Interest: A regular interest in REMIC 4 that has an initial
principal balance of $35,520,000 and that bears interest at the lesser of the
Class BV Pass-Through Rate and (ii) the Adjustable Net Rate. Ownership of the
Class T4-V5 Interest is evidenced by the Class BV Certificates.
Class T4-V1IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-V1 Interest in excess of the
interest accruals on the Class T4-V1 Interest. Ownership of the Class T4-V1IO
Interest is evidenced by the Class BV-IO Certificates.
Class T4-V2IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-V2 Interest in excess of the
interest accruals on the Class T4-V2 Interest. Ownership of the Class T4-V2IO
Interest is evidenced by the Class BV-IO Certificates.
Class T4-V3IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-V3 Interest in excess of the
interest accruals on the Class T4-V3 Interest. Ownership of the Class T4-V3IO
Interest is evidenced by the Class BV-IO Certificates.
Class T4-V4IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the interest accruals on the Class T3-V4 Interest in excess of the
interest accruals on the Class T4-V4 Interest. Ownership of the Class T4-V4IO
Interest is evidenced by the Class BV-IO Certificates.
Class T4-V5IO Interest: A regular interest in REMIC 4 that is entitled to
100% of the amounts distributable with respect to the Class T3-V1IO, Class
T3-V2IO, Class T3-V3IO, and Class T3-VOC Interests. The Class T3-V5IO Interest
is evidenced by the Class BV-IO Certificates.
Fixed Rate Adjusted Overcollateralization Amount: For any Distribution
Date, the excess of (a) the Stated Principal Balance for such Distribution
Date of the Fixed Rate Mortgage Loans over (b) the aggregate principal balance
of the Class T3-F1, Class T3-F2, Class T3-F3, Class T3-F4, Class T3-F5, Class
T3-F6, Class T3-F7, Class T3-F8, and the Class T3-F9 Interests.
Fixed Rate Adjusted Overcollateralization Release Amount: For any
Distribution Date, the lesser of (a) the Fixed Rate Principal Distribution
Amount with respect to the Fixed Rate Mortgage Loans, and (b) the amount, if
any, by which the Fixed Rate Adjusted Overcollateralization Amount for such
date, calculated for this purpose on the basis of the assumption that 100% of
the Fixed Rate Principal Distribution Amount for such date is applied on such
date in reduction of the principal balances of the Class T3-F1, Class T3-F2,
Class T3-F3, Class T3-F4, Class T3-F5, Class T3-F6, Class T3-F7, Class T3-F8,
and the Class T3-F9 Interests, exceeds the Fixed Rate Specified
Overcollateralization Amount.
Fixed Net Rate: The weighted average Net Mortgage Rate for Fixed Rate
Mortgage Loans. The Fixed Net Rate in respect of the first Distribution Date
shall be 9.977%.
Fixed Rate Standard Rate: The lesser of (i) the greatest of (A) 8.60% and
(B) the Class A-5 Pass-Through Rate and (C) One-Month LIBOR plus the Class
AF-1 Margin and (ii) the Fixed Net Rate.
REMIC: As described in the Preliminary Statements, which term shall mean
"real estate mortgage investment conduit" within the meaning of section 860D
of the Code.
REMIC BTF: As described in the Preliminary Statement.
REMIC BTV: As described in the Preliminary Statement.
REMIC 1: As described in the Preliminary Statement.
REMIC 2: As described in the Preliminary Statement.
REMIC 3: As described in the Preliminary Statement.
REMIC 4: As described in the Preliminary Statement.
REMIC BTF Regular Interests: As described in the Preliminary Statement.
REMIC BTV Regular Interests: As described in the Preliminary Statement.
REMIC 1 Regular Interests: As described in the Preliminary Statement.
REMIC 2 Regular Interests: As described in the Preliminary Statement.
REMIC 3 Regular Interests: As described in the Preliminary Statement.
REMIC 4 Regular Interests: As described in the Preliminary Statement.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final regulations and published rulings, notices
and announcements promulgated thereunder, as the foregoing may be in effect
from time to time as well as provisions of applicable state laws.
Upper Tier REMIC: As described in the Preliminary Statement.
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Seller hereby sells, transfers, assigns, sets over and otherwise
conveys to the Depositor, without recourse, all the right, title and interest
of the Seller in and to the Initial Mortgage Loans, including all interest and
principal received and receivable by the Seller on or with respect to the
Initial Mortgage Loans on and after the Initial Cut-off Date (to the extent
not applied in computing the Cut-off Date Principal Balance thereof) or
deposited into the Certificate Account by the Seller as an Initial Certificate
Account Deposit as provided in this Agreement, other than principal due on the
Initial Mortgage Loans prior to the Initial Cut-off Date and interest accruing
prior to the Initial Cut-off Date. The Seller confirms that, concurrently with
the transfer and assignment, it has deposited into the Certificate Account the
Initial Certificate Account Deposit.
Immediately upon the conveyance of the Initial Mortgage Loans referred to
in the preceding paragraph, the Depositor sells, transfers, assigns, sets over
and otherwise conveys to the Trustee for benefit of the Certificateholders,
without recourse, all right title and interest in the Initial Mortgage Loans.
(b) Subject to the execution and delivery of the related Subsequent
Transfer Agreement as provided by Section 2.01(d) and the terms and conditions
of this Agreement, the Seller sells, transfers, assigns, sets over and
otherwise conveys to the Depositor, without recourse, on each Subsequent
Transfer Date, all the right, title and interest of the Seller in and to the
related Subsequent Mortgage Loans, including all interest and principal
received and receivable by the Seller on or with respect to such Subsequent
Mortgage Loans on and after the related Subsequent Cut-off Date (to the extent
not applied in computing the Cut-off Date Principal Balance thereof) or
deposited into the Certificate Account by the Seller as a Subsequent
Certificate Account Deposit as provided in this Agreement, other than
principal due on such Subsequent Mortgage Loans prior to the related
Subsequent Cut-off Date and interest accruing prior to the related Subsequent
Cut-off Date.
Immediately upon the conveyance of the Subsequent Mortgage Loans referred
to in the preceding paragraph, the Depositor sells, transfers, assigns, sets
over and otherwise conveys to the Trustee for benefit of the
Certificateholders, without recourse, all right title and interest in the
Subsequent Mortgage Loans.
(c) The Seller has entered into this Agreement in consideration for the
purchase of the Mortgage Loans by the Depositor and has agreed to take the
actions specified herein. The Depositor, concurrently with the execution and
delivery of this Agreement, hereby sells, transfers, assigns and otherwise
conveys to the Trustee for the use and benefit of the Certificateholders,
without recourse, all right title and interest in the portion of the Trust
Fund not otherwise conveyed to the Trust Fund pursuant to Sections 2.01(a) or
(b).
(d) On (x) February 29, 2000 and (y), upon five Business Days written
notice to the Trustee, the Depositor, the Master Servicer (if the Master
Servicer is not the Seller) and the Rating Agencies, on any other Business Day
during the Funding Period designated by the Seller: the Depositor, the Trustee
and the Seller shall complete, execute and deliver a Subsequent Transfer
Agreement. After the execution and delivery of such Subsequent Transfer
Agreement, on the Subsequent Transfer Date, the Trustee shall set aside in the
Pre-Funding Account an amount equal to the related Subsequent Transfer Date
Purchase Amount.
(e) The transfer of Subsequent Mortgage Loans on the a Subsequent
Transfer Date is subject to the satisfaction of each of the following
conditions:
(i) the Trustee will be provided Opinions of Counsel
addressed to the Rating Agencies as with respect to the sale of the
Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date
(such opinions being substatially similar to the opinions delivered
on the Closing Date to the Rating Agencies with with respect to the
sale of the Initial Mortgage Loans on the Closing Date), to be
delivered as provided in Section 2.01(f);
(ii) the execution and delivery of such Subsequent Transfer
Agreement or conveyance of the related Subsequent Mortgage Loans does
not result in a reduction or withdrawal of the any ratings assigned
to the Certificates by the Ratings Agencies;
(iii) the Depositor shall deliver to the Trustee an
Officer's Certificate confirming the satisfaction of each of the
conditions set forth in this Section 2.01(e) required to be satisfied
by such Subsequent Funding Date;
(iv) each Subsequent Mortgage Loan conveyed on such
Subsequent Transfer Date satisfies the representations and warranties
applicable to it under this Agreement, provided, however, that with
respect to a breach of a representation and warranty with respect to
a Subsequent Mortgage Loan set forth in this clause (iv), the
obligation under Section 2.03(e) of this Agreement of the Seller to
cure, repurchase or replace such Subsequent Mortgage Loan shall
constitute the sole remedy against the Seller respecting such breach
available to Certificateholders, the Depositor or the Trustee.
(v) the Subsequent Mortgage Loans conveyed on such
Subsequent Transfer Date were selected in a manner reasonably
believed not to be adverse to the interests of the
Certificateholders;
(vi) no Subsequent Mortgage Loan conveyed on such Subsequent
Transfer Date was 60 or more days delinquent;
(vii) each Subsequent Mortgage Loan conveyed on such
Subsequent Transfer Date that is an Adjustable Rate Mortgage Loan is
secured by a first lien on the related Mortgaged Property;
(viii) following the conveyance of the Subsequent Mortgage
Loans on such Subsequent Transfer Date to the related Loan Group or
Subgroup, as applicable, the characteristics of such Loan Group or
Subgroup will not vary by more than 10% from the characteristics
listed below (which characteristics listed below are the
characteristics of the related Statistical Calculation Loan Group or
Subgroup); provided that for the purpose of making such calculations,
the characteristics for any Initial Mortgage Loan made will be taken
as of the Initial Cut-off Date and the characteristics for any
Subsequent Mortgage Loans will be taken as of the Subsequent Cut-off
Date:
Fixed Rate Loan Group:
Average Principal Balance:............................... $74,300.48
Weighted Average Mortgage Rate:.......................... 10.477%
Weighted Average Combined Loan-to-Value Ratio:........... 73.23%
Weighted Average Amortization Remaining Term to Maturity: 328 months
Loan Subgroup 1A:
Average Principal Balance:............................... $227,018.65
Weighted Average Mortgage Rate:.......................... 9.586%
Weighted Average Combined Loan-to-Value Ratio:........... 77.81%
Weighted Average Scheduled Remaining Term to Maturity:... 358 months
Loan Subgroup 2A:
Average Principal Balance:............................... $98,852.16
Weighted Average Mortgage Rate:.......................... 9.754%
Weighted Average Combined Loan-to-Value Ratio:........... 77.27%
Weighted Average Scheduled Remaining Term to Maturity:... 358 months
and
(ix) neither the Seller nor the Depositor is insolvent and
neither the the Seller nor the Depositor will be rendered insolvent
by the conveyance of Subsequent Mortgage Loans on such Subsequent
Transfer Date.
The Trustee shall not be required to investigate or otherwise verify
compliance with these conditions, except for its own receipt of documents
specified above, and shall be entitled to rely on the required Officer's
Certificate.
(f) Within five Business Days after each Subsequent Transfer Date, upon
(1) delivery to the Trustee by the Depositor of the Opinions of Counsel of
referred to in Section 2.01(e)(i), (2) delivery to the Trustee by the Seller
of a Loan Number and Borrower Identification Mortgage Loan Schedule reflecting
the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date and
(3) delivery to the Trustee by the Depositor of an Officer's Certificate
confirming the satisfaction of each of the conditions precedent set forth in
this Section 2.01(f), the Trustee shall pay the Seller the Subsequent Transfer
Date Transfer Amount from such funds that were set aside in the Pre-Funding
Account pursuant to Section 2.01(d). The positive difference, if any, between
the Subsequent Transfer Date Transfer Amount and the Subsequent Transfer Date
Aggregate Purchase Amount shall be re-invested by the Trustee in the
Pre-Funding Account.
The Trustee shall not be required to investigate or otherwise verify
compliance with the conditions set forth in the preceding paragraph, except
for its own receipt of documents specified above, and shall be entitled to
rely on the required Officer's Certificate.
Within thirty days after each Subsequent Transfer Date, the Depositor
shall deliver to the Trustee a letter of a nationally recognized firm of
independent public accountants stating whether or not the Subsequent Mortgage
Loans conveyed on such Subsequent Transfer Date conform to the characteristics
described in Section 2.01(e)(vi), (vii) and (viii).
(g) In connection with the transfer and assignment of each Mortgage Loan,
the Depositor has delivered to, and deposited with, the Trustee (or, in the
case of the Delay Delivery Mortgage Loans, will deliver to, and deposit with,
the Trustee within the time periods specified in the definition of Delay
Delivery Mortgage Loans) (except as provided in clause (vi) below) for the
benefit of the Certificateholders, the following documents or instruments with
respect to each such Mortgage Loan so assigned (with respect to each Mortgage
Loan, clause (i) through (vi) below, together, the "Mortgage File" for each
such Mortgage Loan):
(i) the original Mortgage Note, endorsed by the
Seller or the originator of such Mortgage Loan, without recourse, in
the following form: "Pay to the order of ________________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if the
original Mortgage Note has been lost or destroyed and not replaced,
an original lost note affidavit from the Seller, stating that the
original Mortgage Note was lost or destroyed, together with a copy of
the related Mortgage Note;
(ii) in the case of each Mortgage Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage, and in the case
of each MERS Mortgage Loan, the original Mortgage, noting the
presence of the MIN of the Mortgage Loan and language indicating that
the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan,
with evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which such
Mortgage has been recorded;
(iii) in the case of each Mortgage Loan that is not a
MERS Mortgage Loan, a duly executed assignment of the Mortgage to
"The Bank of New York, a New York banking corporation, as trustee
under the Pooling and Servicing Agreement dated as of February 1,
2000, CWABS, Inc., Asset-Backed Certificates, Series 2000-1, without
recourse" (each such assignment, when duly and validly completed, to
be in recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments
of the Mortgage together with all interim recorded assignments of
such Mortgage (noting the presence of a MIN in the case of each MERS
Mortgage Loan);
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vi) the original or duplicate original lender's title
policy and all riders thereto or, in the event such original title
policy has not been received from the insurer, such original or
duplicate original lender's title policy and all riders thereto shall
be delivered within one year of the Closing Date.
In addition, in connection with the assignment of any MERS Mortgage Loan,
the Seller agrees that it will cause, at the Seller's own expense, the MERS(R)
System to indicate (and provide evidence to the Trustee that it has done so)
that such Mortgage Loans have been assigned by the Seller to the Trustee in
accordance with this Agreement (and any Subsequent Transfer Agreement, as
applicable) for the benefit of the Certificateholders by including (or
deleting, in the case of Mortgage Loans which are repurchased in accordance
with this Agreement) in such computer files (a) the code "[IDENTIFY TRUSTEE
SPECIFIC CODE]" in the field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which
identifies the Trustee and (b) the code "[IDENTIFY SERIES SPECIFIC CODE
NUMBER]" in the field "Pool Field" which identifies the series of the
Certificates issued in connection with such Mortgage Loans. The Seller further
agrees that it will not, and will not permit the Master Servicer to, and the
Master Servicer agrees that it will not, alter the codes referenced in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the
terms of this Agreement.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Seller cannot deliver the original recorded Mortgage or all
interim recorded assignments of the Mortgage satisfying the requirements of
clause (ii), (iii) or (iv) concurrently with the execution and delivery
hereof, the Seller shall deliver or cause to be delivered to the Trustee a
true copy of such Mortgage and of each such undelivered interim assignment of
the Mortgage each certified by the Seller, the applicable title company,
escrow agent or attorney, or the originator of such Mortgage, as the case may
be, to be a true and complete copy of the original Mortgage or assignment of
Mortgage submitted for recording. For any such Mortgage Loan that is not a
MERS Mortgage Loan the Seller shall promptly deliver or cause to be delivered
to the Trustee such original Mortgage and such assignment or assignments with
evidence of recording indicated thereon upon receipt thereof from the public
recording official, or a copy thereof, certified, if appropriate, by the
relevant recording office, but in no event shall any such delivery be made
later than 270 days following the Closing Date; provided that in the event
that by such date the Seller is unable to deliver or cause to be delivered
each such Mortgage and each interim assignment by reason of the fact that any
such documents have not been returned by the appropriate recording office, or,
in the case of each interim assignment, because the related Mortgage has not
been returned by the appropriate recording office, the Seller shall deliver or
cause to be delivered such documents to the Trustee as promptly as possible
upon receipt thereof. If the public recording office in which a Mortgage or
interim assignment thereof is recorded retains the original of such Mortgage
or assignment, a copy of the original Mortgage or assignment so retained, with
evidence of recording thereon, certified to be true and complete by such
recording office, shall satisfy the Seller's obligations in Section 2.01. If
any document submitted for recording pursuant to this Agreement is (x) lost
prior to recording or rejected by the applicable recording office, the Seller
shall immediately prepare or cause to be prepared a substitute and submit it
for recording, and shall deliver copies and originals thereof in accordance
with the foregoing or (y) lost after recording, the Seller shall deliver to
the Trustee a copy of such document certified by the applicable public
recording office to be a true and complete copy of the original recorded
document. The Seller shall promptly forward or cause to be forwarded to the
Trustee (x) from time to time additional original documents evidencing an
assumption or modification of a Mortgage Loan and (y) any other documents
required to be delivered by the Depositor or the Master Servicer to the
Trustee within the time periods specified in this Section 2.01.
With respect to each Mortgage Loan other than a MERS Mortgage Loan as to
which the related Mortgaged Property and Mortgage File are located in (a) the
State of California or (b) any other jurisdiction under the laws of which the
recordation of the assignment specified in clause (iii) above is not necessary
to protect the Trustee's and the Certificateholders, interest in the related
Mortgage Loan, as evidenced by an Opinion of Counsel, delivered by the Seller
to the Trustee and a copy to the Rating Agencies, in lieu of recording the
assignment specified in clause (iii) above, the Seller may deliver an
unrecorded assignment in blank, in form otherwise suitable for recording to
the Trustee; provided that if the related Mortgage has not been returned from
the applicable public recording office, such assignment, or any copy thereof,
of the Mortgage may exclude the information to be provided by the recording
office. As to any Mortgage Loan other than a MERS Mortgage Loan, the
procedures of the preceding sentence shall be applicable only so long as the
related Mortgage File is maintained in the possession of the Trustee in the
State or jurisdiction described in such sentence. In the event that with
respect to Mortgage Loans other than MERS Mortgage Loans (i) the Seller, the
Depositor or the Master Servicer gives written notice to the Trustee that
recording is required to protect the right, title and interest of the Trustee
on behalf of the Certificateholders in and to any Mortgage Loan, (ii) a court
recharacterizes the sale of the Mortgage Loans as a financing, or (iii) as a
result of any change in or amendment to the laws of the State or jurisdiction
described in the first sentence of this paragraph or any applicable political
subdivision thereof, or any change in official position regarding application
or interpretation of such laws, including a holding by a court of competent
jurisdiction, such recording is so required, the Trustee shall complete the
assignment in the manner specified in clause (iii) of the second paragraph of
this Section 2.01 and the Seller shall submit or cause to be submitted for
recording as specified above or, should the Seller fail to perform such
obligations, the Trustee shall cause the Master Servicer, at the Master
Servicer's expense, to cause each such previously unrecorded assignment to be
submitted for recording as specified above. In the event a Mortgage File is
released to the Master Servicer as a result of the Master Servicer's having
completed a Request for Release in the form of Exhibit M, the Trustee shall
complete the assignment of the related Mortgage in the manner specified in
clause (iii) of the second paragraph of this Section 2.01.
So long as the Trustee maintains an office in the State of California,
the Trustee shall maintain possession of and not remove or attempt to remove
from the State of California any of the Mortgage Files as to which the related
Mortgaged Property is located in such State. In the event that the Seller
fails to record an assignment of a Mortgage Loan as herein provided within 90
days of notice of an event set forth in clause (i), (ii) or (iii) of the above
paragraph, the Master Servicer shall prepare and, if required hereunder, file
such assignments for recordation in the appropriate real property or other
records office. The Seller hereby appoints the Master Servicer (and any
successor servicer hereunder) as its attorney-in-fact with full power and
authority acting in its stead for the purpose of such preparation, execution
and filing.
In the case of Mortgage Loans that become the subject of a Principal
Prepayment between the Closing Date (in the case of Initial Mortgage Loans) or
Subsequent Transfer Date (in the case of Subsequent Mortgage Loans) and the
Cut-off Date, the Seller shall deposit or cause to be deposited in the
Certificate Account the amount required to be deposited therein with respect
to such payment pursuant to Section 3.05 hereof.
Notwithstanding anything to the contrary in this Agreement, within thirty
days after the Closing Date (in the case of Initial Mortgage Loans) or
Subsequent Transfer Date (in the case of Subsequent Mortgage Loans), the
Seller shall either (i) deliver to the Trustee the Mortgage File as required
pursuant to this Section 2.01 for each Delay Delivery Mortgage Loan or (ii)
(A) repurchase the Delay Delivery Mortgage Loan or (B) substitute the Delay
Delivery Mortgage Loan for a Replacement Mortgage Loan, which repurchase or
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03, provided that if the Seller fails to deliver a
Mortgage File for any Delay Delivery Mortgage Loan within the period provided
in the prior sentence, the cure period provided for in Section 2.02 or in
Section 2.03 shall not apply to the initial delivery of the Mortgage File for
such Delay Delivery Mortgage Loan, but rather the Seller shall have five (5)
Business Days to cure such failure to deliver. The Seller shall promptly
provide each Rating Agency with written notice of any cure, repurchase or
substitution made pursuant to the proviso of the preceding sentence. On or
before the thirtieth (30th) day (or if such thirtieth day is not a Business
Day, the succeeding Business Day) after the Closing Date (in the case of
Initial Mortgage Loans) or Subsequent Transfer Date (in the case of Subsequent
Mortgage Loans), the Trustee shall, in accordance with the provisions of
Section 2.02, send a Delay Delivery Certification substantially in the form
annexed hereto as Exhibit G-3 (with any applicable exceptions noted thereon)
for all Delay Delivery Mortgage Loan delivered within thirty (30) days after
such date. The Trustee will promptly send a copy of such Delay Delivery
Certification to each Rating Agency.
Section 2.02. Acceptance by Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt, subject to the limitations
contained in and any exceptions noted in the Initial Certification in the form
annexed hereto as Exhibit G-1 and in the list of exceptions attached thereto,
of the documents referred to in clauses (i) and (iii) of Section 2.01(g) above
with respect to the Initial Mortgage Loans and all other assets included in
the Trust Fund and declares that it holds and will hold such documents and the
other documents delivered to it constituting the Mortgage Files, and that it
holds or will hold such other assets included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and the Seller an Initial Certification
substantially in the form annexed hereto as Exhibit G-1 to the effect that, as
to each Initial Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Initial Mortgage Loan paid in full or any Initial Mortgage Loan
specifically identified in such certification as not covered by such
certification), the documents described in Section 2.01(g)(i) and, in the case
of each Mortgage Loan that is not a MERS Mortgage Loan, the documents
described in Section 2.01(g)(iii), with respect to such Initial Mortgage Loan
are in its possession, and based on its review and examination and only as to
the foregoing documents, such documents appear regular on their face and
relate to such Initial Mortgage Loan. The Trustee agrees to execute and
deliver within 30 days after the Closing Date to the Depositor, the Master
Servicer and the Seller an Interim Certification substantially in the form
annexed hereto as Exhibit G-2 to the effect that, as to each Initial Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Initial Mortgage
Loan paid in full or any Initial Mortgage Loan specifically identified in such
certification as not covered by such certification), all documents required to
be delivered to it pursuant to this Agreement with respect to such Initial
Mortgage Loan are in its possession (except those described in Section
2.01(g)(vi)) and based on its review and examination and only as to the
foregoing documents, (i) such documents appear regular on their face and
relate to such Initial Mortgage Loan, and (ii) the information set forth in
items (i), (iv), (v), (vi), (viii), (xi) and (xiv) of the definition of the
"Mortgage Loan Schedule" accurately reflects information set forth in the
Mortgage File. On or before the thirtieth (30th) day after the Closing Date
(or if such thirtieth day is not a Business Day, the succeeding Business Day),
the Trustee shall deliver to the Depositor, the Master Servicer and the Seller
a Delay Delivery Certification with respect to the Initial Mortgage Loans
substantially in the form annexed hereto as Exhibit G-3, with any applicable
exceptions noted thereon. The Trustee shall be under no duty or obligation to
inspect, review or examine such documents, instruments, certificates or other
papers to determine that the same are genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
Not later than 180 days after the Closing Date, the Trustee shall deliver
to the Depositor, the Master Servicer and the Seller (and to any
Certificateholder that so requests) a Final Certification with respect to the
Initial Mortgage Loans substantially in the form annexed hereto as Exhibit
H-1, with any applicable exceptions noted thereon.
In connection with the Trustee's completion and delivery of such Final
Certification, the Trustee shall review each Mortgage File with respect to the
Initial Mortgage Loans to determine that it contains the following documents:
(i) the original Mortgage Note, endorsed by the Seller or
the originator of such Mortgage Loan, without recourse, in the
following form: "Pay to the order of ________________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if the
original Mortgage Note has been lost or destroyed and not replaced,
an original lost note affidavit from the Seller, stating that the
original Mortgage Note was lost or destroyed, together with a copy of
the related Mortgage Note;
(ii)in the case of each Initial Mortgage Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage, and in the case
of each Initial Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting the presence of the MIN of the Initial
Mortgage Loan and language indicating that the Initial Mortgage Loan
is a MOM Loan if the Initial Mortgage Loan is a MOM Loan, with
evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which Mortgage has been
recorded;
(iii) in the case of each Initial Mortgage Loan that is
not a MERS Mortgage Loan, a duly executed assignment of the Mortgage
in the form permitted by Section 2.01;
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of such
Mortgage (noting the presence of a MIN in the case of each MERS
Mortgage Loan);
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vi)the original or duplicate original lender's title policy
and all riders thereto if delivered pursuant to Section 2.02(d)(vi)
(otherwise such original or duplicate original lender's title policy
and all riders thereto shall be held in the Mortgage File upon
delivery as provided in such Section).
If, in the course of such review, the Trustee finds any document or
documents constituting a part of such Mortgage File that do not meet the
requirements of clauses (i)-(iv) and (vi) above, the Trustee shall include
such exceptions in such Final Certification (and Trustee shall state in such
Final Certification whether any Mortgage File does not then include the
original or duplicate original lender's title policy and all riders thereto).
If the public recording office in which a Mortgage or assignment thereof is
recorded retains the original of such Mortgage or assignment, a copy of the
original Mortgage or assignment so retained, with evidence of recording
thereon, certified to be true and complete by such recording office, shall be
deemed to satisfy the requirements of clause (ii), (iii) or (iv) above, as
applicable. The Seller shall promptly correct or cure such defect referred to
above within 90 days from the date it was so notified of such defect and, if
the Seller does not correct or cure such defect within such period, the Seller
shall either (A) if the time to cure such defect expires prior to the end of
the second anniversary of the Closing Date, substitute for the related Initial
Mortgage Loan a Replacement Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.03, or (B) purchase such Initial Mortgage Loan from the Trustee within 90
days from the date the Seller was notified of such defect in writing at the
Purchase Price of such Mortgage Loan; provided that any such substitution
pursuant to (A) above or repurchase pursuant to (B) above shall not be
effected prior to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.05 hereof and any substitution pursuant to (A) above
shall not be effected prior to the additional delivery to the Trustee of a
Request for Release substantially in the form of Exhibit N. No substitution
will be made in any calendar month after the Determination Date for such
month. The Purchase Price for any such Initial Mortgage Loan shall be
deposited by the Seller in the Certificate Account and, upon receipt of such
deposit and certification with respect thereto in the form of Exhibit N
hereto, the Trustee shall release the related Mortgage File to the Seller and
shall execute and deliver at the Seller's request such instruments of transfer
or assignment as the Seller has prepared, in each case without recourse, as
shall be necessary to vest in the Seller, or a designee, the Trustee's
interest in any Mortgage Loan released pursuant hereto. If pursuant to the
foregoing provisions the Seller repurchases an Initial Mortgage Loan that is a
MERS Mortgage Loan, the Master Servicer shall cause MERS to execute and
deliver an assignment of the 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.
The Trustee shall retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions set forth herein. The
Seller shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting the
Mortgage File that come into the possession of the Seller from time to time.
It is understood and agreed that the obligation of the Seller to
substitute for or to purchase any Mortgage Loan that does not meet the
requirements of Section 2.02(a)(A) or (B) above shall constitute the sole
remedy respecting such defect available to the Trustee, the Depositor, and any
Certificateholder against the Seller.
(b) The Trustee agrees to execute and deliver within 30 days after the
Subsequent Transfer Date to the Depositor, the Master Servicer and the Seller
an Interim Certification substantially in the form annexed hereto as Exhibit
G-2 to the effect that, as to each Subsequent Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Subsequent Mortgage Loan paid in full
or any Subsequent Mortgage Loan specifically identified in such certification
as not covered by such certification), all documents required to be delivered
to it pursuant to this Agreement with respect to such Subsequent Mortgage Loan
are in its possession (except those described in Section 2.01(g)(vi)) and
based on its review and examination and only as to the foregoing documents,
(i) such documents appear regular on their face and relate to such Subsequent
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (v),
(vi), (viii) and (xiv) of the definition of the "Mortgage Loan Schedule"
accurately reflects information set forth in the Mortgage File. On or before
the thirtieth (30th) day after the Subsequent Transfer Date (or if such
thirtieth day is not a Business Day, the succeeding Business Day), the Trustee
shall deliver to the Depositor, the Master Servicer and the Seller a Delay
Delivery Certification with respect to the Subsequent Mortgage Loans
substantially in the form annexed hereto as Exhibit G-3, with any applicable
exceptions noted thereon. The Trustee shall be under no duty or obligation to
inspect, review or examine such documents, instruments, certificates or other
papers to determine that the same are genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
Not later than 180 days after the Subsequent Transfer Date, the Trustee
shall deliver to the Depositor, the Master Servicer and the Seller (and to any
Certificateholder that so requests) a Final Certification with respect to the
Subsequent Mortgage Loans substantially in the form annexed hereto as Exhibit
H-1, with any applicable exceptions noted thereon.
In connection with the Trustee's completion and delivery of such Final
Certification, the Trustee shall review each Mortgage File with respect to the
Subsequent Mortgage Loans to determine that it contains the following
documents:
(i) the original Mortgage Note, endorsed by the Seller or
the originator of such Mortgage Loan, without recourse, in the
following form: "Pay to the order of ________________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if the
original Mortgage Note has been lost or destroyed and not replaced,
an original lost note affidavit from the Seller, stating that the
original Mortgage Note was lost or destroyed, together with a copy of
the related Mortgage Note;
(ii)in the case of each Subsequent Mortgage Loan that is not
a MERS Mortgage Loan, the original recorded Mortgage, and in the case
of each Subsequent Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting the presence of the MIN of the Subsequent
Mortgage Loan and language indicating that the Subsequent Mortgage
Loan is a MOM Loan if the Subsequent Mortgage Loan is a MOM Loan,
with evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which Mortgage
has been recorded;
(iii) in the case of each Subsequent Mortgage Loan that
is not a MERS Mortgage Loan, a duly executed assignment of the
Mortgage in the form permitted by Section 2.01;
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of such
Mortgage (noting the presence of a MIN in the case of each MERS
Mortgage Loan);
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vi)the original or duplicate original lender's title policy
and all riders thereto if delivered pursuant to Section 2.02(d)(vi)
(otherwise such original or duplicate original lender's title policy
and all riders thereto shall be held in the Mortgage File upon
delivery as provided in such Section).
If, in the course of such review, the Trustee finds any document or
documents constituting a part of such Mortgage File that do not meet the
requirements of clauses (i)-(iv) and (vi) above, the Trustee shall include
such exceptions in such Final Certification (and Trustee shall state in such
Final Certification whether any Mortgage File does not then include the
original or duplicate original lender's title policy and all riders thereto).
If the public recording office in which a Mortgage or assignment thereof is
recorded retains the original of such Mortgage or assignment, a copy of the
original Mortgage or assignment so retained, with evidence of recording
thereon, certified to be true and complete by such recording office, shall be
deemed to satisfy the requirements of clause (ii), (iii) or (iv) above, as
applicable. The Seller shall promptly correct or cure such defect referred to
above within 90 days from the date it was so notified of such defect and, if
the Seller does not correct or cure such defect within such period, the Seller
shall either (A) if the time to cure such defect expires prior to the end of
the second anniversary of the Closing Date, substitute for the related
Subsequent Mortgage Loan a Replacement Mortgage Loan, which substitution shall
be accomplished in the manner and subject to the conditions set forth in
Section 2.03, or (B) purchase such Subsequent Mortgage Loan from the Trustee
within 90 days from the date the Seller was notified of such defect in writing
at the Purchase Price of such Subsequent Mortgage Loan; provided that any such
substitution pursuant to (A) above or repurchase pursuant to (B) above shall
not be effected prior to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.05 hereof and any substitution pursuant to (A) above
shall not be effected prior to the additional delivery to the Trustee of a
Request for Release substantially in the form of Exhibit N. No substitution
will be made in any calendar month after the Determination Date for such
month. The Purchase Price for any such Subsequent Mortgage Loan shall be
deposited by the Seller in the Certificate Account and, upon receipt of such
deposit and certification with respect thereto in the form of Exhibit N
hereto, the Trustee shall release the related Mortgage File to the Seller and
shall execute and deliver at the Seller's request such instruments of transfer
or assignment as the Seller has prepared, in each case without recourse, as
shall be necessary to vest in the Seller, or a designee, the Trustee's
interest in any Mortgage Loan released pursuant hereto. If pursuant to the
foregoing provisions the Seller repurchases a Subsequent Mortgage Loan that is
a MERS Mortgage Loan, the Master Servicer shall cause MERS to execute and
deliver an assignment of the 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.
The Trustee shall retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions set forth herein. The
Seller shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting the
Mortgage File that come into the possession of the Seller from time to time.
It is understood and agreed that the obligation of the Seller to
substitute for or to purchase any Mortgage Loan that does not meet the
requirements of Section 2.02(b)(A) or (B) above shall constitute the sole
remedy respecting such defect available to the Trustee, the Depositor, and any
Certificateholder against the Seller.
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Seller.
(a) The Master Servicer hereby represents and warrants to the Depositor
and the Trustee as follows, as of the date hereof with respect to the Initial
Mortgage Loans, and the related Subsequent Transfer Date with respect to the
Subsequent Mortgage Loans:
(i) The Master Servicer is duly organized as a New York
corporation and is validly existing and in good standing under the
laws of the State of New York and is duly authorized and qualified to
transact any and all business contemplated by this Agreement to be
conducted by the Master Servicer in any state in which a Mortgaged
Property is located or is otherwise not required under applicable law
to effect such qualification and, in any event, is in compliance with
the doing business laws of any such state, to the extent necessary to
ensure its ability to enforce each Mortgage Loan, to service the
Mortgage Loans in accordance with the terms of this Agreement and to
perform any of its other obligations under this Agreement in
accordance with the terms hereof.
(ii)The Master Servicer has the full corporate power and
authority to sell and service each Mortgage Loan, and to execute,
deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized
by all necessary corporate action on the part of the Master Servicer
the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes a legal, valid and
binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with its terms, except that (a) the
enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iii) The execution and delivery of this Agreement by
the Master Servicer, the servicing of the Mortgage Loans by the
Master Servicer under this Agreement, the consummation of any other
of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms hereof are in the
ordinary course of business of the Master Servicer and will not (A)
result in a material breach of any term or provision of the charter
or by-laws of the Master Servicer or (B) materially conflict with,
result in a material breach, violation or acceleration of, or result
in a material default under, the terms of any other material
agreement or instrument to which the Master Servicer is a party or by
which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to the Master Servicer of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Master Servicer; and the Master Servicer
is not in breach or violation of any material indenture or other
material agreement or instrument, or in violation of any statute,
order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach
or violation may materially impair the Master Servicer's ability to
perform or meet any of its obligations under this Agreement.
(iv)The Master Servicer is an approved servicer of
conventional mortgage loans for FNMA or FHLMC and is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant
to sections 203 and 211 of the National Housing Act.
(v) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that
would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Master
Servicer to service the Mortgage Loans or to perform any of its other
obligations under this Agreement in accordance with the terms hereof.
(vi)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 any Subsequent Transfer
Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is
required, the Master Servicer has obtained the same.
(vii) The Master Servicer is a member of MERS in good
standing, and will comply in all material respects with the rules and
procedures of MERS in connection with the servicing of the Mortgage
Loans for as long as such Mortgage Loans are registered with MERS.
(b) The Seller hereby represents and warrants to the Depositor and the
Trustee as follows, as of the Initial Cut-off Date in the case of the Initial
Mortgage Loans and as of the related Subsequent Cut-off Date in the case of
the Subsequent Mortgage Loans (unless otherwise indicated or the context
otherwise requires, percentages with respect to the Initial Mortgage Loans in
a Loan Group or Loan Subgroup (as applicable) are measured by the Cut-off Date
Principal Balance of the Initial Mortgage Loans in the related Loan Group or
Loan Subgroup (as applicable)):
(i) The Seller is duly organized as a New York corporation
and is validly existing and in good standing under the laws of the
State of New York and is duly authorized and qualified to transact
any and all business contemplated by this Agreement and each
Subsequent Transfer Agreement to be conducted by the Seller in any
state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in
any event, is in compliance with the doing business laws of any such
state, to the extent necessary to ensure its ability to enforce each
Mortgage Loan, to sell the Mortgage Loans in accordance with the
terms of this Agreement and each Subsequent Transfer Agreement and to
perform any of its other obligations under this Agreement and each
Subsequent Transfer Agreement in accordance with the terms hereof.
(ii)The Seller has the full corporate power and authority to
sell each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by this
Agreement and each Subsequent Transfer Agreement and has duly
authorized by all necessary corporate action on the part of the
Seller the execution, delivery and performance of this Agreement and
each Subsequent Transfer Agreement; and this Agreement and each
Subsequent Transfer Agreement, assuming the due authorization,
execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except
that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating
to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iii) The execution and delivery of this Agreement and
each Subsequent Transfer Agreement by the Seller, the sale of the
Mortgage Loans by the Seller under this Agreement and each Subsequent
Transfer Agreement, the consummation of any other of the transactions
contemplated by this Agreement and each Subsequent Transfer
Agreement, and the fulfillment of or compliance with the terms hereof
and thereof are in the ordinary course of business of the Seller and
will not (A) result in a material breach of any term or provision of
the charter or by-laws of the Seller or (B) materially conflict with,
result in a material breach, violation or acceleration of, or result
in a material default under, the terms of any other material
agreement or instrument to which the Seller is a party or by which it
may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to the Seller of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over the Seller; and the Seller is not in breach or violation of any
material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair
the Seller's ability to perform or meet any of its obligations under
this Agreement and each Subsequent Transfer Agreement.
(iv)The Seller is an approved seller of conventional
mortgage loans for FNMA or FHLMC and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203
and 211 of the National Housing Act.
(v) No litigation is pending or, to the best of the Seller's
knowledge, threatened, against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement and each Subsequent Transfer Agreement or the ability of
the Seller to sell the Mortgage Loans or to perform any of its other
obligations under this Agreement and each Subsequent Transfer
Agreement in accordance with the terms hereof.
(vi)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 and each Subsequent Transfer Agreement or
the consummation of the transactions contemplated hereby, or if any
such consent, approval, authorization or order is required, the
Seller has obtained the same.
(vii) The information set forth on Exhibit F-1 hereto
with respect to each Initial Mortgage Loan is true and correct in all
material respects as of the Closing Date.
(viii) The Seller will treat the transfer of the Mortgage
Loans to the Depositor as a sale of the Mortgage Loans for all tax,
accounting and regulatory purposes.
(ix) None of the Initial Mortgage Loans are
more than 30 days delinquent in payment of principal and interest.
(x) No Fixed Rate Mortgage Loan that is an Initial Mortgage
Loan was secured by a first lien on the related Mortgaged Property
had a Loan-to-Value Ratio at origination in excess of 1.00%; no Fixed
Rate Mortgage Loan that is an Initial Mortgage Loan was secured by a
second lien on the related Mortgaged Property had a Combined
Loan-to-Value Ratio at origination in excess of 1.00%; and no
Adjustable Rate Mortgage Loan that is an Initial Mortgage Loan had a
Loan-to-Value Ratio at origination in excess of 99.51%.
(xi)Each Fixed Rate Mortgage Loan is secured by a valid and
enforceable first or second lien on the related Mortgaged Property
and each Adjustable Rate Mortgage Loan is secured by a valid and
enforceable first lien on the related Mortgaged Property, in each
case subject only to (1) the lien of non-delinquent current real
property taxes and assessments, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage, such exceptions
appearing of record being acceptable to mortgage lending institutions
generally or specifically reflected in the appraisal made in
connection with the origination of the related Mortgage Loan, (3)
other matters to which like properties are commonly subject that do
not materially interfere with the benefits of the security intended
to be provided by such Mortgage and (4) only in the case of each such
Fixed Rate Mortgage Loan which is secured by a valid and enforceable
second lien on the Mortgaged Property, any senior mortgage loan
secured by such Mortgaged Property and identified in the Mortgage
File related to such Mortgage Loan. Approximately 95.46% of the Fixed
Rate Mortgage Loans that are Initial Mortgage Loans and 100% of the
Adjustable Rate Mortgage Loans that are Initial Mortgage Loans were
secured by first liens on the related Mortgaged Properties.
Approximately 4.54% of the Fixed Rate Mortgage Loans that are Initial
Mortgage Loans were secured by second liens on the related Mortgaged
Properties.
(xii) Immediately prior to the assignment of each
Mortgage Loan to the Depositor, the Seller had good title to, and was
the sole owner of, such Mortgage Loan free and clear of any pledge,
lien, encumbrance or security interest and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign the same pursuant to this
Agreement and each Subsequent Transfer Agreement.
(xiii) There is no delinquent tax or assessment lien against
any Mortgaged Property.
(xiv) There is no valid offset, claim, defense or
counterclaim to any Mortgage Note or Mortgage, including the
obligation of the Mortgagor to pay the unpaid principal of or
interest on such Mortgage Note.
(xv)There are no mechanics' liens or claims for work, labor
or material affecting any Mortgaged Property that are or may be a
lien prior to, or equal with, the lien of such Mortgage, except those
that are insured against by the title insurance policy referred to in
item (xix) below.
(xvi) As of the Closing Date in the case of the Initial
Mortgage Loans and as of the related Subsequent Transfer Date in the
case of the Subsequent Mortgage Loans, to the best of the Seller's
knowledge, each Mortgaged Property is free of material damage and is
in good repair.
(xvii) To the best of the Seller's knowledge, the Mortgage
Loans complied at origination in all material respects with
applicable state and federal laws, including, without limitation,
usury, equal credit opportunity, real estate settlement procedures,
truth-in-lending and disclosure laws, and consummation of the
transactions contemplated hereby will not involve the violation of
any such laws.
(xviii) As of the Closing Date in the case of the Initial
Mortgage Loans and as of the related Subsequent Transfer Date in the
case of the Subsequent Mortgage Loans, neither the Seller nor any
prior holder of any Mortgage has modified the Mortgage in any
material respect (except that a Mortgage Loan may have been modified
by a written instrument that has been recorded or submitted for
recordation, if necessary, to protect the interests of the
Certificateholders and the original or a copy of which has been
delivered to the Trustee); satisfied, cancelled or subordinated such
Mortgage in whole or in part; released the related Mortgaged Property
in whole or in part from the lien of such Mortgage; or executed any
instrument of release, cancellation, modification (except as
expressly permitted above) or satisfaction with respect thereto.
(xix) A lender's policy of title insurance together
with a condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date Stated
Principal Balance of each such Mortgage Loan or a commitment (binder)
to issue the same was effective on the date of the origination of
each Mortgage Loan, each such policy is valid and remains in full
force and effect, and each such policy was issued by a title insurer
qualified to do business in the jurisdiction where the Mortgaged
Property is located and acceptable to FNMA or FHLMC and is in a form
acceptable to FNMA or FHLMC, which policy insures the Seller and
successor owners of indebtedness secured by the insured Mortgage, as
to the first priority lien, of the Mortgage subject to the exceptions
set forth in paragraph (iv) above; to the best of the Seller's
knowledge, no claims have been made under such mortgage title
insurance policy and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything that
would impair the coverage of such mortgage title insurance policy.
(xx)No Initial Mortgage Loan was the subject of a Principal
Prepayment in full between the Closing Date and the Initial Cut-off
Date. No Subsequent Mortgage Loan was the subject of a Principal
Prepayment in full between the Subsequent Transfer Date and the
Subsequent Cut-off Date.
(xxi) To the best of the Seller's knowledge, all of the
improvements that were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property.
(xxii) To the best of the Seller's knowledge, no improvement
located on or being part of the Mortgaged Property is in violation of
any applicable zoning law or regulation. To the best of the Seller's
knowledge, all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate authorities, unless the lack thereof would not have a
material adverse effect on the value of such Mortgaged Property, and
the Mortgaged Property is lawfully occupied under applicable law.
(xxiii) The Mortgage Note and the related Mortgage are
genuine, and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms and under
applicable law, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought. To the best of the Seller's knowledge, all parties to the
Mortgage Note and the Mortgage had legal capacity to execute the
Mortgage Note and the Mortgage and each Mortgage Note and Mortgage
have been duly and properly executed by such parties.
(xxiv) The proceeds of the Mortgage Loan have been fully
disbursed, there is no requirement for future advances thereunder,
and any and all requirements as to completion of any on-site or
off-site improvements and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in making, or closing or recording the Mortgage Loans were
paid.
(xxv) The related Mortgage contains customary and
enforceable provisions that render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security, including, (i) in the case
of a Mortgage designated as a deed of trust, by trustee's sale, and
(ii) otherwise by judicial foreclosure.
(xxvi) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by
the Mortgagor.
(xxvii) Each Mortgage Note and each Mortgage is in
substantially one of the forms attached hereto as Exhibit P
acceptable in form to FNMA or FHLMC.
(xxviii) There exist no deficiencies with respect to escrow
deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and no escrow
deposits or payments of other charges or payments due the Seller have
been capitalized under the Mortgage or the related Mortgage Note.
(xxix) The origination, underwriting and collection
practices used by the Seller with respect to each Mortgage Loan have
been in all respects legal, prudent and customary in the mortgage
lending and servicing business.
(xxx) There is no pledged account or other security
other than real estate securing the Mortgagor's obligations.
(xxxi) No Mortgage Loan has a shared appreciation feature,
or other contingent interest feature.
(xxxii) Each Mortgage Loan contains a customary "due on sale"
clause.
(xxxiii) Approximately 0.83% of the Initial Mortgage Loans
in the Loan Subgroup 1A, approximately 3.96% of the Initial Mortgage
Loans in Loan Subgroup 2A and approximately 3.38% of the Fixed Rate
Mortgage Loans that are Initial Mortgage Loans are secured by two- to
four-family dwellings. Approximately 3.95% of the Initial Mortgage
Loans in Loan Subgroup 1A, approximately 3.38% of the Initial
Mortgage Loans in Loan Subgroup 2A and approximately 3.84% of the
Adjustable Rate Mortgage Loans that are Initial Mortgage Loans are
secured by condominium units. Approximately 82.25% of the Initial
Mortgage Loans in Loan Subgroup 1A, approximately 83.34% of the
Initial Mortgage Loans in Loan Subgroup 2A, and approximately 84.54%
of the Fixed Rate Mortgage Loans that are Initial Mortgage Loans are
secured by detached one-family dwellings. Approximately 0.39% of the
Initial Mortgage Loans in Loan Subgroup 1A, approximately 1.67% of
the Initial Mortgage Loans in Loan Subgroup 2A and approximately
1.77% of the Fixed Rate Mortgage Loans that are Initial Mortgage
Loans are secured by manufactured housing. Approximately 13.15% of
the Initial Mortgage Loans in Loan Subgroup 1A, approximately 7.07%
of the Initial Mortgage Loans in Loan Subgroup 2A and approximately
9.98% of the Fixed Rate Mortgage Loans that are Initial Mortgage
Loans are secured by PUDs.
(xxxiv) No Initial Mortgage Loan in Loan Subgroup 1A had a
principal balance in excess of $1,050,000.00 at origination, no
Initial Mortgage Loan in Loan Subgroup 2A had a principal balance in
excess of $412,840.25 at origination and no Fixed Rate Mortgage Loan
that is an Initial Mortgage Loan had a principal balance in excess of
$1,977,278.39 at origination.
(xxxv) Each Initial Mortgage Loan in Loan Subgroup 2A had a
principal balance at origination of no more than: $252,700 if a
single-family property (or $379,050 if the property is located in
Hawaii or Alaska) or $485,800 if a two- to four-family property (or
$728,700 if the property is located in Hawaii or Alaska);
(xxxvi) Each Fixed Rate Mortgage Loan that is an Initial
Mortgage Loan was originated in or after August 31, 1998;
(xxxvii) Each Initial Mortgage Loan in Loan Subgroup 1A was
originated in or after September 23, 1998; each Initial Mortgage Loan
in Loan Subgroup 1A other than a 1/29, 2/28 or 3/27 Mortgage Loan
that is an Initial Mortgage Loan had an initial Adjustment Date no
later than November 30, 1999; each 2/28 Mortgage Loan that is an
Initial Mortgage Loan that is an Initial Mortgage Loan had an initial
Adjustment Date no later than October 1, 2000; each 3/27 Mortgage
Loan that is an Initial Mortgage Loan had an initial Adjustment Date
no later than November 1, 2002.
(xxxviii) Each Initial Mortgage Loan in Loan
Subgroup 2A was originated in or after July 1, 2000; each Initial
Mortgage Loan in Loan Subgroup 2A other than a 1/29, 2/28 or 3/27
Mortgage Loan had an initial Adjustment Date no later than July 1,
2000; each 1/29 Mortgage Loan that is an Initial Mortgage Loan had an
initial Adjustment Date no later than December 1, 2000, each 2/28
Mortgage Loan that is an Initial Mortgage Loan had an initial
Adjustment Date no later than July 1, 2001; each 3/27 Mortgage Loan
that is an Initial Mortgage Loan had an initial Adjustment Date no
later than October 1, 2002.
(xxxix) Approximately 81.12% of the Initial Mortgage Loans
in Loan Subgroup 1A, approximately 85.57% of the Initial Mortgage
Loans in Loan Subgroup 2A and approximately 77.37% of the Fixed Rate
Mortgage Loans that are Initial Mortgage Loans provide for a
prepayment penalty.
(xl)[Reserved]
(xli) On the basis of representations made by the
Mortgagors in their loan applications, no more than approximately
2.75% of the Initial Mortgage Loans in Loan Subgroup 1A and no more
than approximately 4.93% of Initial Mortgage Loans in Loan Subgroup
2A are secured by investor properties, and approximately 96.85% of
the Initial Mortgage Loans in Loan Subgroup 1A and approximately
94.64% of the Initial Mortgage Loans in Loan Subgroup 2A are secured
by owner-occupied Mortgaged Properties that are primary residences.
(xlii) On the basis of representations made by the
Mortgagors in their loan applications, no more than approximately
7.46% of the Fixed Rate Mortgage Loans that are Initial Mortgage
Loans are secured by investor properties, and at least approximately
92.16% of the owner-occupied Fixed Rate Mortgage Loans that are
Initial Mortgage Loans are secured by owner-occupied Mortgaged
Properties that are primary residences.
(xliii) At the Cut-off Date, the improvements upon each
Mortgaged Property are covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides
for fire and extended coverage and coverage for such other hazards as
are customary in the area where the Mortgaged Property is located in
an amount that is at least equal to the lesser of (i) the maximum
insurable value of the improvements securing such Mortgage Loan or
(ii) the greater of (a) the outstanding principal balance of the
Mortgage Loan and (b) an amount such that the proceeds of such policy
shall be sufficient to prevent the Mortgagor and/or the mortgagee
from becoming a co-insurer. If the Mortgaged Property is a
condominium unit, it is included under the coverage afforded by a
blanket policy for the condominium unit. All such individual
insurance policies and all flood policies referred to in item (xliv)
below contain a standard mortgagee clause naming the Seller or the
original mortgagee, and its successors in interest, as mortgagee, and
the Seller has received no notice that any premiums due and payable
thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance, including flood insurance,
at the Mortgagor's cost and expense, and upon the Mortgagor's failure
to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at the Mortgagor's cost and expense and to
seek reimbursement therefor from the Mortgagor.
(xliv) If the Mortgaged Property is in an area identified in
the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, a flood insurance policy in a form
meeting the requirements of the current guidelines of the Flood
Insurance Administration is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount
representing coverage not less than the least of (A) the original
outstanding principal balance of the Mortgage Loan, (B) the minimum
amount required to compensate for damage or loss on a replacement
cost basis, or (C) the maximum amount of insurance that is available
under the Flood Disaster Protection Act of 1973, as amended.
(xlv) To the best of the Seller's knowledge, there is
no proceeding occurring, pending or threatened for the total or
partial condemnation of the Mortgaged Property.
(xlvi) There is no material monetary default existing under
any Mortgage or the related Mortgage Note and, to the best of the
Seller's knowledge, there is no material event that, with the passage
of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of
acceleration under the Mortgage or the related Mortgage Note; and the
Seller has not waived any default, breach, violation or event of
acceleration.
(xlvii) Except with respect to three Mortgaged Properties
improved by five or more unit residential dwellings for which the
related Initial Mortgage Loans represent approximately 0.03% of the
Initial Mortgage Loans of the related Loan Group, each Mortgaged
Property is improved by a one- to four-family residential dwelling,
including condominium units and dwelling units in PUDS. To the best
of the Seller's knowledge, no improvement to a Mortgaged Property
includes cooperatives or mobile homes nor constitutes other than real
property under state law.
(xlviii) Each Mortgage Loan is being serviced by the Master
Servicer.
(xlix) Any future advances made prior to the Cut-off Date
have been consolidated with the outstanding principal amount secured
by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on
the Mortgage Loan Schedule. The consolidated principal amount does
not exceed the original principal amount of the Mortgage Loan. The
Mortgage Note does not permit or obligate the Master Servicer to make
future advances to the Mortgagor at the option of the Mortgagor.
(l) All taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground
rents that previously became due and owing have been paid, or an
escrow of funds has been established in an amount sufficient to pay
for every such item that remains unpaid and that has been assessed,
but is not yet due and payable. Except for (A) payments in the nature
of escrow payments, and (B) interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage proceeds,
whichever is later, to the day that precedes by one month the Due
Date of the first installment of principal and interest, including
without limitation, taxes and insurance payments, the Master Servicer
has not advanced funds, or induced, solicited or knowingly received
any advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required by the Mortgage.
(li)The Mortgage Loans originated by the Seller were
underwritten in all material respects in accordance with the Seller's
underwriting guidelines for B and C quality mortgage loans or, with
respect to Mortgage Loans purchased by the Seller were underwritten
in all material respects in accordance with customary and prudent
underwriting guidelines generally used by originators of B and C
quality mortgage loans.
(lii) Prior to the approval of the Mortgage Loan
application, an appraisal of the related Mortgaged Property was
obtained from a qualified appraiser, duly appointed by the
originator, who had no interest, direct or indirect, in the Mortgaged
Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan; such appraisal is in a form acceptable to FNMA and
FHLMC.
(liii) None of the Mortgage Loans is a graduated payment
mortgage loan or a growing equity mortgage loan, and no Mortgage Loan
is subject to a buydown or similar arrangement.
(liv) The Mortgage Rates borne by the Initial Mortgage
Loans in Loan Subgroup 1A as of the Cut-off Date ranged from 6.25%
per annum to 17.75% per annum and the weighted average Mortgage Rate
as of the Cut-off Date was 9.55% per annum; and the Mortgage Rates
borne by the Initial Mortgage Loans in Loan Subgroup 2A as of the
Cut-off Date ranged from 4.875% per annum to 15.875% per annum and
the weighted average Mortgage Rate as of the Cut-off Date was 9.78%
per annum.
(lv)The Mortgage Rates borne by the Fixed Rate Mortgage
Loans that are Initial Mortgage Loans as of the Cut-off Date ranged
from 6.875% per annum to 20.25% per annum and the weighted average
Mortgage Rate as of the Cut-off Date was 10.36% per annum.
(lvi) Except with respect to three Mortgaged Properties
improved by five or more unit residential dwellings for which the
related Initial Mortgage Loans represent approximately 0.03% of the
Initial Mortgage Loans of the related Loan Group, the Mortgage Loans
were selected from among the outstanding one- to four-family mortgage
loans in the Master Servicer's portfolio at the Closing Date or
Subsequent Transfer Date, as applicable, as to which the
representations and warranties made as to the Mortgage Loans set
forth in this Section 2.03(b) can be made. No selection was made in a
manner that would adversely affect the interests of
Certificateholders.
(lvii) The Gross Margins on the Adjustable Rate Mortgage
Loans that are Initial Mortgage Loans range from approximately 2.00%
to 12.75% and the weighted average Gross Margin was approximately
6.39%.
(lviii) Except for 96 Initial Mortgage Loans in Loan
Subgroup 1A representing approximately 13.13% of the Initial Mortgage
Loans in Loan Subgroup 1A, except for 882 Initial Mortgage Loans in
Loan Subgroup 2A representing approximately 12.99% of the Initial
Mortgage Loans in Loan Subgroup 2A, and except for 442 Fixed Rate
Mortgage Loans that are Initial Mortgage Loans representing
approximately 11.73% of the Fixed Rate Mortgage Loans that are
Initial Mortgage Loans, each Initial Mortgage Loan has a payment date
on or before the Due Date in the month of the first Distribution
Date.
(lix) The Mortgage Loans, individually and in the
aggregate, conform in all material respects to the descriptions
thereof in the Prospectus Supplement.
(lx)[Reserved]
(lxi) There is no obligation on the part of the Seller
under the terms of the Mortgage or related Mortgage Note to make
payments in addition to those made by the Mortgagor.
(lxii) Any leasehold estate securing a Mortgage Loan has a
term of not less than five years in excess of the term of the related
Mortgage Loan.
(lxiii) [Reserved]
(lxiv) Each Mortgage Loan represents a "qualified mortgage"
within the meaning of Section 860(a)(3) of the Code (but without
regard to the rule in Treasury Regulation ss. 1.860G-2(f)(2) that
treats a defective obligation as a qualified mortgage, or any
substantially similar successor provision) and applicable Treasury
regulations promulgated thereunder.
(lxv) No Mortgage Loan was either a "consumer credit
contract" or a "purchase money loan" as such terms are defined in 16
C.F.R. Section 433 nor is any Mortgage Loan a "mortgage" as defined
in 15 U.S.C. ss. 1602(aa).
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty set forth in Section 2.03(a) or (b) or a breach of
representation and warranty with respect to Subsequent Mortgage Loan under
Section 2.01(d)(iv), that materially and adversely affects the interests of
the Certificateholders in any Mortgage Loan, the party discovering such breach
shall give prompt notice thereof to the other parties. Each of the Master
Servicer and the Seller (each, a "Representing Party") hereby covenants with
respect to the representations and warranties set forth in Sections 2.03(a)
and (b) and with respect to a breach of representations and warranties with
respect to Subsequent Mortgage Loan under Section 2.01(d)(iv), respectively,
that within 90 days of the earlier of the discovery by such Representing Party
or receipt of written notice by such Representing Party from any party of a
breach of any representation or warranty set forth herein made that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, it shall cure such breach in all material respects and, if such breach
is not so cured, shall, (i) if such 90-day period expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Replacement
Mortgage Loan, in the manner and subject to the conditions set forth in this
Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from
the Trustee at the Purchase Price in the manner set forth below; provided that
any such substitution pursuant to (i) above or repurchase pursuant to (ii)
above shall not be effected prior to the delivery to the Trustee of the
Opinion of Counsel required by Section 2.05 hereof and any such substitution
pursuant to (i) above shall not be effected prior to the additional delivery
to the Trustee of a Request for Release substantially in the form of Exhibit
M. Any Representing Party liable for a breach under this Section 2.03 shall
promptly reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach. To enable the Master Servicer to amend
the Mortgage Loan Schedule, any Representing Party liable for a breach under
this Section 2.03 shall, unless it cures such breach in a timely fashion
pursuant to this Section 2.03, promptly notify the Master Servicer whether
such Representing Party intends either to repurchase, or to substitute for,
the Mortgage Loan affected by such breach. With respect to the representations
and warranties described in this Section that are made to the best of the
Representing Party's knowledge, if it is discovered by any of the Depositor,
the Master Servicer, 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, notwithstanding the
Representing Party's lack of knowledge with respect to the substance of such
representation or warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
With respect to any Replacement Mortgage Loan or Loans, the Seller
delivering such Replacement Mortgage Loan shall deliver to the Trustee for the
benefit of the Certificateholders the related Mortgage Note, Mortgage and
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution will be made in any
calendar month after the Determination Date for such month. Scheduled Payments
due with respect to Replacement Mortgage Loans in the Due Period related to
the Distribution Date on which such proceeds are to be distributed shall not
be part of the Trust Fund and will be retained by the Seller delivering such
Replacement Loan on such Distribution Date. For the month of substitution,
distributions to Certificateholders will include the Scheduled Payment due on
any Deleted Mortgage Loan for the related Due Period and thereafter the Seller
shall be entitled to retain all amounts received in respect of such Deleted
Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for
the benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans
and the Master Servicer shall deliver the amended Mortgage Loan Schedule to
the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans
shall be subject to the terms of this Agreement in all respects, and the
Seller delivering such Replacement Mortgage Loan shall be deemed to have made
with respect to such Replacement Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties set forth in Section 2.03(b)
with respect to such Mortgage Loan. Upon any such substitution and the deposit
to the Certificate Account of the amount required to be deposited therein in
connection with such substitution as described in the following paragraph, the
Trustee shall release to the Representing Party the Mortgage File relating to
such Deleted Mortgage Loan and held for the benefit of the Certificateholders
and shall execute and deliver at the Master Servicer's direction such
instruments of transfer or assignment as have been prepared by the Master
Servicer, in each case without recourse, as shall be necessary to vest in the
Seller, or its respective designee, title to the Trustee's interest in any
Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more Replacement
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer
will determine the amount (if any) by which the aggregate principal balance of
all such Replacement Mortgage Loans as of the date of substitution is less
than the Stated Principal Balance (after application of the principal portion
of the Scheduled Payment due in the month of substitution) of all such Deleted
Mortgage Loans. An amount equal to the aggregate of the deficiencies described
in the preceding sentence (such amount, the "Substitution Adjustment Amount")
shall be deposited into the Certificate Account by the Seller delivering such
Replacement Mortgage Loan on the Determination Date for the Distribution Date
relating to the Prepayment Period during which the related Mortgage Loan
became required to be purchased or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan, the
Purchase Price therefor shall be deposited in the Certificate Account pursuant
to Section 3.08 on the Determination Date for the Distribution Date in the
month following the month during which such Seller became obligated to
repurchase or replace such Mortgage Loan and upon such deposit of the Purchase
Price, the delivery of the Opinion of Counsel required by Section 2.05, if
any, and the receipt of a Request for Release in the form of Exhibit N hereto,
the Trustee shall release the related Mortgage File held for the benefit of
the Certificateholders to such Seller, and the Trustee shall execute and
deliver at such Person's direction the related instruments of transfer or
assignment prepared by such Seller, in each case without recourse, as shall be
necessary to transfer title from the Trustee for the benefit of the
Certificateholders and transfer the Trustee's interest to such Seller to any
Mortgage Loan purchased pursuant to this Section 2.03. It is understood and
agreed that the obligation under this Agreement of the Seller to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and
is continuing shall constitute the sole remedy against the Seller respecting
such breach available to Certificateholders, the Depositor or the Trustee.
(d) The representations and warranties set forth in Section 2.03 hereof
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
Section 2.04. Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Master Servicer and
the Trustee as follows, as of the date hereof and as of each Subsequent
Transfer Date:
(i) The Depositor is duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware and has full power and authority (corporate and other)
necessary to own or hold its properties and to conduct its business
as now conducted by it and to enter into and perform its obligations
under this Agreement and each Subsequent Transfer Agreement.
(ii)The Depositor has the full corporate power and authority
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and each Subsequent
Transfer Agreement and has duly authorized, by all necessary
corporate action on its part, the execution, delivery and performance
of this Agreement and each Subsequent Transfer Agreement; and this
Agreement and each Subsequent Transfer Agreement, assuming the due
authorization, execution and delivery hereof by the other parties
hereto, constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its
terms, subject, as to enforceability, to (i) bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors' rights generally and (ii) general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity
or at law.
(iii) The execution and delivery of this Agreement and
each Subsequent Transfer Agreement by the Depositor, the consummation
of the transactions contemplated by this Agreement and each
Subsequent Transfer Agreement, and the fulfillment of or compliance
with the terms hereof and thereof are in the ordinary course of
business of the Depositor and will not (A) result in a material
breach of any term or provision of the charter or by-laws of the
Depositor or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to
which the Depositor is a party or by which it may be bound or (C)
constitute a material violation of any statute, order or regulation
applicable to the Depositor of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Depositor; and the Depositor is not in breach or violation of any
material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair
the Depositor's ability to perform or meet any of its obligations
under this Agreement and each Subsequent Transfer Agreement.
(iv)No litigation is pending, or, to the best of the
Depositor's knowledge, threatened, against the Depositor that would
materially and adversely affect the execution, delivery or
enforceability of this Agreement or any Subsequent Transfer Agreement
or the ability of the Depositor to perform its obligations under this
Agreement or any Subsequent Transfer Agreement in accordance with the
terms hereof.
(v) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Depositor of, or compliance by the
Depositor with, this Agreement or any Subsequent Transfer Agreement
or the consummation of the transactions contemplated hereby, or if
any such consent, approval, authorization or order is required, the
Depositor has obtained the same.
The Depositor hereby represents and warrants to the Trustee with respect
to each Mortgage Loan as of the Closing Date or the related Subsequent
Transfer Date, as applicable, and following the transfer of the Mortgage Loans
to it by the Seller, the Depositor had good title to the Initial Mortgage
Loans or related Subsequent Mortgage Loans, as applicable, and the related
Mortgage Notes were subject to no offsets, claims, defenses or counterclaims.
It is understood and agreed that the representations and warranties set
forth in the two immediately preceding paragraphs shall survive delivery of
the Mortgage Files to the Trustee. Upon discovery by the Depositor or the
Trustee of a breach of any of the foregoing representations and warranties set
forth in the immediately preceding paragraph (referred to herein as a
"breach"), which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt
written notice to the others and to each Rating Agency. The Depositor hereby
covenants with respect to the representations and warranties made by it in
this Section 2.04 that within 90 days of the earlier of the discovery it or
receipt of written notice by it from any party of a breach of any
representation or warranty set forth herein made that materially and adversely
affects the interests of the Certificateholders in any Mortgage Loan, it shall
cure such breach in all material respects and, if such breach is not so cured,
shall repurchase or replace the affected Mortgage Loan or Loans in accordance
with the procedure set forth in Section 2.03(c).
Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases.
(a) Notwithstanding any contrary provision of this Agreement, with
respect to any Mortgage Loan that is not in default or as to which default is
not imminent, no repurchase or substitution pursuant to Sections 2.02, 2.03 or
2.04 shall be made unless the Representing Party making such repurchase or
substitution delivers to the Trustee an Opinion of Counsel, addressed to the
Trustee, to the effect that such repurchase or substitution would not (i)
result in the imposition of the tax on "prohibited transactions" of the Trust
Fund or contributions after the Closing Date, as defined in sections
860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause the Trust Fund
to fail to qualify as a REMIC at any time that any Certificates are
outstanding. Any Mortgage Loan as to which repurchase or substitution was
delayed pursuant to this paragraph shall be repurchased or the substitution
therefor shall occur (subject to compliance with Sections 2.02, 2.03 or 2.04)
upon the earlier of (a) the occurrence of a default or imminent default with
respect to such loan and (b) receipt by the Trustee of an Opinion of Counsel
to the effect that such repurchase or substitution, as applicable, will not
result in the events described in clause (i) or clause (ii) of the preceding
sentence.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer or
the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of section 86OG(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within 5 Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller's option, to
either (i) substitute, if the conditions in Section 2.03(b) with respect to
substitutions are satisfied, a Replacement Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty contained in Section 2.03. 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 contained in Section
2.03.
Section 2.06. Authentication and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed,
authenticated and delivered, to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing the entire ownership of
the Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders of
the Certificates and to perform the duties set forth in this Agreement to the
best of its ability, to the end that the interests of the Holders of the
Certificates may be adequately and effectively protected.
Section 2.07. Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor, the Trustee as
follows:
(a) the Master Servicer shall comply in the
performance of its obligations under this Agreement with all
reasonable rules and requirements of the insurer under each Required
Insurance Policy; and
(b) no written information, certificate of
an officer, statement furnished in writing or written report
delivered to the Depositor, any affiliate of the Depositor or the
Trustee and prepared by the Master Servicer pursuant to this
Agreement will contain any untrue statement of a material fact or
omit to state a material fact necessary to make the information,
certificate, statement or report not misleading.
ARTICLE III.
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with customary and
usual standards of practice of prudent mortgage loan lenders in the respective
states in which the Mortgaged Properties are located. In connection with such
servicing and administration, the Master Servicer shall have full power and
authority, acting alone and/or through subservicers as provided in Section
3.02 hereof, to do or cause to be done any and all things that it may deem
necessary or desirable in connection with such servicing and administration,
including but not limited to, the power and authority, subject to the terms
hereof (i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds and other Liquidation
Proceeds, and (iv) subject to Section 3.12(a), to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan; provided that the Master Servicer shall take no action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor and the Trustee under this Agreement. The Master Servicer shall
represent and protect the interest of the Trust Fund in the same manner as it
currently protects its own interest in mortgage loans in its own portfolio in
any claim, proceeding or litigation regarding a Mortgage Loan and shall not
make or permit any modification, waiver or amendment of any term of any
Mortgage Loan which would cause the Trust Fund to fail to qualify as a REMIC
or result in the imposition of any tax under Section 860(a) or 860(d) of the
Code, but in any case not in any manner that is a lesser standard than that
provided in the first sentence of this Section 3.01. Without limiting the
generality of the foregoing, the Master Servicer, in its own name or in the
name of the Depositor and the Trustee, is hereby authorized and empowered by
the Depositor and the Trustee, when the Master Servicer believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of
the Trustee, the Depositor, the Certificateholders or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans, and with respect to the Mortgaged Properties held for the benefit of
the Certificateholders. The Master Servicer shall prepare and deliver to the
Depositor and/or the Trustee such documents requiring execution and delivery
by any or all of them as are necessary or appropriate to enable the Master
Servicer to service and administer the Mortgage Loans. Upon receipt of such
documents, the Depositor and/or the Trustee shall execute such documents and
deliver them to the Master Servicer. The Master Servicer further is authorized
and empowered by the Trustee, on behalf of the Certificateholders and the
Trustee, in its own name or in the name of the Subservicer, when the Master
Servicer or the Subservicer, as the case may be, believes it appropriate in
its best judgment to register any Mortgage Loan on the MERS(R) System, or
cause the removal from the registration of any Mortgage Loan on the MERS(R)
System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
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 payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further
as provided in Section 3.08. All costs incurred by the Master Servicer, if
any, in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to
the Stated Principal Balance under the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit.
The Master Servicer shall deliver a list of Servicing Officers to the
Trustee by the Closing Date.
Section 3.02. Subservicing; Enforcement of the Obligations of Master
Servicer.
(a) The Master Servicer may arrange for the subservicing of any Mortgage
Loan by a subservicer (each, a "Subservicer") pursuant to a subservicing
agreement (each, a "Subservicing Agreement"); provided that such subservicing
arrangement and the terms of the related subservicing agreement must provide
for the servicing of such Mortgage Loans in a manner consistent with the
servicing arrangements contemplated hereunder. Notwithstanding the provisions
of any subservicing agreement, any of the provisions of this Agreement
relating to agreements or arrangements between the Master Servicer or a
subservicer or reference to actions taken through a Master Servicer or
otherwise, the Master Servicer shall remain obligated and liable to the
Depositor, the Trustee and the Certificateholders for the servicing and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from
the subservicer 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. Every subservicing agreement entered into by the Master Servicer shall
contain a provision giving the successor Master Servicer the option to
terminate such agreement in the event a successor Master Servicer is
appointed. All actions of each subservicer performed pursuant to the related
subservicing agreement shall be performed as an agent of the Master Servicer
with the same force and effect as if performed directly by the Master
Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be deemed
to have received any collections, recoveries or payments with respect to the
Mortgage Loans that are received by a subservicer regardless of whether such
payments are remitted by the subservicer to the Master Servicer.
Section 3.03. Rights of the Depositor, the Trustee in Respect of the
Master Servicer.
Neither the Trustee nor the Depositor shall have any responsibility or
liability for any action or failure to act by the Master Servicer, and none of
them is obligated to supervise the performance of the Master Servicer
hereunder or otherwise.
Section 3.04. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer hereunder (including by reason of an Event of Default),
the Trustee or its designee shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that
the Trustee shall not be (i) liable for losses of the Master Servicer pursuant
to Section 3.10 hereof or any acts or omissions of the predecessor Master
Servicer hereunder, (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder, including pursuant to Section 2.02
or 2.03 hereof, (iv) responsible for expenses of the Master Servicer pursuant
to Section 2.03 or (v) deemed to have made any representations and warranties
hereunder, including pursuant to Section 2.03 or the first paragraph of
Section 6.02 hereof). If the Master Servicer shall for any reason no longer be
the Master Servicer (including by reason of any Event of Default), the Trustee
(or any other successor servicer) may, at its option, succeed to any rights
and obligations of the Master Servicer under any subservicing agreement in
accordance with the terms thereof; provided that the Trustee (or any other
successor servicer) shall not incur any liability or have any obligations in
its capacity as servicer under a subservicing agreement arising prior to the
date of such succession unless it expressly elects to succeed to the rights
and obligations of the Master Servicer thereunder; and the Master Servicer
shall not thereby be relieved of any liability or obligations under the
subservicing agreement arising prior to the date of such succession.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected held by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of the subservicing agreement to the assuming party.
Section 3.05. Collection of Mortgage Loan Payments; Certificate Account;
Distribution Account; Pre-Funding Account
(a) The Master Servicer shall make reasonable efforts in accordance with
customary and usual standards of practice of prudent mortgage lenders in the
respective states in which the Mortgaged Properties are located to collect all
payments called for under the terms and provisions of the Mortgage Loans to
the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any related Required Insurance Policy. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection with
the prepayment of a Mortgage Loan and (ii) extend the due dates for payments
due on a Mortgage Note for a period not greater than 270 days. In the event of
any such arrangement, the Master Servicer shall make Advances on the related
Mortgage Loan during the scheduled period in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements. The Master Servicer shall not be required to institute or join
in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable law.
(b) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit or cause to be deposited
on a daily basis within one Business Day of receipt, except as otherwise
specifically provided herein, the following payments and collections remitted
by Subservicers or received by it in respect of Mortgage Loans subsequent to
the Cut-off Date (other than in respect of principal and interest due on the
Mortgage Loans before the Cut-off Date) and the following amounts required to
be deposited hereunder:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii)all payments on account of interest on the Mortgage
Loans net of the related Servicing Fee permitted under Section 3.15,
other than interest accrued on the Mortgage Loans prior to the
Cut-off Date, and the Initial Certificate Account Deposit;
(iii) all Liquidation Proceeds, other than proceeds to
be applied to the restoration or repair of the Mortgaged Property or
released to the Mortgagor in accordance with the Master Servicer's
normal servicing procedures;
(iv) all Compensating Interest;
(v) any amount required to be deposited by the Master
Servicer pursuant to Section 3.05(e) in connection with any losses on
Permitted Investments;
(vi) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.10 hereof;
(vii) the Purchase Price and any Substitution
Adjustment Amount;
(viii) all Advances made by the Master Servicer pursuant
to Section 4.01; and
(ix)any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Master Servicer into the
Certificate Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the nature of
prepayment penalties, late payment charges or assumption fees, if collected,
need not be remitted by the Master Servicer. In the event that the Master
Servicer shall remit any amount not required to be remitted and not otherwise
subject to withdrawal pursuant to Section 3.08 hereof, it may at any time
withdraw or direct the institution maintaining the Certificate Account, to
withdraw such amount from the Certificate Account, any provision herein to the
contrary notwithstanding. Such withdrawal or direction may be accomplished by
delivering written notice thereof to the institution maintaining the
Certificate Account, that describes the amounts deposited in error in the
Certificate Account. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section. All funds deposited
in the Certificate Account shall be held in trust for the Certificateholders
until withdrawn in accordance with Section 3.08.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer
pursuant to the second paragraph of Section 3.08(a); and
(ii)any amount required to be deposited by the Master
Servicer pursuant to Section 3.05(e) in connection with any losses on
Permitted Investments.
The foregoing requirements for remittance by the Master Servicer and
deposit by the Trustee into the Distribution Account shall be exclusive. In
the event that the Master Servicer shall remit any amount not required to be
remitted and not otherwise subject to withdrawal pursuant to Section 3.08
hereof, it may at any time direct the Trustee to withdraw such amount from the
Distribution Account, any provision herein to the contrary notwithstanding.
Such direction may be accomplished by delivering a written notice to the
Trustee that describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be held by the
Trustee in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Section 3.08. In no event shall
the Trustee incur liability for withdrawals from the Distribution Account at
the direction of the Master Servicer.
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Pre-Funding Account. On the Closing Date the Seller
shall remit the Pre-Funded Amount to the Trustee for deposit in the
Pre-Funding Account. The Trustee shall allocate (i) $57,728,911.03 of the
Pre-Funded Amount for the purchase of Subsequent Mortgage Loans to be included
in the Fixed Rate Loan Group, (ii) $20,967,389.04 of the Pre-Funded Amount for
the purchase of Subsequent Mortgage Loans to be included in the Loan Subgroup
1A and (iii) $41,401,673.57 of the Pre-Funded Amount for the purchase of
Subsequent Mortgage Loans to be included in the Loan Subgroup 2A.
If any funds remain in the Pre-Funding Account on March 31, 2000, to the
extent that they represent earnings on the amounts originally deposited into
the Pre-Funding Account, the Trustee shall distribute them to the order of the
Depositor. The remaining funds shall be transferred to the Distribution
Account to be included as part of (i) to the extent such funds represent
amounts that were allocated to purchase Subsequent Mortgage Loans to be
included in the Fixed Rate Loan Group, the Fixed Rate Principal Distribution
Amount, and (ii) the extent such funds represent amounts that were allocated
to purchase Subsequent Mortgage Loans to be included in Loan Subgroup 1A and
Loan Subgroup 2A, the Adjustable Rate Principal Distribution Amount (in the
case of this clause (ii) to be distributed as provided in Section
4.04(e)(ii)).
(e) Each institution that maintains the Certificate Account, the
Distribution Account, the Fixed Rate Carryover Reserve Fund or the Adjustable
Rate Carryover Reserve Fund shall invest the funds in each such account, as
directed by the Master Servicer, in Permitted Investments, which shall mature
not later than (x) in the case of the Certificate Account, the second Business
Day next preceding the related Distribution Account Deposit Date (except that
if such Permitted Investment is an obligation of the institution that
maintains such Certificate Account, then such Permitted Investment shall
mature not later than the Business Day next preceding such Distribution
Account Deposit Date) and (y) in the case of the Distribution Account, the
Fixed Rate Carryover Reserve Fund and the Adjustable Rate Carryover Reserve
Fund, the Business Day immediately preceding the first Distribution Date that
follows the date of such investment (except that if such Permitted Investment
is an obligation of the institution that maintains such Distribution Account,
Fixed Rate Carryover Reserve Fund or Adjustable Rate Carryover Reserve Fund,
then such Permitted Investment shall mature not later than such Distribution
Date), in each case, shall not be sold or disposed of prior to its maturity.
Each institution that maintains the Pre-Funding Account shall invest the funds
in such account in Permitted Investments identified in clause (vi) of the
definition thereof. All such Permitted Investments shall be made in the name
of the Trustee, for the benefit of the Certificateholders, except in
connection with Permitted Investments made with respect to funds in (x) the
Fixed Rate Carryover Reserve Fund which shall be made in the name of the
Trustee, for the benefit of the Class BF-IO Certificateholders and (y) the
Adjustable Rate Carryover Reserve Fund which shall be made in the name of the
Trustee, for the benefit of the Class BV-IO Certificateholders. In the case of
(i) the Certificate Account and the Distribution Account, all income and gain
net of any losses realized from any such investment shall be for the benefit
of the Master Servicer as servicing compensation and shall be remitted to it
monthly as provided herein, (ii) the Pre-Funding Account, all income and gain
net of any losses realized from any such investment shall be for the benefit
of the Depositor, (iii) the Fixed Rate Carryover Reserve Fund, all income and
gain net of any losses realized from any such investment shall be for the
benefit of the Class BF-IO Certificateholders and shall be remitted to the
Class BF-IO Certificateholders monthly as provided herein, and (iv) the
Adjustable Rate Carryover Reserve Fund, all income and gain net of any losses
realized from any such investment shall be for the benefit of the Class BV-IO
Certificateholders and shall be remitted to the Class BV-IO Certificateholders
monthly as provided herein. The amount of any losses incurred in the
Certificate Account or the Distribution Account in respect of any such
investments shall be deposited by the Master Servicer in the Certificate
Account or paid to the Trustee for deposit into the Distribution Account out
of the Master Servicer's own funds immediately as realized. The amount of any
losses incurred in the Pre-Funding Account in respect of any such investments
shall be paid by the Depositor to the Trustee for deposit into the Pre-Funding
Account out of the Depositor's own funds immediately as realized. Any losses
incurred in the Fixed Rate Carryover Reserve Fund in respect of any such
investments shall be charged against amounts on deposit in the Fixed Rate
Carryover Reserve Fund (or such investments) immediately as realized. Any
losses incurred in the Adjustable Rate Carryover Reserve Fund in respect of
any such investments shall be charged against amounts on deposit in the
Carryover Fund (or such investments) immediately as realized. The Trustee
shall not be liable for the amount of any loss incurred in respect of any
investment or lack of investment of funds held in the Certificate Account, the
Distribution Account, the Pre-Funding Account , the Fixed Rate Carryover
Reserve Fund or the Adjustable Rate Carryover Reserve Fund and made in
accordance with this Section 3.05.
(f) The Master Servicer shall give at least 30 days advance notice to the
Trustee, the Seller, each Rating Agency and the Depositor of any proposed
change of location of the Certificate Account prior to any change thereof. The
Trustee shall give at least 30 days advance notice to the Master Servicer, the
Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Distribution Account, the Fixed Rate Carryover Reserve Fund or
the Adjustable Rate Carryover Reserve Fund prior to any change thereof.
Section 3.06. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
To the extent required by the related Mortgage Note, the Master Servicer
shall establish and maintain one or more accounts (each, an "Escrow Account")
and deposit and retain therein all collections from the Mortgagors (or
advances by the Master Servicer) for the payment of taxes, assessments, hazard
insurance premiums or comparable items for the account of the Mortgagors.
Nothing herein shall require the Master Servicer to compel a Mortgagor to
establish an Escrow Account in violation of applicable law.
Withdrawals of amounts so collected from the Escrow Accounts may be made
only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse the Master Servicer out of related collections for any payments made
pursuant to Sections 3.01 hereof (with respect to taxes and assessments and
insurance premiums) and 3.10 hereof (with respect to hazard insurance), to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required by law or the terms of the related Mortgage or Mortgage
Note, to Mortgagors on balances in the Escrow Account or to clear and
terminate the Escrow Account at the termination of this Agreement in
accordance with Section 9.01 hereof. The Escrow Accounts shall not be a part
of the Trust Fund.
Section 3.07. Access to Certain Documentation and Information Regarding
the Mortgage Loans.
The Master Servicer shall afford the Depositor and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance policies and other matters relating to this Agreement,
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.
Upon reasonable advance notice in writing if required by federal
regulation, the Master Servicer will provide to each Certificateholder that is
a savings and loan association, bank or insurance company certain reports and
reasonable access to information and documentation regarding the Mortgage
Loans sufficient to permit such Certificateholder to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates; provided that the Master Servicer shall be
entitled to be reimbursed by each such Certificateholder for actual expenses
incurred by the Master Servicer in providing such reports and access.
Section 3.08. Permitted Withdrawals from the Certificate Account,
Distribution Account, the Fixed Rate Carryover Reserve Fund and the Adjustable
Rate Carryover Reserve Fund.
(a) The Master Servicer may from time to time make withdrawals from the
Certificate Account for the following purposes:
(i) to pay to the Master Servicer (to the extent not
previously paid to or withheld by the Master Servicer), as servicing
compensation in accordance with Section 3.15, that portion of any
payment of interest that equals the Servicing Fee for the period with
respect to which such interest payment was made, and, as additional
servicing compensation, those other amounts set forth in Section
3.15;
(ii) to reimburse the Master Servicer for Advances made by it
with respect to the Mortgage Loans, such right of reimbursement
pursuant to this subclause (ii) being limited to amounts received on
particular Mortgage Loan(s) (including, for this purpose, Liquidation
Proceeds) that represent late recoveries of payments of principal
and/or interest on such particular Mortgage Loan(s) in respect of
which any such Advance was made;
(iii) to reimburse the Master Servicer for any
Nonrecoverable Advance previously made;
(iv) to reimburse the Master Servicer from Insurance Proceeds
for Insured Expenses covered by the related Insurance Policy;
(v) to pay the Master Servicer any unpaid Servicing Fees and
to reimburse it for any unreimbursed Servicing Advances, the Master
Servicer's right to reimbursement of Servicing Advances pursuant to
this subclause (v) with respect to any Mortgage Loan being limited to
amounts received on particular Mortgage Loan(s) (including, for this
purpose, Liquidation Proceeds and purchase and repurchase proceeds)
that represent late recoveries of the payments for which such
advances were made pursuant to Section 3.01 or Section 3.06;
(vi) to pay to the Seller, the Depositor or the Master
Servicer, as applicable, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant
to Section 2.02, 2.03 or 3.12, all amounts received thereon and not
taken into account in determining the related Stated Principal
Balance of such repurchased Mortgage Loan;
(vii) to reimburse the Seller, the Master Servicer or
the Depositor for expenses incurred by any of them in connection with
the Mortgage Loans or Certificates and reimbursable pursuant to
Section 6.03 hereof provided that such amount shall only be withdrawn
following the withdrawal from the Certificate Account for deposit
into the Distribution Account pursuant to the following paragraph;
(viii) to withdraw pursuant to Section 3.05 any amount
deposited in the Certificate Account and not required to be deposited
therein; and
(ix) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01 hereof.
In addition, no later than 1:00 p.m. Pacific time on the Distribution
Account Deposit Date, (1) the Master Servicer shall withdraw from the
Certificate Account and remit to the Trustee the amount of Fixed Rate Interest
Funds, Fixed Rate Principal Funds, Adjustable Rate Interest Funds and
Adjustable Rate Principal Funds, to the extent on deposit, and the Trustee
shall deposit such amount in the Distribution Account and (2) the Master
Servicer shall withdraw from the Certificate Account and remit to the Trustee
the amount of Fixed Rate Credit Comeback Excess Amount, to the extent on
deposit, and the Trustee shall deposit such amount in the Distribution
Account.
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 Certificate Account pursuant to subclauses (i), (ii),
(iv), (v) and (vi) above and the Fixed Rate Credit Comeback Amount. Prior to
making any withdrawal from the Certificate Account pursuant to subclause
(iii), the Master Servicer shall deliver to the Trustee an Officer's
Certificate of a Servicing Officer indicating the amount of any previous
Advance determined by the Master Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loan(s), and their respective portions of
such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distribution to the Certificateholders in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the amount of any
taxes that it is authorized to retain pursuant to the last paragraph of
Section 8.11). In addition, the Trustee may from time to time make withdrawals
from the Distribution Account for the following purposes:
(i) to pay to the Master Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds
in or credited to the Distribution Account;
(ii)to withdraw pursuant to Section 3.05 any amount deposited
in the Distribution Account and not required to be deposited therein; and
(iii) to clear and terminate the Distribution Account
upon termination of the Agreement pursuant to Section 9.01 hereof.
On each Distribution Date, the Trustee shall withdraw the Fixed Rate
Credit Comeback Excess Amount (to the extent paid by the Master Servicer to
the Trustee pursuant to the penultimate paragraph of Section 3.08(a)) from the
Distribution Account and distribute such amount to the Class R Certificates as
provided in this Agreement.
(c) The Trustee shall withdraw funds from the Fixed Rate Carryover
Reserve Fund for distribution to the Fixed Rate Certificateholders in the
manner specified in this Agreement (and to withhold from the amounts so
withdrawn, the amount of any taxes that it is authorized to retain pursuant to
the last paragraph of Section 8.11). In addition, the Trustee may from time to
time make withdrawals from the Fixed Rate Carryover Reserve Fund for the
following purposes:
(i) to withdraw pursuant to Section 3.05 any amount deposited
in the Fixed Rate Carryover Reserve Fund and not required to be
deposited therein; and
(ii)to clear and terminate the Fixed Rate Carryover Reserve
Fund upon termination of the Agreement pursuant to Section 9.01
hereof.
(d) The Trustee shall withdraw funds from the Adjustable Rate Carryover
Reserve Fund for distribution to the Adjustable Rate Certificateholders in the
manner specified in this Agreement (and to withhold from the amounts so
withdrawn, the amount of any taxes that it is authorized to retain pursuant to
the last paragraph of Section 8.11). In addition, the Trustee may from time to
time make withdrawals from the Adjustable Rate Carryover Reserve Fund for the
following purposes:
(i) to withdraw pursuant to Section 3.05 any amount deposited
in the Adjustable Rate Carryover Reserve Fund and not required to be
deposited therein; and
(ii)to clear and terminate the Adjustable Rate Carryover
Reserve Fund upon termination of the Agreement pursuant to Section
9.01 hereof.
Section 3.09. [Reserved.]
Section 3.10. Maintenance of Hazard Insurance.
The Master Servicer shall cause to be maintained, for each Mortgage Loan,
hazard insurance with extended coverage in an amount that is at least equal to
the lesser of (i) the maximum insurable value of the improvements securing
such Mortgage Loan and (ii) the greater of (a) the outstanding principal
balance of the Mortgage Loan and (b) an amount such that the proceeds of such
policy shall be sufficient to prevent the related Mortgagor and/or mortgagee
from becoming a co-insurer. Each such policy of standard hazard insurance
shall contain, or have an accompanying endorsement that contains, a standard
mortgagee clause. The Master Servicer shall also cause flood insurance to be
maintained on property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, to the extent described below. Pursuant to
Section 3.05 hereof, any amounts collected by the Master Servicer under any
such policies (other than the amounts to be applied to the restoration or
repair of the related Mortgaged Property or property thus acquired or amounts
released to the Mortgagor in accordance with the Master Servicer's normal
servicing procedures) shall be deposited in the Certificate Account. Any cost
incurred by the Master Servicer in maintaining any such insurance shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Trustee for their benefit, be added to the principal
balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage
Loan so permit. Such costs shall be recoverable by the Master Servicer out of
late payments by the related Mortgagor or out of Liquidation Proceeds to the
extent permitted by Section 3.08 hereof. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor or
maintained on property acquired in respect of a Mortgage 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 is
located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating in the
national flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan. Such flood
insurance shall be in an amount equal to the lesser of (i) the original
principal balance of the related Mortgage Loan, (ii) the replacement value of
the improvements that are part of such Mortgaged Property, or (iii) the
maximum amount of such insurance available for the related Mortgaged Property
under the Flood Disaster Protection Act of 1973, as amended.
In the event that the Master Servicer shall obtain and maintain a blanket
policy 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 sentence of this Section 3.10, it being understood and agreed that such
policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers. If such
policy contains a deductible clause, the Master Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property a
policy complying with the first sentence of this Section 3.10, and there shall
have been a loss that would have been covered by such policy, deposit in the
Certificate Account 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 present, on behalf of itself, the Depositor and the Trustee for the benefit
of the Certificateholders, claims under any such blanket policy.
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this Section 3.11(a), when any
property subject to a Mortgage has been or is about to be conveyed by the
Mortgagor, the Master Servicer shall to the extent that it has knowledge of
such conveyance, enforce any due-on-sale clause contained in any Mortgage Note
or Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer is not required to exercise
such rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies
the terms and conditions contained in the Mortgage Note and Mortgage related
thereto and the consent of the mortgagee under such Mortgage Note or Mortgage
is not otherwise so required under such Mortgage Note or Mortgage as a
condition to such transfer. In the event that the Master Servicer is
prohibited by law from enforcing any such due-on-sale clause, or if coverage
under any Required Insurance Policy would be adversely affected, or if
nonenforcement is otherwise permitted hereunder, the Master Servicer is
authorized, subject to Section 3.11(b), to take or enter into an assumption
and modification agreement from or with the person to whom such property has
been or is about to be conveyed, pursuant to which such person becomes liable
under the Mortgage Note and, unless prohibited by applicable state law, the
Mortgagor remains liable thereon, provided that the Mortgage Loan shall
continue to be covered (if so covered before the Master Servicer enters such
agreement) by the applicable Required Insurance Policies. The Master Servicer,
subject to Section 3.11(b), is also authorized with the prior approval of the
insurers under any Required Insurance Policies 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 Mortgagor and
becomes liable under the Mortgage Note. Notwithstanding the foregoing, the
Master Servicer shall not be deemed to be in default under this Section
3.11(a) by reason of any transfer or assumption that the Master Servicer
reasonably believes it is restricted by law from preventing.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.11(a) hereof, in any case in which
a Mortgaged Property has been conveyed to a Person by a Mortgagor, and such
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver or cause to be prepared and delivered to
the Trustee for signature and shall direct, in writing, the Trustee to execute
the assumption agreement with the Person to whom the Mortgaged Property is to
be conveyed and such modification agreement or supplement to the Mortgage Note
or Mortgage or other instruments as are reasonable or necessary to carry out
the terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged
Property to such Person. In connection with any such assumption, no material
term of the Mortgage Note (including, but not limited to, the Mortgage Rate,
the amount of the Scheduled Payment, the Maximum Rate, the Minimum Rate, the
Gross Margin, the Periodic Rate Cap, the Adjustment Date and any other term
affecting the amount or timing of payment on the Mortgage Loan) may be
changed. In addition, the substitute Mortgagor and the Mortgaged Property must
be acceptable to the Master Servicer in accordance with its underwriting
standards as then in effect. The Master Servicer shall notify the Trustee that
any such substitution or assumption agreement has been completed by forwarding
to the Trustee the original of such substitution or assumption agreement,
which in the case of the original 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. Any fee collected by the Master Servicer for entering into an
assumption or substitution of liability agreement will be retained by the
Master Servicer as additional servicing compensation.
Section 3.12. Realization Upon Defaulted Mortgage Loans; Determination of
Excess Proceeds and Realized Losses; Repurchase of Certain Mortgage Loans.
(a) The Master Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments.
In connection with such foreclosure or other conversion, the Master Servicer
shall follow such practices and procedures as it shall deem necessary or
advisable and as shall be normal and usual in its general mortgage servicing
activities and the requirements of the insurer under any Required Insurance
Policy; provided that the Master Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the restoration of any
property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan
after reimbursement to itself of such expenses and (ii) that such expenses
will be recoverable to it through Liquidation Proceeds (respecting which it
shall have priority for purposes of withdrawals from the Certificate Account
pursuant to Section 3.08 hereof). The Master Servicer shall be responsible for
all other costs and expenses incurred by it in any such proceedings; provided
that it shall be entitled to reimbursement thereof from the proceeds of
liquidation of the related Mortgaged Property, as contemplated in Section 3.08
hereof. If the Master Servicer has knowledge that a Mortgaged Property that
the Master Servicer is contemplating acquiring in foreclosure or by
deed-in-lieu of foreclosure is located within a one-mile radius of any site
with environmental or hazardous waste risks known to the Master Servicer, the
Master Servicer will, prior to acquiring the Mortgaged Property, consider such
risks and only take action in accordance with its established environmental
review procedures.
With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trustee for the benefit of the Certificateholders
(or the Trustee's nominee on behalf of the Certificateholders). The Trustee's
name shall be placed on the title to such REO Property solely as the Trustee
hereunder and not in its individual capacity. The Master Servicer shall ensure
that the title to such REO Property references this Agreement and the
Trustee's capacity thereunder. Pursuant to its efforts to sell such REO
Property, the Master Servicer shall either itself or through an agent selected
by the Master Servicer protect and conserve such REO Property in the same
manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of
the interests of the Certificateholders, rent the same, or any part thereof,
as the Master Servicer deems to be in the best interest of the Master Servicer
and the Certificateholders for the period prior to the sale of such REO
Property. The Master Servicer shall prepare for and deliver to the Trustee a
statement with respect to each REO Property that has been rented showing the
aggregate rental income received and all expenses incurred in connection with
the management and maintenance of such REO Property at such times as is
necessary to enable the Trustee to comply with the reporting requirements of
the REMIC Provisions. The net monthly rental income, if any, from such REO
Property shall be deposited in the Certificate Account no later than the close
of business on each Determination Date. The Master Servicer shall perform the
tax reporting and withholding related to foreclosures, abandonments and
cancellation of indebtedness income as specified by Sections 1445, 6050J and
6050P of the Code by preparing and filing such tax and information returns, as
may be required.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property
prior to three years after its acquisition by the Trust Fund or, at the
expense of the Trust Fund, request more than 60 days prior to the day on which
such three-year period would otherwise expire, an extension of the three-year
grace period unless the Trustee shall have been supplied with an Opinion of
Counsel (such opinion not to be an expense of the Trustee) to the effect that
the holding by the Trust Fund of such Mortgaged Property subsequent to such
three-year period will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund as defined in section 860F of the Code or
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding, in which case the Trust Fund may continue to
hold such Mortgaged Property (subject to any conditions contained in such
Opinion of Counsel). Notwithstanding any other provision of this Agreement, no
Mortgaged Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or on
behalf of the Trust Fund in such a manner or pursuant to any terms that would
(i) cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of section 860G(a)(8) of the Code or (ii) subject the Trust
Fund to the imposition of any federal, state or local income taxes on the
income earned from such Mortgaged Property under section 860G(c) of the Code
or otherwise, unless the Master Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such taxes.
The decision of the Master Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Master Servicer that the
proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any Mortgaged
Properties acquired through foreclosure or other judicial proceeding, net of
reimbursement to the Master Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Servicing Fees, Advances, Servicing Advances and any management
fee paid or to be paid with respect to the management of such Mortgaged
Property, shall be applied to the payment of principal of, and interest on,
the related defaulted Mortgage Loans (with interest accruing as though such
Mortgage Loans were still current) and all such income shall be deemed, for
all purposes in this Agreement, to be payments on account of principal and
interest on the related Mortgage Notes and shall be deposited into the
Certificate Account. To the extent the income received during a Prepayment
Period is in excess of the amount attributable to amortizing principal and
accrued interest at the related Mortgage Rate on the related Mortgage Loan,
such excess shall be considered to be a partial Principal Prepayment for all
purposes hereof.
The Liquidation Proceeds from any liquidation of a Mortgage Loan, net of
any payment to the Master Servicer as provided above, shall be deposited in
the Certificate Account on the next succeeding Determination Date following
receipt thereof for distribution on the related Distribution Date, except that
any Excess Proceeds shall be retained by the Master Servicer as additional
servicing compensation.
The proceeds of any Liquidated Loan, as well as any recovery resulting
from a partial collection of Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the Master Servicer for any related unreimbursed Servicing Advances
and Servicing Fees, pursuant to Section 3.08(a)(v) or this Section 3.12;
second, to reimburse the Master Servicer for any unreimbursed Advances,
pursuant to Section 3.08(a)(ii) or this Section 3.12; third, to accrued and
unpaid interest (to the extent no Advance has been made for such amount) on
the Mortgage Loan or related REO Property, at the Net Mortgage Rate to the Due
Date occurring in the month in which such amounts are required to be
distributed; and fourth, as a recovery of principal of the Mortgage Loan.
(b) On each Determination Date, the Master Servicer shall determine the
respective aggregate amounts of Excess Proceeds and Realized Losses, if any,
for the related Prepayment Period.
(c) The Master Servicer, in its sole discretion, shall have the right to
elect (by written notice sent to the Trustee) to purchase for its own account
from the Trust Fund any Mortgage Loan that is 91 days or more delinquent at a
price equal to the Purchase Price. The Purchase Price for any Mortgage Loan
purchased hereunder shall be delivered to the Trustee for deposit in the
Certificate Account and the Trustee, upon receipt of such deposit and a
Request for Release from the Master Servicer in the form of Exhibit N hereto,
shall release or cause to be released to the purchaser of such Mortgage Loan
the related Mortgage File and shall execute and deliver such instruments of
transfer or assignment prepared by the purchaser of such Mortgage Loan, in
each case without recourse, as shall be necessary to vest in the purchaser of
such Mortgage Loan any Mortgage Loan released pursuant hereto and the
purchaser of such Mortgage Loan shall succeed to all the Trustee's right,
title and interest in and to such Mortgage Loan and all security and documents
related thereto. Such assignment shall be an assignment outright and not for
security. The purchaser of such Mortgage Loan shall thereupon own such
Mortgage Loan, and all security and documents, free of any further obligation
to the Trustee or the Certificateholders with respect thereto.
Section 3.13. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will promptly notify
the Trustee by delivering a Request for Release substantially in the form of
Exhibit N. Upon receipt of such request, the Trustee shall promptly release
the related Mortgage File to the Master Servicer, and the Trustee shall at the
Master Servicer's direction execute and deliver to the Master Servicer the
request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage in each case
provided by the Master Servicer, together with the Mortgage Note with written
evidence of cancellation thereon. The Master Servicer is authorized to cause
the removal from the registration on the MERS(R) System of such Mortgage and
to execute and deliver, on behalf of the Trustee and the Certificateholders or
any of them, any and all instruments of satisfaction or cancellation or of
partial or full release. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account, the Distribution Account, the Fixed Rate Carryover
Reserve Fund, the Adjustable Rate Carryover Reserve Fund or the related
subservicing account. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance any fidelity bond or errors or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee shall, upon delivery to the Trustee
of a Request for Release in the form of Exhibit M signed by a Servicing
Officer, release the Mortgage File to the Master Servicer. Subject to the
further limitations set forth below, the Master Servicer shall cause the
Mortgage File or documents so released to be returned to the Trustee when the
need therefor by the Master Servicer no longer exists, unless the Mortgage
Loan is liquidated and the proceeds thereof are deposited in the Certificate
Account, in which case the Trustee shall deliver the Request for Release to
the Master Servicer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master Servicer shall deliver or cause to be delivered to the
Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity. Notwithstanding the foregoing, the
Master Servicer shall cause possession of any Mortgage File or of the
documents therein that shall have been released by the Trustee to be returned
to the Trustee within 21 calendar days after possession thereof shall have
been released by the Trustee unless (i) the Mortgage Loan has been liquidated
and the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the Certificate Account, and the Master Servicer shall have delivered to
the Trustee a Request for Release in the form of Exhibit N or (ii) the
Mortgage File or document shall have 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 and the Master Servicer shall have delivered to the
Trustee an Officer's Certificate of a Servicing Officer certifying as to the
name and address of the Person to which the Mortgage File or the documents
therein were delivered and the purpose or purposes of such delivery.
Section 3.14. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or that otherwise
are collected by the Master Servicer as Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control of, the Master Servicer in respect
of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds, including but not limited to, any funds
on deposit in the Certificate Account, shall be held by the Master Servicer
for and on behalf of the Trustee and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of
this Agreement. The Master Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Certificate Account, Distribution Account, Fixed Rate Carryover Reserve Fund
or Adjustable Rate Carryover Reserve Fund or in any Escrow Account (as defined
in Section 3.06), or any funds that otherwise are or may become due or payable
to the Trustee for the benefit of the Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance, or
assert by legal action or otherwise any claim or right of set off against any
Mortgage File or any funds collected on, or in connection with, a Mortgage
Loan, except, however, that the Master Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Master Servicer under this Agreement.
Section 3.15. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer shall
be entitled to retain or withdraw from the Certificate Account out of each
payment of interest on a Mortgage Loan included in the Trust Fund an amount
equal to interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the related Mortgage Loan for the period covered by such interest
payment.
Additional servicing compensation in the form of any Excess Proceeds,
prepayment penalties, assumption fees, late payment charges, Prepayment
Interest Excess, and all income and gain net of any losses realized from
Permitted Investments shall be retained by the Master Servicer to the extent
not required to be deposited in the Certificate Account pursuant to Section
3.05 or 3.12(a) hereof. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any premiums for hazard insurance, as required by
Section 3.10 hereof and maintenance of the other forms of insurance coverage
required by Section 3.10 hereof) and shall not be entitled to reimbursement
therefor except as specifically provided in Sections 3.08 and 3.12 hereof.
Section 3.16. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of the Certificates and
the examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall be
afforded without charge, but only upon reasonable and prior written request
and during normal business hours at the offices of the Master Servicer
designated by it. Nothing in this Section shall limit the obligation of the
Master Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors and the failure of the Master Servicer to
provide access as provided in this Section as a result of such obligation
shall not constitute a breach of this Section.
Section 3.17. Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee on or
before May 31 of each year commencing May 31, 2000, 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 of the performance of
the Master Servicer under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and (iii) to the best of such
officer's knowledge, each Subservicer has fulfilled all its obligations under
its Subservicing 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. The Trustee shall
forward a copy of each such statement to each Rating Agency. Copies of such
statement shall be provided by the Trustee to any Certificateholder upon
request at the Master Servicer's expense, provided such statement is delivered
by the Master Servicer to the Trustee.
Section 3.18. Annual Independent Public Accountants' Servicing Statement;
Financial Statements.
On or before the later of (i) May 31 of each year, beginning with May 31,
2000 or (ii) within 30 days of the issuance of the annual audited financial
statements beginning with the audit for the period ending in 2000, the Master
Servicer at its expense shall cause a nationally recognized firm of
independent public accountants (who may also render other services to the
Master Servicer, the Seller or any affiliate thereof) that is a member of the
American Institute of Certified Public Accountants to furnish a report to the
Trustee, Depositor and the Seller in compliance with the Uniform Single
Attestation Program for Mortgage Bankers. Copies of such report shall be
provided by the Trustee to any Certificateholder upon request at the Master
Servicer's expense, provided such report is delivered by the Master Servicer
to the Trustee. Upon written request, the Master Servicer shall provide to the
Certificateholders its publicly available annual financial statements (or, for
so long as Countrywide Home Loans, Inc. is the Master Servicer hereunder, the
Master Servicer's parent company's publicly available annual financial
statements), if any, promptly after they become available.
ARTICLE IV.
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.
Subject to the conditions of this Article IV, the Master Servicer, as
required below, shall make an Advance and deposit such Advance in the
Certificate Account. Each such Advance shall be remitted to the Certificate
Account no later than 1:00 p.m. Pacific time on the Master Servicer Advance
Date in immediately available funds. The Master Servicer shall be obligated to
make any such Advance only to the extent that such advance would not be a
Nonrecoverable Advance. If the Master Servicer shall have determined that it
has made a Nonrecoverable Advance or that a proposed Advance or a lesser
portion of such Advance would constitute a Nonrecoverable Advance, the Master
Servicer shall deliver (i) to the Trustee for the benefit of the
Certificateholders funds constituting the remaining portion of such Advance,
if applicable, and (ii) to the Depositor, each Rating Agency and the Trustee
an Officer's Certificate setting forth the basis for such determination.
In lieu of making all or a portion of such Advance from its own funds,
the Master Servicer may (i) cause to be made an appropriate entry in its
records relating to the Certificate Account that any Amount Held for Future
Distributions has been used by the Master Servicer in discharge of its
obligation to make any such Advance and (ii) transfer such funds from the
Certificate Account to the Distribution Account. Any funds so applied and
transferred shall be replaced by the Master Servicer by deposit in the
Certificate Account no later than the close of business on the Business Day
immediately preceding the Distribution Date on which such funds are required
to be distributed pursuant to this Agreement. The Master Servicer shall be
entitled to be reimbursed from the Certificate Account for all Advances of its
own funds made pursuant to this Section as provided in Section 3.08. The
obligation to make Advances with respect to any Mortgage Loan shall continue
until such Mortgage Loan is paid in full or the related Mortgaged Property or
related REO Property has been liquidated or until the purchase or repurchase
thereof (or substitution therefor) from the Trust Fund pursuant to any
applicable provision of this Agreement, except as otherwise provided in this
Section 4.01.
Section 4.02. Reduction of Servicing Compensation in Connection with
Prepayment Interest Shortfalls.
In the event that any Mortgage Loan is the subject of a Prepayment
Interest Shortfall, the Master Servicer shall, to the extent of one-half of
the Servicing Fee for such Distribution Date, deposit into the Certificate
Account, as a reduction of the Servicing Fee (but not in excess of one-half
thereof) for such Distribution Date, no later than the close of business on
the Business Day immediately preceding such Distribution Date, an amount equal
to the Prepayment Interest Shortfall; and in case of such deposit, the Master
Servicer shall not be entitled to any recovery or reimbursement from the
Depositor, the Trustee, the Trust Fund or the Certificateholders.
Section 4.03. REMIC Distributions.
On each Distribution Date the Trustee shall allocate distributions to the
REMIC BTF, REMIC BTV Regular Interests, REMIC 1 Regular Interests, the REMIC 2
Regular Interests, the REMIC 3 Regular Interests, and the REMIC 4 Regular
Interests in accordance with Section 4.06 hereof.
Section 4.04. Distributions.
(a) On each Distribution Date, the Fixed Rate Interest Funds for such
Distribution Date shall be allocated by the Trustee from the Distribution
Account in the following order of priority:
(i) to the Class AF-1, Class AF-2, Class AF-3, Class AF-4,
Class AF-5 and Class AF-6 Certificates, the Current Interest and any
Interest Carryforward Amount for each such Class; provided, however,
that if the Fixed Rate Interest Funds are not sufficient to make a
full distribution of the aggregate Current Interest and the aggregate
Interest Carryforward Amount for each Class of the Fixed Rate Class A
Certificates, such Fixed Rate Interest Funds will be distributed pro
rata among each such Class, based on the ratio of (x) the portion of
the Fixed Rate Class A Current Interest and the portion of any Fixed
Rate Class A Interest Carryforward Amount attributable to such Class
to (y) the portion of Fixed Rate Class A Current Interest and the
portion of any Fixed Rate Class A Interest Carryforward Amount
attributable to all such Classes;
(ii) to the Class MF-1 Certificates, the Current Interest
for such Class;
(iii) to the Class MF-2 Certificates, the Current Interest for
such Class;
(iv) to the Class BF Certificates, the Current Interest for
such Class; and
(v) any remainder shall constitute part of the Fixed Rate
Excess Cashflow for such Distribution Date.
(b) On each Distribution Date, the Adjustable Rate Interest Funds for
such Distribution Date shall be allocated by the Trustee from the Distribution
Account in the following order of priority:
(i) (A) with respect to the Adjustable Rate Interest Funds
attributable to Loan Subgroup 1A, to the Class AV-1 Certificates, the
Current Interest and any Interest Carryforward Amount for such Class
and (B) with respect to the Adjustable Rate Interest Funds
attributable to Loan Subgroup 2A, to the Class AV-2 Certificates, the
Current Interest and any Interest Carryforward Amount for such Class;
(ii) to the Class MV-1 Certificates, the Current Interest for
such Class;
(iii) to the Class MV-2 Certificates, the Current Interest
for such Class;
(iv) to the Class BV Certificates, the Current Interest for
such Class; and
(v) any remainder shall constitute part of the Adjustable
Rate Excess Cashflow for such Distribution Date.
(c) On each Distribution Date, the Fixed Rate Principal Distribution
Amount for such Distribution Date shall be allocated by the Trustee from the
Distribution Account in the following order of priority:
(i) with respect to any Distribution Date prior to the Fixed
Rate Stepdown Date or as to which a Fixed Rate Trigger Event is in
effect:
(A) to the Fixed Rate Class A Certificates, in the order and
priorities set forth in Section 4.04(e)(i) hereof;
(B) to the Class MF-1 Certificates, until the Certificate
Principal Balance thereof is reduced to zero;
(C) to the Class MF-2 Certificates, until the Certificate
Principal Balance thereof is reduced to zero;
(D) to the Class BF Certificates, until the Certificate
Principal Balance thereof is reduced to zero; and
(E) any remainder shall constitute part of the Fixed Rate
Excess Cashflow for such Distribution Date.
(ii)with respect to each Distribution Date on and after the
Fixed Rate Stepdown Date and as to which a Fixed Rate Trigger Event
is not in effect:
(A) to the Fixed Rate Class A Certificates, the Fixed Rate
Class A Principal Distribution Amount, in the order and priorities
set forth in Section 4.04(e)(i) hereof;
(B) to the Class MF-1 Certificates, the Class MF-1 Principal
Distribution Amount, until the Certificate Principal Balance thereof
is reduced to zero;
(C) to the Class MF-2 Certificates, the Class MF-2 Principal
Distribution Amount, until the Certificate Principal Balance thereof
is reduced to zero;
(D) to the Class BF Certificates, the Class BF Principal
Distribution Amount, until the Certificate Principal Balance thereof
is reduced to zero; and
(E) any remainder shall constitute part of the Fixed Rate
Excess Cashflow for such Distribution Date.
(d) On each Distribution Date, the Adjustable Rate Principal Distribution
Amount for such Distribution Date shall be allocated by the Trustee from the
Distribution Account in the following order of priority:
(i) with respect to any Distribution Date prior to the
Adjustable Rate Stepdown Date or as to which an Adjustable Rate
Trigger Event is in effect:
(A) to the Adjustable Rate Class A Certificates, in the
order and priorities set forth in Section 4.04(e)(ii) hereof.
(B) to the Class MV-1 Certificates, until the Certificate
Principal Balance thereof is reduced to zero;
(C) to the Class MV-2 Certificates, until the Certificate
Principal Balance thereof is reduced to zero;
(D) to the Class BV Certificates, until the Certificate
Principal Balance thereof is reduced to zero; and
(E) any remainder shall constitute part of the Adjustable
Rate Excess Cashflow for such Distribution Date.
(ii)with respect to each Distribution Date on and after the
Adjustable Rate Stepdown Date and as to which an Adjustable Rate
Trigger Event is not in effect:
(A) to the Adjustable Rate Class A Certificates, the
Adjustable Rate Class A Principal Distribution Amount, in the order
and priorities set forth in Section 4.04(e)(ii) hereof;
(B) to the Class MV-1 Certificates, the Class MV-1 Principal
Distribution Amount, until the Certificate Principal Balance thereof
is reduced to zero;
(C) to the Class MV-2 Certificates, the Class MV-2 Principal
Distribution Amount, until the Certificate Principal Balance thereof
is reduced to zero;
(D) to the Class BV Certificates, the Class BV Principal
Distribution Amount, until the Certificate Principal Balance thereof
is reduced to zero; and
(E) any remainder shall constitute part of the Adjustable
Rate Excess Cashflow for such Distribution Date.
(e) (i) On each Distribution Date, the Fixed Rate Principal Distribution
Amount or the Fixed Rate Class A Principal Distribution Amount, as applicable,
allocated under Section 4.04(c) to the Fixed Rate Class A Certificates is
required to be further allocated by the Trustee to the Fixed Rate Class A
Certificates in the following order and priority: first to the Class AF-6
Certificates, the Class AF-6 Principal Distribution Amount, until the
Certificate Principal Balance thereof is reduced to zero, and then the
remainder sequentially to the Class AF-1, Class AF-2, Class AF-3 , Class AF-4,
Class AF-5 and Class AF-6 Certificates, in that order, until the respective
Certificate Principal Balances of such Classes are reduced to zero; provided
that on any Distribution Date on which the aggregate Certificate Principal
Balances of all Fixed Rate Class A Certificates are greater than the Stated
Principal Balance as of such Distribution Date of the Fixed Rate Mortgage
Loans, then the Fixed Rate Principal Distribution Amount or the Fixed Rate
Class A Principal Distribution Amount, as applicable, will be distributed pro
rata among each Class of Fixed Rate Class A Certificates (in accordance with
the Certificate Principal Balance thereof) and not sequentially.
(ii) On each Distribution Date, the Adjustable Rate Principal
Distribution Amount or the Adjustable Rate Class A Principal Distribution
Amount, as applicable, allocated under Section 4.04(d) to the Adjustable Rate
Class A Certificates is required to be further allocated by the Trustee to the
Adjustable Rate Class A Certificates in the following order and priority: (A)
(1) the Loan Subgroup 1A Percentage thereof to the Class AV-1 Certificates
until the Certificate Principal Balance thereof is reduced to zero and (2) the
Loan Subgroup 2A Percentage thereof to the Class AV-2 Certificates until the
Certificate Principal Balance thereof is reduced to zero, and (B) if the
Certificate Principal Balance of either Class of Adjustable Rate Class A
Certificates is reduced to zero, the portion of the Adjustable Rate Principal
Distribution Amount or Adjustable Rate Class A Principal Distribution Amount,
as applicable, that would have been distributed to such Class pursuant to the
foregoing Section 4.04(e)(ii)(A) shall be distributed to the remaining Class
of Adjustable Rate Class A Certificates until the Certificate Principal
Balance thereof is reduced to zero. Notwithstanding the foregoing: (x) on the
April 2000 Distribution Date, the portion of the Adjustable Rate Principal
Distribution Amount allocable to (1) amounts remaining on deposit in the
Pre-Funding Account that were allocated to purchase Subsequent Mortgage Loans
to be included in Loan Subgroup 1A shall be allocated to the Class AV-1
Certificates and (2) amounts remaining on deposit in the Pre-Funding Account
that were allocated to purchase Subsequent Mortgage Loans to be included in
Loan Subgroup 2A shall be allocated to the Class AV-2 Certificates, and (y) on
any Distribution Date on which the Certificate Principal Balances of the
Adjustable Rate Class A Certificates are greater than the Stated Principal
Balance of the Mortgage Loans in the Adjustable Rate Loan Group, the
Adjustable Rate Principal Distribution Amount or Adjustable Rate Class A
Principal Distribution Amount, as applicable, will be distributed to the Class
AV-1 Certificates and the Class AV-2 Certificates pro rata on the basis of
their respective Certificate Principal Balances.
(f) On each Distribution Date, the Trustee shall make the following
allocations from the Distribution Account of, first, the Fixed Rate Excess
Cashflow and, second (for distribution pursuant to clauses (ii) through (viii)
below only), of the Adjustable Rate Remainder Excess Cashflow, in the
following order of priority (it being understood that at no time shall any
Adjustable Rate Remainder Excess Cashflow be distributed pursuant to clause
(i) below):
(i) for distribution as part of the Fixed Rate Principal
Distribution Amount, the Fixed Rate Extra Principal Distribution
Amount;
(ii) to the Class MF-1 Certificates, the Class MF-1 Interest
Carryforward Amount;
(iii)to the Class MF-1 Certificates, the Class MF-1 Unpaid
Realized Loss Amount;
(iv) to the Class MF-2 Certificates, the Class MF-2 Interest
Carryforward Amount;
(v) to the Class MF-2 Certificates, the Class MF-2 Unpaid
Realized Loss Amount;
(vi) to the Class BF Certificates, the Class BF Interest
Carryforward Amount;
(vii)to the Class BF Certificates, the Class BF Unpaid
Realized Loss Amount; and
(viii) the remainder (except for amounts representing
Adjustable Rate Remainder Excess Cashflow) shall constitute Fixed
Rate Remainder Excess Cashflow and shall be allocated as provided in
Section 4.04(g).
(g) On each Distribution Date, the Trustee shall make the following
allocations from the Distribution Account of, first, the Adjustable Rate
Excess Cashflow and, second (for distribution pursuant to clauses (ii) through
(viii) below only), of the Fixed Rate Remainder Excess Cashflow, in the
following order of priority (it being understood that at no time shall any
Fixed Rate Remainder Excess Cashflow be distributed pursuant to clause (i)
below):
(i) for distribution as part of the Adjustable Rate Principal
Distribution Amount, the Adjustable Rate Extra Principal Distribution
Amount;
(ii) to the Class MV-1 Certificates, the Class MV-1 Interest
Carryforward Amount;
(iii)to the Class MV-1 Certificates, the Class MV-1
Unpaid Realized Loss Amount;
(iv) to the Class MV-2 Certificates, the Class MV-2 Interest
Carryforward Amount;
(v) to the Class MV-2 Certificates, the Class MV-2 Unpaid
Realized Loss Amount;
(vi)to the Class BV Certificates, the Class BV Interest
Carryforward Amount;
(vii) to the Class BV Certificates, the Class BV Unpaid
Realized Loss Amount; and
(viii) the remainder (except for amounts representing Fixed
Rate Remainder Excess Cashflow) shall constitute Adjustable Rate
Remainder Excess Cashflow and shall be allocated as provided in
Section 4.04(h).
(h) On each Distribution Date the Trustee shall make the following
allocations from the Distribution Account of the Fixed Rate Remainder Excess
Cashflow in the following order of priority:
(i) for allocation pursuant to Section 4.04(g);
(ii) to the Fixed Rate Carryover Reserve Fund and then pro
rata to the holders of the Fixed Rate Certificates in an amount equal
to any Fixed Net Rate Carryover for such Class;
(iii) to the Fixed Rate Carryover Reserve Fund, an amount
equal to the Required Fixed Rate Carryover Reserve Fund Deposit;
(iv) to the Class BF-IO Certificates, the Class BF-IO
Distributable Amount; together with any amounts withdrawn from the
Fixed Rate Carryover Reserve Fund for distribution to the Class BF-IO
Certificates pursuant to Section 4.08(c) on such date;
(v) to the Class BF-IO Certificates, the Class BF-IO
Distributable Amount;
(vi) to the Master Servicer, in payment of the Extra Master
Servicing Fee pursuant to Section 4.08 hereof for such Distribution
Date; and
(vii) any remainder to the Class R Certificates.
(i) On each Distribution Date the Trustee shall make the following
allocations from the Distribution Account of the Adjustable Rate Remainder
Excess Cashflow in the following order of priority:
(i) for allocation pursuant to Section 4.04(f);
(ii) to the Adjustable Rate Carryover Reserve Fund and then
in the following order and priority (1) first, pro rata to the
holders of the Adjustable Rate Certificates in an amount equal to any
Adjustable Rate Certificate Carryover for such Class and (2) second,
to the holders of the Class AF-1 Certificates, any remaining amount
of the Fixed Rate Certificate Carryover for such Class after the
allocation provided for in Section 4.04(h)(ii);
(iii) to the Adjustable Rate Carryover Reserve Fund, an
amount equal to the Required Adjustable Rate Carryover Reserve
Fund Deposit;
(iv)to the Class BV-IO Certificates, the Class BV-IO
Distributable Amount; together with any amounts withdrawn from the
Adjustable Rate Carryover Reserve Fund for distribution to the Class
BV-IO Certificates pursuant to Section 4.09(c) and (d) on such date;
(v) to the Master Servicer, in payment of the Extra Master
Servicing Fee for such Distribution Date pursuant to Section 4.07
hereof; and
(vi)any remainder to the Class R Certificates.
(j) To the extent that a Class of Fixed Rate Certificates receives
interest in excess of the Fixed Net Rate Cap, such interest shall be treated
as having been paid to the Fixed Rate Carryover Reserve Fund and then paid by
the Fixed Rate Carryover Reserve Fund to such Certificateholders; provided,
however, that in the case of the Class AF-1 Certificates, to the extent such
interest is paid pursuant to Section 4.04(i)(ii), it shall be treated as
having been paid to the Adjustable Rate Carryover Reserve Fund and then paid
by the Adjustable Rate Carryover Reserve Fund to the Class AF-1
Certificateholders. Amounts deposited to the Fixed Rate Carryover Reserve Fund
pursuant to this clause (other than the proviso) and Section 4.04 (h)(ii) and
(iii) shall be deemed to have been distributed first to the Class BF-IO
Certificateholders for applicable tax purposes. Amounts deposited to the
Adjustable Rate Carryover Reserve Fund pursuant to the proviso of the first
sentence of this clause and Section 4.04 (h)(ii) shall be deemed to have been
distributed first to the Class BV-IO Certificateholders for applicable tax
purposes.
(k) To the extent that a Class of Adjustable Rate Certificates receives
interest in excess of the Weighted Maximum Rate Cap, such interest shall be
treated as having been paid to the Adjustable Rate Carryover Reserve Fund and
then paid by the Adjustable Rate Carryover Reserve Fund to such
Certificateholders. Amounts deposited to the Adjustable Rate Carryover Reserve
Fund pursuant to this clause and the preceding clauses (i)(ii) and (iii) shall
be deemed to have been distributed first to the Class BV-IO Certificateholders
for applicable tax purposes.
(l) On each Distribution Date, the Trustee shall allocate the Applied
Realized Loss Amount for the Fixed Rate Certificates to reduce the Certificate
Principal Balances of the Fixed Rate Subordinated Certificates in the
following order of priority:
(i) to the Class BF Certificates until the Class BF
Certificate Principal Balance is reduced to zero;
(ii)to the Class MF-2 Certificates until the Class MF-2
Certificate Principal Balance is reduced to zero; and
(iii) to the Class MF-1 Certificates until the Class MF-1
Certificate Principal Balance is reduced to zero.
(m) On each Distribution Date, the Trustee shall allocate
the Applied Realized Loss Amount for the Adjustable Rate Certificates to
reduce the Certificate Principal Balances of the Adjustable Rate Subordinated
Certificates in the following order of priority:
(i) to the Class BV Certificates until the Class BV
Certificate Principal Balance is reduced to zero;
(ii) to the Class MV-2 Certificates until the Class MV-2
Certificate Principal Balance is reduced to zero; and
(iii) to the Class MV-1 Certificates until the Class MV-1
Certificate Principal Balance is reduced to zero.
(n) Subject to Section 9.02 hereof respecting the final
distribution, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either by
wire transfer in immediately available funds to the account of such holder at
a bank or other entity having appropriate facilities therefor, if (i) such
Holder has so notified the Trustee at least 5 Business Days prior to the
related Record Date and (ii) such Holder shall hold Regular Certificates with
aggregate principal denominations of not less than $1,000,000 or evidencing a
Percentage Interest aggregating 10% or more with respect to such Class or, if
not, by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register. Notwithstanding
the foregoing, but subject to Section 9.02 hereof respecting the final
distribution, distributions with respect to Certificates registered in the
name of a Depository shall be made to such Depository in immediately available
funds.
On or before 5:00 p.m. Pacific time on the fifth Business Day following
each Determination Date (but in no event later than 5:00 p.m. Pacific time on
the third Business Day before the related Distribution Date), the Master
Servicer shall deliver a report to the Trustee in the form of a computer
readable magnetic tape (or by such other means as the Master Servicer and the
Trustee may agree from time to time) containing such data and information as
agreed to by the Master Servicer and the Trustee (including, without
limitation, the actual mortgage rate for each Fixed Rate Credit Comeback Loan)
such as to permit the Trustee to prepare the Monthly Statement to
Certificateholders and make the required distributions for the related
Distribution Date (the "Remittance Report"). The Trustee shall, not later than
9:00 a.m. Pacific time on the Master Servicer Advance Date, other than any
Master Servicer Advance Date relating to any Distribution Date on which the
proceeds of any Optional Termination are being distributed, (i) furnish by
telecopy a statement to the Master Servicer (the information in such statement
to be made available to Certificateholders by the Trustee on request) setting
forth the Fixed Rate Interest Funds, Fixed Rate Principal Funds, Adjustable
Rate Interest Funds and Adjustable Rate Principal Funds for such Distribution
Date and the amount to be withdrawn from the Certificate Account and (ii)
determine (and notify the Master Servicer by telecopy of the results of such
determination) the amount of Advances to be made by the Master Servicer in
respect of the related Distribution Date; provided that no Advance shall be
made if it would be a Nonrecoverable Advance; provided further that any
failure by the Trustee to notify the Master Servicer will not relieve the
Master Servicer from any obligation to make any such Advances. The Trustee
shall not be responsible to recompute, recalculate or verify information
provided to it by the Master Servicer and shall be permitted to conclusively
rely on any information provided to it by the Master Servicer.
Section 4.05. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
cause to be forwarded by first class mail to each Holder of a Class of
Certificates of the Trust Fund, the Master Servicer and the Depositor a
statement setting forth for the Certificates:
(i) the amount of the related distribution to Holders of
each Class allocable to principal, separately identifying (A) the
aggregate amount of any Principal Prepayments included therein, (B)
the aggregate of all scheduled payments of principal included therein
and (C) the Fixed Rate Extra Principal Distribution Amount (if any)
and the Adjustable Rate Extra Principal Distribution Amount (if any);
(ii the amount of such distribution to Holders of each Class
allocable to interest;
(iii)any Interest Carryforward Amount for each Class;
(iv)the Certificate Principal Balance of each Class after
giving effect (i) to all distributions allocable to principal on such
Distribution Date and (ii) the allocation of any Applied Realized
Loss Amounts for such Distribution Date;
(v) the aggregate of the Stated Principal Balance of the
Mortgage Loans for the Mortgage Pool, each Loan Group and each Loan
Subgroup;
(vi)the related amount of the Servicing Fees paid to or
retained by the Master Servicer for the related Due Period;
(vii) the Pass-Through Rate for each Class of Certificates
with respect to the current Accrual Period;
(viii) the Fixed Net Rate and the Adjustable Net Rate;
(ix) the amount of Advances for each Certificate Group
included in the distribution on such Distribution Date;
(x) the cumulative amount of Applied Realized Loss Amounts
for each Certificate Group to date;
(xi)the number and aggregate principal amounts of Mortgage
Loans in each Loan Group and each Loan Subgroup: (A) Delinquent
(exclusive of Mortgage Loans in foreclosure) (1) 30 days, (2) 31 to
60 days, (3) 61 to 90 days and (4) 91 or more days, and (B) in
foreclosure and Delinquent (1) 30 days, (2) 31 to 60 days, (3) 61 to
90 days and (4) 91 or more days, in each case as of the close of
business on the last day of the calendar month preceding such
Distribution Date;
(xii) with respect to any Mortgage Loan that became an
REO Property during the preceding calendar month in each Loan Group
and Loan Subgroup, the loan number and Stated Principal Balance of
such Mortgage Loan;
(xiii) and the aggregate Stated Principal Balances of
any Mortgage Loans converted to REO Properties, in each Loan Group
and each Loan Subgroup as of the close of business on the
Determination Date preceding such Distribution Date;
(xiv) the aggregate Stated Principal Balances of all
Liquidated Loans in each Loan Group;
(xv)with respect to any Liquidated Loan in each Loan Group
and each Loan Subgroup, the loan number and Stated Principal Balance
relating thereto;
(xvi) with respect to each Loan Group, whether a Trigger
Event has occurred;
(xvii) any Fixed Net Rate Carryover paid and any remaining
Fixed Net Rate Carryover remaining on the Fixed Rate Certificates on
such Distribution Date;
(xviii) any Adjustable Rate Certificate Carryover paid and
any remaining Adjustable Rate Certificate Carryover remaining on each
Class of Adjustable Rate Certificates on such Distribution Date;
(xix) with respect to the second Distribution Date, the
number and aggregate balance of any Delay Delivery Mortgage Loans not
delivered within the time periods specified in the definition of
Delay Delivery Mortgage Loans;
(xx)the Adjustable Rate Specified Overcollateralization Amount
and the Fixed Rate Specified Overcollateralization Amount;
(xxi) with respect the March 2002 Distribution Date,
(A) the amount on deposit in the Pre-Funding Account (if any) on the
related Determination Date (specifying the portions thereof allocated
to purchase Subsequent Mortgage Loans to be included in the Fixed
Rate Loan Group, Loan Subgroup 1A and Loan Subgroup 2A,
respectively), (B) the date of any Subsequent Transfer Dates
occurring on or prior to the related Determination Date, and (C) the
aggregate Stated Principal Balances of the Subsequent Mortgage Loans
for such Subsequent Transfer Dates (specifying the aggregate Stated
Principal Balances such Subsequent Mortgage Loans included in the
Fixed Rate Loan Group, Loan Subgroup 1A and Loan Subgroup 2A as the
case may be), to the extent such information is available on or prior
to the related Determination Date; and
(xxii) with respect to the April 2000 Distribution Date, (A)
the remaining amounts in Pre-Funding Account (if any) at the end of
the Funding Period that are included in (x) the Fixed Rate Principal
Distribution Amount and (y) the Adjustable Rate Principal
Distribution Amount (in the case of clause (y), specifying the
portion thereof allocated to the Class AV-1 Certificates and the
portion thereof allocated to the Class AV-2 Certificates), (B) the
date of any Subsequent Transfer Dates occurring on or prior to the
related Determination Date and after the prior Determination Date,
and (C) the aggregate Stated Principal Balances of the Subsequent
Mortgage Loans for such Subsequent Transfer Dates (specifying the
aggregate Stated Principal Balances such Subsequent Mortgage Loans
included in the Fixed Rate Loan Group, Loan Subgroup 1A and Loan
Subgroup 2A as the case may be).
(b) The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness and accuracy
of the information derived from the Master Servicer. The Trustee will send a
copy of each statement provided pursuant to this Section 4.05 to each Rating
Agency.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(i), (a)(ii) and (a)(vi) of this Section
4.05 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 provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Upon filing with the Internal Revenue Service, the Trustee shall
furnish to the Holders of the Class R Certificates the Form 1066 and each Form
1066Q and shall respond promptly to written requests made not more frequently
than quarterly by any Holder of Class R Certificates with respect to the
following matters:
(i) The original projected principal and interest cash flows
on the Closing Date on each Class of regular and residual interests
created hereunder and on the Mortgage Loans, based on the Prepayment
Assumption;
(ii)The projected remaining principal and interest cash
flows as of the end of any calendar quarter with respect to each
Class of regular and residual interests created hereunder and the
Mortgage Loans, based on the Prepayment Assumption;
(iii) The applicable Prepayment Assumption and any
interest rate assumptions used in determining the projected principal
and interest cash flows described above;
(iv)The original issue discount (or, in the case of the
Mortgage Loans, market discount) or premium accrued or amortized
through the end of such calendar quarter with respect to each Class
of regular or residual interests created hereunder and to the
Mortgage Loans, together with each constant yield to maturity used in
computing the same;
(v) The treatment of losses realized with respect to the
Mortgage Loans or the regular interests created hereunder, including
the timing and amount of any cancellation of indebtedness income of
the REMIC with respect to such regular interests or bad debt
deductions claimed with respect to the Mortgage Loans;
(vi)The amount and timing of any non-interest expenses of the
REMIC; and
(vii) Any taxes (including penalties and interest)
imposed on the REMIC, including, without limitation, taxes on
"prohibited transactions," "contributions" or "net income from
foreclosure property" or state or local income or franchise taxes.
The information pursuant to clauses (i), (ii), (iii) and (iv) above shall
be provided by the Depositor pursuant to Section 8.11.
Section 4.06. REMIC BTF, REMIC BTV, REMIC 1, REMIC 2, REMIC 3, and REMIC
4 Allocations.
On each Distribution Date after the application of principal prepayments
and Realized Losses, (i) each REMIC BTF Credit Comeback Loan Regular Interest
will have the principal balance and Mortgage Rate of corresponding Fixed Rate
Credit Comeback Loan. The Class BTF-1 will be allocated Realized Losses and
principal prepayments in the manner that Realized Losses and principal
prepayments are generated by the Fixed Rate Mortgage Loans which comprise its
principal balance. The Class BTV-1 will be allocated Realized Losses and
principal prepayments in the manner that Realized Losses and principal
prepayments are generated by the Adjustable Rate Mortgage Loans which comprise
its principal balance.
(a) The initial principal balances of the Class T1-F1, Class T1-F2, and
Class T1-F3 Interests shall equal 98%, 1%, and 1%, respectively, of the Stated
Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off Date. On
each Distribution Date, 98% of all Fixed Rate Principal Funds for the related
Due Period shall be allocated to the Class T1-F1 Interest. Remaining amounts
of Fixed Rate Principal Funds for the related Due Period shall be allocated
first to the Class T1-F3 Interest up to an amount equal to 2% of any amount
that represents a Fixed Rate Adjusted Overcollateralization Release Amount
with respect to such Distribution Date and then equally between the Class
T1-F2 and Class T1-F3 Interests. Interest accruing on the Class T1-F3 Interest
in respect of each Distribution Date in an amount equal to 1% of the increase
in the Fixed Rate Adjusted Overcollateralization Amount from the immediately
preceding Distribution Date shall be deferred and added to the principal
balance of the Class T1-F3 Interest. The amount of interest accrued and
deferred on the Class T1-F3 Interest in accordance with the preceding sentence
in respect of each Distribution Date shall be distributed as principal on such
date to the Class T1-F2 Interest.
(b) On each Distribution Date, Realized Losses with respect to the Fixed
Rate Mortgage Loans for such date shall be allocated 98% to the Class T1-F1
Interest. The remaining 2% of such Realized Losses shall be allocated to the
Class T1-F3 Interest to the extent that the principal balance of the Class
T1-F3 Interest exceeds 1% of the aggregate of the Stated Principal Balance of
the Fixed Rate Mortgage Loans as of such date and then equally between the
Class T1-F2 and Class T1-F3 Interests.
(c) The initial principal balances of the Class T1-V1, Class T1-V2, and
Class T1-V3 Interests shall equal 98%, 1%, and 1%, respectively, of the Stated
Principal Balance of the Adjustable Rate Mortgage Loans as of the Cut-off
Date. On each Distribution Date, 98% of all Adjustable Rate Principal Funds
for the related Due Period shall be allocated to the Class T1-V1 Interest.
Remaining amounts of Adjustable Rate Principal Funds for the related Due
Period shall be allocated first to the Class T1-V3 Interest up to an amount
equal to 2% of any amount that represents an Adjustable Rate Adjusted
Overcollateralization Release Amount with respect to such Distribution Date
and then equally between the Class T1-V2 and Class T1-V3 Interests. Interest
accruing on the Class T1-V3 Interest in respect of each Distribution Date in
an amount equal to 1% of the increase in the Adjustable Rate Adjusted
Overcollateralization Amount from the immediately preceding Distribution Date
shall be deferred and added to the principal balance of the Class T1-V3
Interest. The amount of interest accrued and deferred on the Class T1-V3
Interest in accordance with the preceding sentence in respect of each
Distribution Date shall be distributed as principal on such date to the Class
T1-V2 Interest.
(d) On each Distribution Date, Realized Losses with respect to the
Adjustable Rate Mortgage Loans for such date shall be allocated 98% to the
Class T1-V1 Interest. The remaining 2% of such Realized Losses shall be
allocated to the Class T1-V3 Interest to the extent that the principal balance
of the Class T1-V3 Interest exceeds 1% of the aggregate of the Stated
Principal Balance of the Adjustable Rate Mortgage Loans as of such date and
then equally between the Class T1-V2 and Class T1-V3 Interests.
(e) The initial principal balances of the Class T2-F1, Class T2-F2, and
Class T2-F3 Interests shall equal 98%, 1%, and 1%, respectively, of the Stated
Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off Date. The
Class T2-F4 Interest shall not have a principal balance and on each
Distribution Date will have a notional principal balance equal to the
principal balance of the Class T2-F2 Interest. On each Distribution Date, 98%
of all Fixed Rate Principal Funds for the related Due Period shall be
allocated to the Class T2-F1 Interest. Remaining amounts of Fixed Rate
Principal Funds for the related Due Period shall be allocated first to the
Class T2-F3 Interest up to an amount equal to 2% of any amount that represents
a Fixed Rate Adjusted Overcollateralization Release Amount with respect to
such Distribution Date and then equally between the Class T2-F2 and Class
T2-F3 Interests. Interest accruing on the Class T2-F3 Interest in respect of
each Distribution Date in an amount equal to 1% of the increase in the Fixed
Rate Adjusted Overcollateralization Amount from the immediately preceding
Distribution Date shall be deferred and added to the principal balance of the
Class T2-F3 Interest. The amount of interest accrued and deferred on the Class
T2-F3 Interest in accordance with the preceding sentence in respect of each
Distribution Date shall be distributed as principal on such date to the Class
T2-F2 Interest.
(f) On each Distribution Date, Realized Losses with respect to the Fixed
Rate Mortgage Loans for such date shall be allocated 98% to the Class T2-F1
Interest. The remaining 2% of such Realized Losses shall be allocated to the
Class T2-F3 Interest to the extent that the principal balance of the Class
T2-F3 Interest exceeds 1% of the aggregate of the Stated Principal Balance of
the Fixed Rate Mortgage Loans as of such date and then equally between the
Class T2-F2 and Class T2-F3 Interests.
(g) The initial principal balances of the Class T2-V1, Class T2-V2, and
Class T2-V3 Interests shall equal 98%, 1%, and 1%, respectively, of the Stated
Principal Balance of the Adjustable Rate Mortgage Loans as of the Cut-off
Date. The Class T2-V4 Interest shall not have a principal balance and on each
Distribution Date will have a notional principal balance equal to the
principal balance of the Class T2-V2 Interest. On each Distribution Date, 98%
of all Adjustable Rate Principal Funds for the related Due Period shall be
allocated to the Class T2-V1 Interest. Remaining amounts of Adjustable Rate
Principal Funds for the related Due Period shall be allocated first to the
Class T2-V3 Interest up to an amount equal to 2% of any amount that represents
an Adjustable Rate Adjusted Overcollateralization Release Amount with respect
to such Distribution Date and then equally between the Class T2-V2 and Class
T2-V3 Interests. Interest accruing on the Class T2-V3 Interest in respect of
each Distribution Date in an amount equal to 1% of the increase in the
Adjustable Rate Adjusted Overcollateralization Amount from the immediately
preceding Distribution Date shall be deferred and added to the principal
balance of the Class T2-V3 Interest. The amount of interest accrued and
deferred on the Class T2-V3 Interest in accordance with the preceding sentence
in respect of each Distribution Date shall be distributed as principal on such
date to the Class T2-V2 Interest.
(h) On each Distribution Date, Realized Losses with respect to the
Adjustable Rate Mortgage Loans for such date shall be allocated 98% to the
Class T2-V1 Interest. The remaining 2% of such Realized Losses shall be
allocated to the Class T2-V3 Interest to the extent that the principal balance
of the Class T2-V3 Interest exceeds 1% of the aggregate of the Stated
Principal Balance of the Adjustable Rate Mortgage Loans as of such date and
then equally between the Class T2-V2 and Class T2-V3 Interests.
(i) On each Distribution Date, the Class T3-F1, Class T3-F2, Class T3-F3,
Class T3-F4, Class T3-F5, Class T3-F6, Class T3-F7, Class T3-F8, Class T3-F9,
Class T3-V1, Class T3-V2, Class T3-V3, Class T3-V4 and Class T3-V5 Interests
shall be entitled to receive principal distributions that correspond to the
principal distributions on the corresponding class of Interests in REMIC 4
(the Class T4-F1, Class T4-F2, Class T4-F3, Class T4-F4, Class T4-F5, Class
T4-F6, Class T4-F7, Class T4-F8, Class T4-F9, Class T4-V1, Class T4-V2, Class
T4-V3, Class T4-V4 and Class T4-V5 Interests, respectively).
(j) On each Distribution Date, interest that accrues with respect to the
Class T3-F1IO, Class T3-F2IO and Class T3-F3IO Interests shall be distributed
as principal on the Class T3-F1, Class T3-F2, Class T3-F3, Class T3-F4, Class
T3-F5, Class T3-F6, Class T3-F7, Class T3-F8 and Class T3-F9 Interests to
achieve the Fixed Rate Specified Overcollateralization Amount for such
Distribution Date, and to the extent not needed for this purpose, shall be
distributed as principal on the Class T3-V1, Class T3-V2, Class T3-V3, Class
T3-V4 and Class T3-V5 Interests to achieve the Fixed Rate Specified
Overcollateralization Amount for such Distribution Date, and to the extent not
needed for either purpose, shall be distributed with respect to the Class
T3-F1IO, Class T3-F2IO and Class T3-F3IO Interests in proportion to their
entitlements to current and accrued undistributed interest. On each
Distribution Date, interest that accrues with respect to the Class T3-V1IO,
Class T3-V2IO, and Class T3-V3IO Interests shall be distributed as principal
on the Class T3-V1, Class T3-V2, Class T3-V3, Class T3-V4 and Class T3-V5
Interests to achieve the Adjustable Rate Specified Overcollateralization
Amount for such Distribution Date, and to the extent not needed for this
purpose, shall be distributed as principal on the Class T3-F1, Class T3-F2,
Class T3-F3, Class T3-F4, Class T3-F5, Class T3-F6, Class T3-F7, Class T3-F8,
and Class T3-F9 Interests to achieve the Adjustable Rate Specified
Overcollateralization Amount for such Distribution Date, and to the extent not
needed for either purpose, shall be distributed with respect to the Class
T3-V1IO, Class T3-V2IO, and Class T3-V3IO Interests in proportion to their
entitlements to current and accrued undistributed interest. Interest that
accrues on the Class T3-F1IO, Class T3-F2IO, Class T3-F1IO, Class T3-FOC,
Class T3-V1IO, Class T3-V2IO, Class T3-V3IO, and Class T3-VOC Interests shall
not itself bear interest.
Notwithstanding any provision herein, on any Distribution Date, (1) in no
event shall the interest that accrues with respect to the Class T3-V1IO, Class
T3-V2IO, and Class T3-V3IO Interests that is distributed as principal on the
Class T3-F1, Class T3-F2, Class T3-F3, Class T3-F4, Class T3-F5, Class T3-F6,
Class T3-F7, Class T3-F8, and Class T3-F9 Interests to achieve the Fixed Rate
Specified Overcollateralization Amount for such Distribution Date exceed an
amount equal to the difference between (a) the product of (i) the aggregate of
the principal balances of the Fixed Rate Mortgage Loans and (ii) the related
Fixed Rate Net Rate and (b) the amount of interest accruing on the Class
T3-F1IO, Class T3-F2IO, and Class T3-F3IO Interests for such Distribution Date
and (2) in no event shall the interest that accrues with respect to the Class
T3-F1O, Class T3-F2IO, and Class T3-F3IO Interests that is distributed as
principal on the Class T3-V1, Class T3-V2, Class T3-V3, Class T3-V4 and Class
T3-V5 Interests to achieve the Adjustable Rate Specified Overcollateralization
Amount for such Distribution Date exceed an amount equal to the difference
between (a) the product of (i) the aggregate of the principal balances of the
Adjustable Rate Mortgage Loans and (ii) the related Adjustable Net Rate and
(b) the amount of interest accruing on the Class T3-V1IO, Class T3-V2IO and
Class T3-V3IO Interests for such Distribution Date.
(k) On each Distribution Date, Realized Losses with respect to the Fixed
Rate Mortgage Loans shall be allocated as follows:
first, to the Class T3-F1 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F1 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
second, to the Class T3-F2 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F2 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
third, to the Class T3-F3 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F3 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
fourth, to the Class T3-F4 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F4 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
fifth, to the Class T3-F5 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F5 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
sixth, to the Class T3-F6 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F6 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
seventh, to the Class T3-F7 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F7 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
eighth, to the Class T3-F8 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F8 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
ninth, to the Class T3-F9 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F9 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
tenth, proportionately to the accrued interest balances of the
Class T3-F1IO, Class T3-F2IO, Class T3-F3IO Interests; and
twelve, in a manner that will cause any amount due on each REMIC 3
Regular Interest to equal the amount due on the corresponding Class
of REMIC 4 Regular Interests.
(l) On each Distribution Date, Realized Losses with respect to the
Adjustable Rate Mortgage Loans shall be allocated as follows:
first, to the Class T3-V1 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-V1 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
second, to the Class T3-V2 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-V2 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
third, to the Class T3-V3 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-V3 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
fourth, to the Class T3-V4 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-V4 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
fifth, to the Class T3-V5 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-V5 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
sixth, proportionately to the accrued interest balances of the Class
T3-V1IO, Class T3-V2IO, Class T3-3IO Interests; and
seventh, in a manner that will cause any amount due on each REMIC 3
Regular Interests to equal the amount due on the corresponding Class
of REMIC 4 Regular Interests.
(m) On each Distribution Date, the Class T4-F1, Class T4-F2, Class T4-F3,
Class T4-F4, Class T4-F5, Class T4-F6, Class T4-F7, Class T4-F8, Class T4-F9,
Class T4-V1, Class T4-V2, Class T4-V3, Class T4-V4 and Class T4-V5 Interests
shall be entitled to receive distributions of principal and interest equal to
the principal and interest distributions required to be paid with respect to
the corresponding Class of Certificates (determined as if the distributions on
the Certificates were computed without regard to the amounts distributed under
Section 4.04(g) hereof from the Carryover Reserve Fund). On each Distribution
Date, interest that accrues with respect to the Class T4-F1IO, Class T4-F2IO,
Class T4-F3IO, Class T4-F4IO, Class T4-F5IO, Class T4-F6IO, Class T4-F7IO,
Class T4-F8IO, and Class T4-F9IO, during the related Accrual Period shall be
distributed as Fixed Rate Excess Cashflow and Fixed Rate Remainder Excess
Cashflow in accordance with Section 4.04 (f), (g) and (h), and interest that
accrues with respect to the Class T4-V1IO, Class T4-V2IO, Class T4-V3IO, Class
T4-V4IO and Class T4-V5IO Interests during the related Accrual Period shall be
distributed as Adjustable Rate Excess Cashflow and as Adjustable Rate
Remainder Excess Cashflow in accordance with Section 4.04(f), (g) and (h)
hereof. Interest that accrues on the Class T4-F1IO, Class T4-F2IO, Class
T4-F3IO, Class T4-F4IO, Class T4-F5IO, Class T4-F6IO, Class T4-F7IO, Class
T4-F8IO, Class T4-F9IO, Class T4-V1IO, Class T4-V2IO, Class T4-V3IO, Class
T4-V4IO, Class T4-V5IO Interests shall not itself bear interest.
(n) On each Distribution Date, the Applied Realized Loss Amount for the
Fixed Rate Certificates and the Applied Realized Loss Amount for the
Adjustable Rate Certificates shall be allocated among the REMIC 4 Regular
Interests in accordance with the allocations provided in Section 4.04 (k) and
(l) hereof for the corresponding classes of Certificates.
Section 4.07. Extra Master Servicing Fee.
(a) REMIC 4 shall pay to the Master Servicer the Extra Master Servicing
Fee as an additional fee for services rendered as Master Servicer. Such fee
shall be due and payable on any Distribution Date only to the extent their are
amounts remaining after all amounts required to be distributed with respect to
the REMIC 4 Regular Interests have been made for that Distribution Date.
Furthermore, if for any Distribution Date an amount would be required to be
paid from the Carryover Reserve Fund pursuant to Section 4.04(j), the Master
Servicer shall make an advance to the Carryover Reserve Fund in the amount of
any Extra Master Servicing Fee due for that Distribution Date.
(b) With respect to each Distribution Date, the Extra Master Servicing
Fee shall equal the sum of the following:
(i) an amount equal to the product of the rate of interest
accrual on the Class T4-F1 Interest for such Distribution Date and
the excess of the Class T3-F1 Interest principal balance over the
Class T4-F1 Interest principal balance (before giving effect to any
reductions of such balances on such Distribution Date);
(ii)an amount equal to the product of the rate of interest
accrual on the Class T4-F2 Interest for such Distribution Date and
the excess of the Class T3-F2 Interest principal balance over the
Class T4-F2 Interest principal balance (before giving effect to any
reductions of such balances on such Distribution Date);
(iii) an amount equal to the product of the rate of
interest accrual on the Class T4-F3 Interest for such Distribution
Date and the excess of the Class T3-F3 Interest principal balance
over the Class T4-F3 Interest principal balance (before giving effect
to any reductions of such balances on such Distribution Date);
(iv)an amount equal to the product of the rate of interest
accrual on the Class T4-F4 Interest for such Distribution Date and
the excess of the Class T3-F4 Interest principal balance over the
Class T4-F4 Interest principal balance (before giving effect to any
reductions of such balances on such Distribution Date);
(v) an amount equal to the product of the rate of interest
accrual on the Class T4-F5 Interest for such Distribution Date and
the excess of the Class T3-F5 Interest principal balance over the
Class T4-F5 Interest principal balance (before giving effect to any
reductions of such balances on such Distribution Date);
(vi)an amount equal to the product of the rate of interest
accrual on the Class T4-F6 Interest for such Distribution Date and
the excess of the Class T3-F6 Interest principal balance over the
Class T4-F6 Interest principal balance (before giving effect to any
reductions of such balances on such Distribution Date);
(vii) an amount equal to the product of the rate of
interest accrual on the Class T4-F7 Interest for such Distribution
Date and the excess of the Class T3-F7 Interest principal balance
over the Class T4-F7 Interest principal balance (before giving effect
to any reductions of such balances on such Distribution Date);
(viii) an amount equal to the product of the rate of
interest accrual on the Class T4-F8 Interest for such Distribution
Date and the excess of the Class T3-F8 Interest principal balance
over the Class T4-F8 Interest principal balance (before giving effect
to any reductions of such balances on such Distribution Date);
(ix)an amount equal to the product of the rate of interest
accrual on the Class T4-V1 Interest for such Distribution Date and
the excess of the Class T3-V1 Interest principal balance over the
Class T4-V1 Interest principal balance (before giving effect to any
reductions of such balances on such Distribution Date);
(x) an amount equal to the product of the rate of interest
accrual on the Class T4-V2 Interest for such Distribution Date and
the excess of the Class T3-V2 Interest principal balance over the
Class T4-V2 Interest principal balance (before giving effect to any
reductions of such balances on such Distribution Date);
(xi)an amount equal to the product of the rate of interest
accrual on the Class T4-V3 Interest for such Distribution Date and
the excess of the Class T3-V3 Interest principal balance over the
Class T4-V3 Interest principal balance (before giving effect to any
reductions of such balances on such Distribution Date); and
(xii) an amount equal to the product of the rate of
interest accrual on the Class TV-V4 Interest for such Distribution
Date and the excess of the Class T3-V4 Interest principal balance
over the Class T4-V4 Interest principal balance (before giving effect
to any reductions of such balances on such Distribution Date).
All amounts received by the Servicer in respect of the Extra Master Servicing
Fee will be deposited into the Carryover Reserve Fund.
Section 4.08. Fixed Rate Carryover Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the Fixed Rate Certificates,
the Fixed Rate Carryover Reserve Fund. The Fixed Rate Carryover Reserve Fund
shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including without limitation, other moneys held by the Trustee pursuant to
this Agreement.
(b) On each Distribution Date on which the Net Excess Spread is less than
0.25%, the Trustee shall transfer from the Distribution Account to the Fixed
Rate Carryover Reserve Fund pursuant to Sections 4.04(h)(ii) the Required
Fixed Rate Carryover Reserve Fund Deposit.
(c) The Trustee shall make withdrawals from the Fixed Rate Carryover
Reserve Fund to make distributions pursuant to Section 4.04(h) hereof, and
shall withdraw from the Fixed Rate Carryover Reserve Fund on any Distribution
Date on which the Net Excess Spread is equal to or greater than 0.25% an
amount equal to the amount of funds on deposit in the Fixed Rate Carryover
Reserve Fund in excess of $5,000 and distribute such excess to the Class BF-IO
Certificateholders pro rata in accordance with their respective Percentage
Interests. Funds withdrawn from the Fixed Rate Carryover Reserve Fund may not
be applied pursuant to any other subsection of Section 4.04 other than as
expressly provided for in this Section 4.08(c).
(d) Funds in the Fixed Rate Carryover Reserve Fund may be invested in
Permitted Investments. Any earnings on such amounts shall be payable to the
Class BF-IO Certificates. The Class BF-IO Certificates shall evidence
ownership of the Fixed Rate Carryover Reserve Fund for federal tax purposes
and shall direct the Trustee in writing as to the investment of amounts
therein.
(e) Upon termination of the Trust Fund, any amounts remaining in the
Fixed Rate Carryover Reserve Fund shall be distributed to the Holders of the
Class BF-IO Certificates in the same manner as if distributed pursuant to
Section 4.04(h) hereof.
Section 4.09. Adjustable Rate Carryover Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the Adjustable Rate
Certificates and the Class AF-1, the Adjustable Rate Carryover Reserve Fund.
The Adjustable Rate Carryover Reserve Fund shall be an Eligible Account, and
funds on deposit therein shall be held separate and apart from, and shall not
be commingled with, any other moneys, including without limitation, other
moneys held by the Trustee pursuant to this Agreement.
(b) On each Distribution Date on which the Net Excess Spread is less than
0.25%, the Trustee shall transfer from the Distribution Account to the
Adjustable Rate Carryover Reserve Fund pursuant to Sections 4.04(i)(ii) the
Required Adjustable Rate Carryover Reserve Fund Deposit.
(c) The Trustee shall make withdrawals from the Adjustable Rate Carryover
Reserve Fund to make distributions pursuant to Section 4.04(i) hereof, and
shall withdraw from the Adjustable Rate Carryover Reserve Fund on any
Distribution Date on which the Net Excess Spread is equal to or greater than
0.25% an amount equal to the amount of funds on deposit in the Adjustable Rate
Carryover Reserve Fund in excess of $5,000 and distribute such excess to the
Class BV-IO Certificateholders pro rata in accordance with their respective
Percentage Interests. Funds withdrawn from the Adjustable Rate Carryover
Reserve Fund may not be applied pursuant to any other subsection of Section
4.04 other than as expressly provided for in this Section 4.08(c).
(d) Funds in the Adjustable Rate Carryover Reserve Fund may be invested
in Permitted Investments. Any earnings on such amounts shall be payable to the
Class BV-IO Certificates. The Class BV-IO Certificates shall evidence
ownership of the Adjustable Rate Carryover Reserve Fund for federal tax
purposes and shall direct the Trustee in writing as to the investment of
amounts therein.
(e) Upon termination of the Trust Fund, any amounts remaining in the
Adjustable Rate Carryover Reserve Fund shall be distributed to the Holders of
the Class BV-IO Certificates in the same manner as if distributed pursuant to
Section 4.04(i) hereof.
ARTICLE V.
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the
minimum dollar denominations, integral dollar multiples in excess thereof
(except that one Certificate in of each Class may be issued in a different
amount which must be in excess of the applicable minimum dollar denomination)
and aggregate dollar denominations as set forth in the following table:
<TABLE>
<CAPTION>
Integral Original
Multiples Certificate
Minimum in Excess of Principal
Class Denomination Minimum Balance
- ------------------ ---------------------- -------------------------------- --------------------------------
<S> <C> <C> <C> <C>
AF-1 $25,000 $1,000 $102,600,000
AF-2 $25,000 $1,000 $23,700,000
AF-3 $25,000 $1,000 $61,800,000
AF-4 $25,000 $1,000 $31,000,000
AF-5 $25,000 $1,000 $33,620,000
AF-6 $25,000 $1,000 $31,200,000
MF-1 $25,000 $1,000 $9,360,000
MF-2 $25,000 $1,000 $9,360,000
BF $25,000 $1,000 $9,360,000
BF-IO N/A N/A N/A
AV-1 $25,000 $1,000 $161,460,000
AV-2 $25,000 $1,000 $600,000,000
MV-1 $25,000 $1,000 $57,720,000
MV-2 $25,000 $1,000 $33,300,000
BV $25,000 $1,000 $35,520,000
BV-IO N/A N/A N/A
R-1 0.001% N/A N/A
R-2 99.999% N/A N/A
</TABLE>
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized 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 Trustee, 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 authentication
and delivery. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form set
forth as attached hereto executed by the Trustee by manual signature, and such
certificate of 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. On the Closing Date, the Trustee shall
authenticate the Certificates to be issued at the written direction of the
Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 5.02. Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 5.09 hereof, a Certificate Register for the
Trust Fund in which, subject to the provisions of subsections (b) and (c)
below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of Transfers and
exchanges of Certificates as herein provided. Upon surrender for registration
of Transfer of any Certificate, the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by a
written instrument of Transfer in form satisfactory to the Trustee duly
executed by the holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of Transfer or exchange
shall be canceled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No Transfer of a Class B-IO or Class R Certificate shall be made
unless such Transfer is made pursuant to an effective registration statement
under the Securities Act and any applicable state securities laws or is exempt
from the registration requirements under the Securities Act and such state
securities laws. In the event that a Transfer is to be made in reliance upon
an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder
desiring to effect such Transfer and such Certificateholder's prospective
transferee shall each certify to the Trustee in writing the facts surrounding
the Transfer in substantially the forms set forth in Exhibit J (the
"Transferor Certificate") and (x) deliver a letter in substantially the form
of either Exhibit K (the "Investment Letter") or Exhibit L (the "Rule 144A
Letter") or (y) there shall be delivered to the Trustee an opinion of counsel
that such Transfer may be made pursuant to an exemption from the Securities
Act, which opinion of counsel shall not be an expense of the Depositor, the
Seller, the Master Servicer or the Trustee. The Depositor shall provide to any
Holder of a Class B-IO or Class R Certificate and any prospective transferee
designated by any such Holder, information regarding the related Certificates
and the Mortgage Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for Transfer
of any such Certificate without registration thereof under the Securities Act
pursuant to the registration exemption provided by Rule 144A. The Trustee and
the Master Servicer shall cooperate with the Depositor in providing the Rule
144A information referenced in the preceding sentence, including providing to
the Depositor such information regarding the Certificates, the Mortgage Loans
and other matters regarding the Trust Fund as the Depositor shall reasonably
request to meet its obligation under the preceding sentence. Each Holder of a
Class B-IO or Class R Certificate desiring to effect such Transfer shall, and
does hereby agree to, indemnify the Trustee, the Depositor, the Seller and the
Master Servicer 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 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, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
or a Person acting on behalf of any such plan or using the assets of any such
plan, (ii) except in the case of the Class B-IO Certificates and Class R
Certificates, if such purchaser is an insurance company, a representation that
the purchaser is an insurance company that 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) in the case of any
such ERISA Restricted Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan subject to Section 4975 of
the Code (or comparable provisions of any subsequent enactments), or a trustee
of any such plan or any other person acting on behalf of any such plan, an
opinion of counsel satisfactory to the Trustee and the Master Servicer to the
effect that the purchase or holding of such ERISA Restricted Certificate 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 and the Code and
will not subject the Trustee or the Master Servicer to any obligation in
addition to those expressly undertaken in this Agreement, which opinion of
counsel shall not be an expense of the Trustee or the Master Servicer. For
purposes of clause (i) of the preceding sentence, such representation shall be
deemed to have been made to the Trustee by the transferee's acceptance of an
ERISA Restricted Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in any such Class of ERISA Restricted Certificates) unless
the Trustee shall have received from the transferee an alternative
representation acceptable in form and substance to the Master Servicer and the
Depositor. Notwithstanding anything else to the contrary herein, any purported
transfer of an ERISA Restricted Certificate to or on behalf of an employee
benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975
of the Code without the delivery to the Trustee and the Master Servicer of an
opinion of counsel satisfactory to the Trustee and the Master Servicer as
described above shall be void and of no effect; provided that the restriction
set forth in this sentence shall not be applicable if there has been delivered
to the Trustee and the Master Servicer an opinion of counsel meeting the
requirements of clause (iii) of the first sentence of this paragraph. The
Trustee shall be under no liability to any Person for any registration of
transfer of any ERISA Restricted Certificate that is in fact not permitted by
this Section 5.02(b) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as the transfer was registered by the
Trustee in accordance with the foregoing requirements. The Trustee shall be
entitled, but not obligated, to recover from any Holder of any ERISA
Restricted Certificate that was in fact an employee benefit plan subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or a Person
acting on behalf of any such plan at the time it became a Holder or, at such
subsequent time as it became such a plan or Person acting on behalf of such a
plan, all payments made on such ERISA Restricted Certificate at and after
either such time. Any such payments so recovered by the Trustee shall be paid
and delivered by the Trustee to the last preceding Holder of such Certificate
that is not such a plan or Person acting on behalf of a plan.
(c) Each Person who has or who acquires any Ownership Interest in a Class
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
the rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Class R 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 a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Class R Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as
Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person attempts
to Transfer its Ownership Interest in a Class R Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer
of a Class R Certificate and (C) not to Transfer its Ownership
Interest in a Class R Certificate or to cause the Transfer of an
Ownership Interest in a Class R Certificate to any other Person if it
has actual knowledge that such Person is not a Permitted Transferee.
(iv)Any attempted or purported Transfer of any Ownership
Interest in a Class R Certificate in violation of the provisions of
this Section 5.02(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported transferee
shall become a Holder of a Class R Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Class R
Certificate. The Trustee shall be under no liability to any Person
for any registration of Transfer of a Class R Certificate that is in
fact not permitted by Section 5.02(b) and this Section 5.02(c) 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
after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter.
The Trustee shall be entitled but not obligated to recover from any
Holder of a Class R Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time
as it became other than a Permitted Transferee, all payments made on
such Class R Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered by
the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Master Servicer shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section
860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Class R Certificate to any Holder who is not a
Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Class R Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trustee, the Seller or the
Master Servicer to the effect that the elimination of such restrictions will
not cause the Trust Fund to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the
Trust Fund, a Certificateholder or another Person. Each Person holding or
acquiring any ownership Interest in a Class R Certificate hereby consents to
any amendment of this Agreement that, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Class R Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Class R
Certificate that is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 shall not be an expense of the Trust
Fund, the Trustee, the Depositor, the Seller or the Master Servicer.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and of the ownership thereof and (b) there is
delivered to the Master Servicer and the Trustee 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 that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like Class, tenor and Percentage Interest. In connection
with the issuance of any new Certificate under this Section 5.03, the Trustee
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) connected therewith.
Any replacement Certificate issued pursuant to this Section 5.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time. All Certificates surrendered to the
Trustee under the terms of this Section 5.03 shall be canceled and destroyed
by the Trustee in accordance with its standard procedures without liability on
its part.
Section 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master Servicer or
the Trustee may treat the person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and neither
the Master Servicer, the Trustee nor any agent of the Master Servicer or the
Trustee shall be affected by any notice to the contrary.
Section 5.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor or Master Servicer shall request such information in writing from
the Trustee, then the Trustee shall, within ten Business Days after the
receipt of such request, provide the Depositor, the Master Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of the Trust Fund held by the Trustee, if any. The
Depositor and every Certificateholder, by receiving and holding a Certificate,
agree that the Trustee shall not be held accountable by reason of the
disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06. Book-Entry Certificates.
The Regular Certificates (other than the Class B-IO Certificates), upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to the
Depository by or on behalf of the Depositor. Such Certificates shall initially
be registered on the Certificate Register in the name of the Depository or its
nominee, and no Certificate Owner of such Certificates will receive a
definitive certificate representing such Certificate Owner's interest in such
Certificates, except as provided in Section 5.08. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
the Certificate Owners of such Certificates pursuant to Section 5.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor, the Master Servicer and the Trustee may deal with the
Depository and the Depository Participants for all purposes (including the
making of distributions) as the authorized representative of the respective
Certificate Owners of such Certificates;
(c) registration of the Book-Entry Certificates may not be transferred by
the Trustee except to another Depository;
(d) the rights of the respective Certificate Owners of such Certificates
shall be exercised only through the Depository and the Depository Participants
and shall be limited to those established by law and agreements between the
Owners of such Certificates and the Depository and/or the Depository
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository
will make book-entry transfers among the Depository Participants and receive
and transmit distributions of principal and interest on the related
Certificates to such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants; and
(g) to the extent that the provisions of this Section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
any Class of Certificates, such direction or consent may be given by
Certificate Owners (acting through the Depository and the Depository
Participants) owning Book-Entry Certificates evidencing the requisite
percentage of principal amount of such Class of Certificates.
Section 5.07. Notices to Depository.
Whenever any notice or other communication is required to be given to
Certificateholders of the Class with respect to which Book-Entry Certificates
have been issued, unless and until Definitive Certificates shall have been
issued to the related Certificate Owners, the Trustee shall give all such
notices and communications to the Depository.
Section 5.08. Definitive Certificates.
If, after Book-Entry Certificates have been issued with respect to any
Certificates, (a) the Depositor advises the Trustee that the Depository is no
longer willing or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Certificates and the Trustee or the
Depositor is unable to locate a qualified successor, (b) the Depositor, at its
sole option, advises the Trustee that it elects to terminate the book-entry
system with respect to such Certificates through the Depository or (c) after
the occurrence and continuation of an Event of Default, Certificate Owners of
such Book-Entry Certificates having not less than 51% of the Voting Rights
evidenced by any Class of Book-Entry Certificates advise the Trustee and the
Depository in writing through the Depository Participants that the
continuation of a book-entry system with respect to Certificates of such Class
through the Depository (or its successor) is no longer in the best interests
of the Certificate Owners of such Class, then the Trustee shall notify all
Certificate Owners of such Certificates, through the Depository, of the
occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners of such Class requesting the same. The
Depositor shall provide the Trustee with an adequate inventory of certificates
to facilitate the issuance and transfer of Definitive Certificates. Upon
surrender to the Trustee of any such Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall authenticate and deliver such Definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in
delivery of such instructions and each may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of such
Definitive Certificates, all references herein to obligations imposed upon or
to be performed by the Depository shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable with respect to such
Definitive Certificates and the Trustee shall recognize the Holders of such
Definitive Certificates as Certificateholders hereunder.
Section 5.09. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates
may be surrendered for registration of transfer or exchange. The Trustee
initially designates its offices at 101 Barclay Street, Floor 12E, New York,
New York 10286, Attention: Corporate Trust MBS Administration, as offices for
such purposes. The Trustee will give prompt written notice to the
Certificateholders of any change in such location of any such office or
agency.
ARTICLE VI.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER
Section 6.01. Respective Liabilities of the Depositor, the Master
Servicer and the Seller.
The Depositor, the Master Servicer and the Seller shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 6.02. Merger or Consolidation of the Depositor, the Master
Servicer or the Seller.
The Depositor, the Master Servicer and the Seller will each keep in full
effect its existence, rights and franchises as a corporation under the laws of
the United States or under the laws of one of the States thereof and will each
obtain and preserve its qualification to do business as a foreign corporation
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor, the Master Servicer or the Seller
may be merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor, the Master Servicer or the Seller shall
be a party, or any person succeeding to the business of the Depositor, the
Master Servicer or the Seller, shall be the successor of the Depositor, the
Master Servicer or the Seller, 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; provided that
the successor or surviving Person to the Master Servicer shall be qualified to
sell mortgage loans to, and to service mortgage loans on behalf of, FNMA or
FHLMC.
Section 6.03. Limitation on Liability of the Depositor, the Seller, the
Master Servicer and others.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided that this provision shall not protect the Depositor, the
Seller, the Master Servicer or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor, the
Seller, the Master Servicer or any such Person from any liability that would
otherwise be imposed by reasons of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, the Seller, the Master
Servicer and any director, officer, employee or agent of the Depositor, the
Seller or the Master Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor, the Seller, the Master Servicer and
any director, officer, employee or agent of the Depositor, the Seller or the
Master Servicer shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense incurred in connection with any audit,
controversy or judicial proceeding relating to a governmental taxing authority
or any legal action relating to this Agreement or the Certificates, other than
any loss, liability or expense related to any specific Mortgage Loan or
Mortgage Loans (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) and any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. None of the Depositor, the
Seller or the Master Servicer shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and that in its opinion may involve it in any expense or
liability; provided that any of the Depositor, the Seller or the Master
Servicer may, in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties
of the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be, expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Seller and the Master Servicer shall be
entitled to be reimbursed therefor out of the Certificate Account as provided
by Section 3.08 hereof.
Section 6.04. Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon determination that its duties hereunder are
no longer permissible under applicable law. Any such determination permitting
the resignation of the Master Servicer shall be evidenced by an Opinion of
Counsel to such effect delivered to the Trustee. No such resignation shall
become effective until the Trustee or a successor servicer to such appointment
shall have assumed the Master Servicer's responsibilities, duties, liabilities
and obligations hereunder.
Section 6.05. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall, for so long as it acts as servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of insurance
covering errors and omissions in the performance of its obligations as
servicer hereunder, and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies and bond shall, together,
comply with the requirements from time to time of FNMA or FHLMC for persons
performing servicing for mortgage loans purchased by FNMA or FHLMC. In the
event that any such policy or bond ceases to be in effect, the Master Servicer
shall use its reasonable best efforts to obtain a comparable replacement
policy or bond from an insurer or issuer, meeting the requirements set forth
above as of the date of such replacement.
ARTICLE VII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 7.01. Events of Default
"Event of Default," wherever used herein, means any one of the following
events:
(i) any failure by the Master Servicer to deposit in the
Certificate Account or the Distribution Account or remit to the
Trustee any payment (excluding a payment required to be made under
Section 4.01 hereof) required to be made under the terms of this
Agreement, which failure shall continue unremedied for five calendar
days and, with respect to a payment required to be made under Section
4.01 hereof, for one calendar day, after the date on which written
notice of such failure shall have been given to the Master Servicer
by the Trustee or the Depositor, or to the Trustee and the Master
Servicer by the Holders of Certificates evidencing not less than 25%
of the Voting Rights evidenced by the Certificates; or
(ii)any failure by the Master Servicer or, so long as the
Master Servicer is also the Seller, the Seller to observe or perform
in any material respect any other of the covenants or agreements on
the part of the Master Servicer contained in this Agreement or any
representation or warranty shall prove to be untrue, which failure or
breach shall continue unremedied for a period of 60 days after the
date on which written notice of such failure shall have been given to
the Master Servicer by the Trustee or the Depositor, or to the
Trustee by the Holders of Certificates evidencing not less than 25%
of the Voting Rights evidenced by the Certificates; provided that the
sixty-day cure period shall not apply to the initial delivery of the
Mortgage File for Delay Delivery Mortgage Loans nor the failure to
repurchase or substitute in lieu thereof; or
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such
decree or order shall have remained in force undischarged or unstayed
for a period of 60 consecutive days; or
(iv)the Master Servicer shall consent to the appointment of
a receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to
take advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations.
If an Event of Default shall occur, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the
Trustee shall, but only at the direction of the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates, by notice in writing to the Master Servicer (with a copy to each
Rating Agency), terminate all of the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, other than its rights as a Certificateholder hereunder. On
or after the receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer hereunder, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee.
The Trustee shall thereupon make any Advance described in Section 4.01 hereof
subject to Section 3.04 hereof. 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 or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such
termination shall affect any obligation of the Master Servicer to pay amounts
owed pursuant to Article VIII. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be
credited to the Certificate Account, or thereafter be received with respect to
the Mortgage Loans. The Trustee shall promptly notify the Rating Agencies of
the occurrence of an Event of Default.
Notwithstanding any termination of the activities of a Master Servicer
hereunder, such Master Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan that was due prior to the
notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to
which such Master Servicer would have been entitled pursuant to Sections
3.08(a)(i) through (viii), and any other amounts payable to such Master
Servicer hereunder the entitlement to which arose prior to the termination of
its activities hereunder.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 hereof, the Trustee shall, to the extent
provided in Section 3.04, be the successor 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 and applicable law including the obligation to make
advances pursuant to Section 4.01. As compensation therefor, the Trustee shall
be entitled to all fees, costs and expenses relating to the Mortgage Loans
that the Master Servicer would have been entitled to if the Master Servicer
had continued to act hereunder. Notwithstanding the foregoing, if the Trustee
has become the successor to the Master Servicer in accordance with Section
7.01 hereof, the Trustee may, if it shall be unwilling to so act, or shall, if
it is prohibited by applicable law from making Advances pursuant to Section
4.01 hereof or if it is otherwise unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which does not adversely affect the
then current rating of the Certificates by each Rating Agency 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. Any
successor Master Servicer shall be an institution that is a FNMA and FHLMC
approved seller/servicer in good standing, that has a net worth of at least
$15,000,000, and that is willing to service the Mortgage Loans and executes
and delivers to the Depositor and the Trustee an agreement accepting such
delegation and assignment, that contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer (other than liabilities of the Master Servicer under Section
6.03 hereof incurred prior to termination of the Master Servicer under Section
7.01), with like effect as if originally named as a party to this Agreement;
and provided further that each Rating Agency acknowledges that its rating of
the Certificates in effect immediately prior to such assignment and delegation
will not be qualified or reduced as a result of such assignment and
delegation. No appointment of a successor to the Master Servicer hereunder
shall be effective until the Trustee shall have consented thereto, and written
notice of such proposed appointment shall have been provided by the Trustee to
each Certificateholder. The Trustee shall not resign as servicer until a
successor servicer has been appointed and has accepted such appointment.
Pending appointment of a successor to the Master Servicer hereunder, the
Trustee, unless the Trustee is prohibited by law from so acting, shall,
subject to Section 3.04 hereof, act in such capacity as hereinabove provided.
In connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided that no such
compensation shall be in excess of that permitted the Master Servicer
hereunder. The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
Neither the Trustee nor any other successor servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making,
any distribution hereunder or any portion thereof or any failure to perform,
or any delay in performing, any duties or responsibilities hereunder, in
either case caused by the failure of the Master Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
Any successor to the Master Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its
service as servicer maintain in force the policy or policies that the Master
Servicer is required to maintain pursuant to Section 6.05.
In connection with the termination or resignation of the Master Servicer
hereunder, either (i) the successor Master Servicer, including the Trustee if
the Trustee is acting as successor Master Servicer, shall represent and
warrant that it is a member of MERS in good standing and shall agree to comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the Mortgage Loans that are registered with MERS, or
(ii) the predecessor Master Servicer shall cooperate with the successor Master
Servicer in causing MERS to execute and deliver an assignment of Mortgage in
recordable form to transfer the Mortgage from MERS to the Trustee and to
execute and deliver such other notices, documents and other instruments as may
be necessary or desirable to effect a transfer of such Mortgage Loan or
servicing of such Mortgage Loan on the MERS(R) System to the successor Master
Servicer. The predecessor Master Servicer shall file or cause to be filed any
such assignment in the appropriate recording office. The successor Master
Servicer shall cause such assignment to be delivered to the Trustee or the
Custodian promptly upon receipt of the original with evidence of recording
thereon or a copy certified by the public recording office in which such
assignment was recorded.
Section 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
ARTICLE VIII.
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that 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. If any such instrument is found
not to conform to the requirements of this Agreement in a material manner, the
Trustee shall take 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 grossly negligent action, its own gross negligent
failure to act or its own misconduct, its grossly negligent failure to perform
its obligations in compliance with this Agreement, or any liability that would
be imposed by reason of its willful misfeasance or bad faith; provided that:
(i) prior to the occurrence of an Event of Default, and
after the curing of all such Events of Default that 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, individually or as Trustee, 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 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 that it reasonably believed in good
faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii)the Trustee shall not be liable, individually or as
Trustee, for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless the Trustee
was grossly negligent or acted in bad faith or with willful
misfeasance; and
(iii) the Trustee shall not be liable, individually or
as Trustee, with respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with the direction of
Holders of each Class of Certificates evidencing not less than 25% of
the Voting Rights of such Class relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee
under this Agreement.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed
by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Trustee may consult with counsel and any 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 Opinion of Counsel;
(iii) the Trustee shall not be liable, individually or
as Trustee, 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;
(iv) prior to the occurrence of an Event of Default hereunder
and after the curing of all Events of Default that 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 document, unless requested in
writing so to do by Holders of each Class of Certificates evidencing
not less than 25% of the Voting Rights of such Class;
(v) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, accountants or attorneys;
(vi) the Trustee shall not be required to expend its own
funds or otherwise incur any financial liability in the performance
of any of its duties hereunder if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(vii) the Trustee shall not be liable, individually or
as Trustee, for any loss on any investment of funds pursuant to this
Agreement (other than as issuer of the investment security);
(viii) the Trustee shall not be deemed to have knowledge of
an Event of Default until a Responsible Officer of the Trustee shall
have received written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder 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 against the costs, expenses and liabilities
that may be incurred therein or thereby.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by the Trustee
without the possession of any of the Certificates, or the production thereof
at the trial or other proceeding relating thereto, and any such suit, action
or proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of the Certificates, subject to the provisions of
this Agreement.
Section 8.03. Trustee Not Liable for Mortgage Loans.
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Agreement or of any Mortgage Loan or
related document or of MERS or the MERS(R) System other than with respect to
the Trustee's execution and authentication of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Master Servicer of any funds paid to the Depositor or the Master Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the
Certificate Account by the Depositor or the 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 with the same rights as it would have if it were
not the Trustee.
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses.
The Master Servicer covenants and agrees (i) to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation as shall
be agreed in writing by the Master Servicer and the Trustee (which shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust) for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee and (ii) to pay or reimburse the Trustee,
upon its request, for all reasonable expenses, disbursements and advances
incurred or made by the Trustee on behalf of the Trust Fund in accordance with
any of the provisions of this Agreement (including, without limitation: (A)
the reasonable compensation and the expenses and disbursements of its counsel,
but only for representation of the Trustee acting in its capacity as Trustee
hereunder and (B) to the extent that the Trustee must engage persons not
regularly in its employ to perform acts or services on behalf of the Trust
Fund, which acts or services are not in the ordinary course of the duties of a
trustee, paying agent or certificate registrar, in the absence of a breach or
default by any party hereto, the reasonable compensation, expenses and
disbursements of such persons, except any such expense, disbursement or
advance as may arise from its negligence, bad faith or willful misconduct).
The Trustee and any director, officer, employee or agent of the Trustee shall
be indemnified by the Master Servicer and held harmless against any loss,
liability or expense (i) incurred in connection with any legal action relating
to this Agreement or the Certificates, or in connection with the performance
of any of the Trustee's duties hereunder, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Trustee's duties hereunder or by reason of
reckless disregard of the Trustee's obligations and duties hereunder and (ii)
resulting from any error in any tax or information return prepared by the
Master Servicer. Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee hereunder.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall, at all times, be a corporation or
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating that would not cause any of the Rating Agencies to reduce their
respective ratings of any Class of Certificates below the ratings issued on
the Closing Date (or having provided such security from time to time as is
sufficient to avoid such reduction). If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with 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. The corporation
or national banking association serving as Trustee may have normal banking and
trust relationships with the Depositor, the Seller and the Master Servicer and
their respective affiliates; provided that such corporation cannot be an
affiliate of the Master Servicer other than the Trustee in its role as
successor to the Master Servicer.
Section 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (1) giving written notice of resignation to the Depositor
and the Master Servicer and by mailing notice of resignation by first class
mail, postage prepaid, to the Certificateholders at their addresses appearing
on the Certificate Register and each Rating Agency, not less than 60 days
before the date specified in such notice when, subject to Section 8.08, such
resignation is to take effect, and (2) acceptance of appointment by a
successor trustee in accordance with Section 8.08 and meeting the
qualifications set forth in Section 8.06. If no successor trustee shall have
been so appointed and have accepted appointment within 30 days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time (i) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof and shall fail to resign after
written request thereto by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(iii)(A) a tax is imposed with respect to the Trust Fund by any state in which
the Trustee or the Trust Fund is located, (B) the imposition of such tax would
be avoided by the appointment of a different trustee and (C) the Trustee fails
to indemnify the Trust Fund against such tax, then the Depositor or the Master
Servicer may remove the Trustee and appoint a successor trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the Trustee, one copy of which shall be delivered to the Master Servicer and
one copy of which shall be delivered to the successor trustee.
The Holders evidencing at least 51% of the Voting Rights of each Class of
Certificates may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered by the successor Trustee to the Master Servicer
one complete set to the Trustee so removed and one complete set to the
successor so appointed. Notice of any removal of the Trustee shall be given to
each Rating Agency by the Successor Trustee.
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 become
effective upon 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 and to its predecessor
trustee and the Master Servicer 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 the like effect as
if originally named as trustee herein.
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 its appointment shall
not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
Section 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to substantially all of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be eligible under the provisions of Section 8.06 hereof
without the execution or filing of any paper or 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 Fund or property securing any Mortgage Note may at the time
be located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons 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 any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, 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. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in the case an Event of Default
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 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
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, except for the obligation of the Trustee
under this Agreement to advance funds on behalf of the Master
Servicer, 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 Fund 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 Trustee may at any time accept the
resignation of 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 Master Servicer and the Depositor.
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 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. Tax Matters.
It is intended that the Trust Fund shall constitute, and that the affairs
of the Trust Fund shall be conducted so that REMIC BTF, REMIC BTV, REMIC 1,
REMIC 2, REMIC 3, and REMIC 4 qualify as, a "real estate mortgage investment
conduit" as defined in and in accordance with the REMIC Provisions. In
furtherance of such intention, the Trustee covenants and agrees that it shall
act as agent (and the Trustee is hereby appointed to act as agent) on behalf
of the Trust Fund and that in such capacity it shall: (a) prepare and file, or
cause to be prepared and filed, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit Income Tax Returns (Form 1066 or any successor
form adopted by the Internal Revenue Service) and prepare and file or cause to
be prepared and filed with the Internal Revenue Service and applicable state
or local tax authorities income tax or information returns for each taxable
year with respect to each REMIC created hereunder containing such information
and at the times and in the manner as may be required by the Code or state or
local tax laws, regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby; (b) within thirty days of the
Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code for the
Trust Fund; (c) make or cause to be made elections, on behalf of each REMIC
created hereunder to be treated as a REMIC on the federal tax return of each
such REMIC for its first taxable year (and, if necessary, under applicable
state law); (d) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and to the Internal Revenue Service and, if necessary,
state tax authorities, all information returns and reports as and when
required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Class R Certificate to a
Person that is not a Permitted Transferee, or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be
charged to the Person liable for such tax); (f) to the extent that they are
under its control conduct the affairs of the Trust Fund at all times that any
Certificates are outstanding so as to maintain the status of each REMIC
created hereunder as a REMIC under the REMIC Provisions; (g) not knowingly or
intentionally take any action or omit to take any action that would cause the
termination of the REMIC status of any REMIC created hereunder; (h) pay, from
the sources specified in the last paragraph of this Section 8.11, the amount
of any federal, state and local taxes, including prohibited transaction taxes
as described below, imposed on any REMIC created hereunder prior to the
termination of the Trust Fund when and as the same shall be due and payable
(but such obligation shall not prevent the Trustee or any other appropriate
Person from contesting any such tax in appropriate proceedings and shall not
prevent the Trustee from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings); (i) sign or cause to be signed
federal, state or local income tax or information returns; (j) maintain
records relating to each REMIC created hereunder, including but not limited to
the income, expenses, assets and liabilities of each such REMIC, and the fair
market value and adjusted basis of the Trust Fund property determined at such
intervals as may be required by the Code, as may be necessary to prepare the
foregoing returns, schedules, statements or information; and (k) as and when
necessary and appropriate, represent the Trust Fund in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year
of any REMIC created hereunder, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of the Trust Fund, and otherwise act on behalf of any REMIC created
hereunder in relation to any tax matter involving any such REMIC.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor shall provide, or cause to be provided, to the Trustee within 10
days after the Closing Date all information or data that the Trustee requests
in writing and determines to be relevant for tax purposes to the valuations
and offering prices of the Certificates, including, without limitation, the
price, yield, prepayment assumption and projected cash flows of the
Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, request in order
to enable the Trustee to perform its duties as set forth herein. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause
to be provided, accurate information or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of the
Trust Fund as defined in Section 860F(a)(2) of the Code, on the "net income
from foreclosure property" of the Trust Fund as defined in Section 860G(c) of
the Code, on any contribution to the Trust Fund after the startup day pursuant
to Section 860G(d) of the Code, or any other tax is imposed, including,
without limitation, any federal, state or local tax or minimum tax imposed
upon the Trust Fund pursuant to Sections 23153 and 24872 of the California
Revenue and Taxation Code if not paid as otherwise provided for herein, such
tax shall be paid by (i) the Trustee, if any such other tax arises out of or
results from a breach by the Trustee of any of its obligations under this
Agreement, (ii) (x) the Master Servicer, in the case of any such minimum tax,
and (y) any party hereto (other than the Trustee) to the extent any such other
tax arises out of or results from a breach by such other party of any of its
obligations under this Agreement or (iii) in all other cases, or in the event
that any liable party here fails to honor its obligations under the preceding
clauses (i) or (ii), any such tax will be paid first with amounts otherwise to
be distributed to the Class R Certificateholders and the Class B-IO
Certificateholders (pro rata), and second with amounts otherwise to be
distributed to all other Certificateholders in the following order of
priority: first, to the Class BF and Class BV Certificates (pro rata), second,
to the Class MF-2 and MV-2 Certificates (pro rata), third, to the Class MF-1
and MV-1 Certificates (pro rata), and fourth, to the Fixed Rate Class A
Certificates and the Class AV Certificates (pro rata). Notwithstanding
anything to the contrary contained herein, to the extent that such tax is
payable by the Class R Certificates, the Trustee is hereby authorized to
retain on any Distribution Date, from the Holders of the Class R Certificates
(and, if necessary, second, from the Holders of the all other Certificates in
the priority specified in the preceding sentence), funds otherwise
distributable to such Holders in an amount sufficient to pay such tax. The
Trustee agrees to promptly notify in writing the party liable for any such tax
of the amount thereof and the due date for the payment thereof.
The Trustee shall treat the Fixed Rate Carryover Reserve Fund as an
outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h)
that is owned by the Class BF-IO Certificateholders and that is not an asset
of the REMIC. The Trustee shall treat the rights of the Class AF-1, Class
AF-2, Class AF-3, Class AF-4, Class AF-5, Class AF-6, Class MF-1, Class MF-2
and Class BF Certificateholders to receive payments from the Fixed Rate
Carryover Reserve Fund rights in an interest rate cap contract written by the
Class BF-IO Certificateholder in favor of the Fixed Rate Certificateholders.
Thus, each Fixed Rate Certificate shall be treated as representing ownership
of not only REMIC 4 Regular Interests, but also ownership of an interest in an
interest rate cap contract. For purposes of determining the issue price of the
REMIC 4 Regular interests, the Trustee shall assume that the interest rate cap
contract has a value of $5,000.
The Trustee shall treat the Adjustable Rate Carryover Reserve Fund as an
outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h)
that is owned by the Class BV-IO Certificateholders and that is not an asset
of the REMIC. The Trustee shall treat the rights of the Class AF-1, Class
AV-1, Class AV-2, Class MV-1, Class MV-2 and Class BV Certificateholders to
receive payments from the Adjustable Rate Carryover Reserve Fund rights in an
interest rate cap contract written by the Class BV-IO Certificateholder in
favor of the Class AF-1, Class AV-1, Class AV-2, Class MV-1, Class MV-2, and
Class BV Certificateholders. Thus each Class AF-1, Class AV-1, Class AV-2,
Class MV-1, Class MV-2, and Class BV Certificate shall be treated as
representing ownership of not only REMIC 4 Regular Interests, but also
ownership of an interest in an interest rate cap contract. For purposes of
determining the issue price of the REMIC 4 Regular interests, the Trustee
shall assume that the interest rate cap contract has a value of $5,000.
ARTICLE IX.
TERMINATION
Section 9.01. Termination upon Liquidation or Repurchase of all Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Master Servicer, the Seller and the Trustee created hereby with
respect to the Trust Fund shall terminate upon the earlier of (a) the
repurchase by the Master Servicer of all of the Mortgage Loans (and REO
Properties) remaining in the each Loan Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan in such Loan
Group (other than in respect of REO Property), (ii) accrued interest thereon
at the applicable Mortgage Rate (or, if such repurchase is effected by the
Master Servicer, at the applicable Net Mortgage Rate), (iii) the appraised
value of any REO Property in such Loan Group (up to the Stated Principal
Balance of the related Mortgage Loan), such appraisal to be conducted by an
appraiser mutually agreed upon by the Master Servicer and the Trustee and (iv)
any unreimbursed Servicing Advances, and the principal portion of any
unreimbursed Advances, made on the Mortgage Loans in such Loan Group prior to
the exercise of such repurchase and (b) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property and (ii)
the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement, as applicable. In no event
shall the trusts created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
of Joseph P. Kennedy, the late Ambassador of the United States to the Court of
St. James, living on the date hereof and (ii) the Latest Possible Maturity
Date.
The right to repurchase all Mortgage Loans and REO Properties in a Loan
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of the Mortgage Loans in such Loan Group, at the time of any
such repurchase, aggregating ten percent or less of the sum of the Stated
Principal Balance of the Initial Mortgage Loans in such Loan Group as of the
Initial Cut-off Date plus the amount of the Pre-Funded Amount originally
allocated to purchase Subsequent Mortgage Loans to be included in the related
Loan Group.
Section 9.02. Final Distribution on the Certificates.
If on any Determination Date, (i) the Master Servicer determines that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Certificate Account, the Master
Servicer shall direct the Trustee to send a final distribution notice promptly
to each Certificateholder or (ii) the Trustee determines that a Class of
Certificates shall be retired after a final distribution on such Class, the
Trustee shall notify the Certificateholders within five (5) Business Days
after such Determination Date that the final distribution in retirement of
such Class of Certificates is scheduled to be made on the immediately
following Distribution Date. Any final distribution made pursuant to the
immediately preceding sentence will be made only upon presentation and
surrender of the related Certificates at the Corporate Trust Office of the
Trustee. If the Master Servicer elects to terminate the Trust Fund pursuant to
clause (a) of Section 9.01, at least 20 days prior to the date notice is to be
mailed to the affected Certificateholders, such electing party shall notify
the Depositor and the Trustee of the date such electing party intends to
terminate the Trust Fund and of the applicable repurchase price of the
Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 10th day
and no later than the 15th day of the month immediately preceding the month of
such final distribution. Any such notice shall specify (a) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) 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 therein specified. The Master Servicer will give
such notice to each Rating Agency at the time such notice is given to
Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Certificate Account to be remitted to the Trustee for deposit in
the Distribution Account on the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of
the Certificates. Upon such final deposit with respect to the Trust Fund and
the receipt by the Trustee of a Request for Release therefor, the Trustee
shall promptly release to the Master Servicer the Mortgage Files for the
Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to Certificateholders of each Class the amounts
allocable to such Certificates held in the Distribution Account (and, if
applicable, the Fixed Rate Carryover Reserve Fund and the Adjustable Rate
Carryover Reserve Fund) in the order and priority set forth in Section 4.04
hereof on the final Distribution Date and in proportion to their respective
Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within six months after the second notice all the applicable Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets that remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund that remain subject hereto.
Section 9.03. Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option on
both of the Fixed Rate Mortgage Loans and the Adjustable Rate Mortgage Loans
as provided in Section 9.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee has been
supplied with an Opinion of Counsel, at the expense of the Master Servicer, to
the effect that the failure of the Trust Fund to comply with the requirements
of this Section 9.03 will not (i) result in the imposition of taxes on
"prohibited transactions" of a REMIC, or (ii) cause any REMIC created
hereunder to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(1) The Master Servicer shall establish a 90-day
liquidation period and notify the Trustee thereof, which shall in
turn specify the first day of such period in a statement attached to
the Trust Fund's final Tax Return pursuant to Treasury Regulation
Section 1.860F-1. The Master Servicer shall satisfy all the
requirements of a qualified liquidation under Section 860F of the
Code and any regulations thereunder, as evidenced by an Opinion of
Counsel obtained at the expense of the Master Servicer;
(2) During such 90-day liquidation period, and at or prior
to the time of making the final payment on the Certificates, the
Master Servicer as agent of the Trustee shall sell all of the assets
of the Trust Fund for cash; and
(3) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Class R Certificateholders all cash
on hand (other than cash retained to meet claims), and the Trust Fund
shall terminate at that time.
(b) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Master Servicer to specify the 90-day liquidation period for the
Trust Fund, which authorization shall be binding upon all successor
Certificateholders.
(c) The Trustee as agent for each REMIC created hereunder hereby agrees
to adopt and sign such a plan of complete liquidation upon the written request
of the Master Servicer, and the receipt of the Opinion of Counsel referred to
in Section 9.03(a)(1) and to take such other action in connection therewith as
may be reasonably requested by the Master Servicer.
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Seller and the Trustee, without the consent of any of the
Certificateholders to cure any ambiguity, to correct or supplement any
provisions herein, or to make such other provisions with respect to matters or
questions arising under this Agreement, as shall not be inconsistent with any
other provisions herein if such action shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of any
Certificateholder; provided that any such amendment shall be deemed not to
adversely affect in any material respect the interests of the
Certificateholders and no such Opinion of Counsel shall be required if the
Person requesting such amendment obtains a letter from each Rating Agency
stating that such amendment would not result in the downgrading or withdrawal
of the respective ratings then assigned to the Certificates, it being
understood and agreed that any such letter in and of itself will not represent
a determination as to the materiality of any such amendment and will represent
a determination only as to the credit issues affecting any such rating.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the Trustee, the Depositor, the Master Servicer and the
Seller may at any time and from time to time amend this Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
or appropriate to maintain the qualification of the Trust Fund as a REMIC
under the Code or to avoid or minimize the risk of the imposition of any tax
on the Trust Fund pursuant to the Code that would be a claim against the Trust
Fund at any time prior to the final redemption of the Certificates, provided
that the Trustee have been provided an Opinion of Counsel, which opinion shall
be an expense of the party requesting such opinion but in any case shall not
be an expense of the Trustee, to the effect that such action is necessary or
appropriate to maintain such qualification or to avoid or minimize the risk of
the imposition of such a tax.
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer, the Seller and the Trustee and the Holders of each Class
of Certificates affected thereby evidencing not less than 51% of the Voting
Rights of such Class 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
that no such amendment shall (i) reduce in any manner the amount of, or delay
the timing of, payments required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates in
a manner other than as described in (i), without the consent of the Holders of
Certificates of such Class evidencing 66% or more of the Voting Rights of such
Class or (iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel, which opinion shall be an expense of the
party requesting such amendment but in any case shall not be an expense of the
Trustee, to the effect that such amendment will not cause the imposition of
any tax on the Trust Fund or the Certificateholders or cause the Trust Fund to
fail to qualify as a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel, satisfactory to the Trustee
that (i) such amendment is permitted and is not prohibited by this Agreement
and that all requirements for amending this Agreement have been complied with;
and (ii) either (A) the amendment does not adversely affect in any material
respect the interests of any Certificateholder or (B) the conclusion set forth
in the immediately preceding clause (A) is not required to be reached pursuant
to this Section 10.01.
Section 10.02. Recordation of Agreement; Counterparts.
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 properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at its
expense.
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 counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
Section 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance of the
Mortgage Notes, Mortgages, assignments of Mortgages, title insurance policies
and any modifications, extensions and/or assumption agreements and private
mortgage insurance policies relating to the Mortgage Loans by the Depositor to
the Trustee be, and be construed as, an absolute sale thereof to the Trustee.
It is, further, not the intention of the parties that such conveyance be
deemed a pledge thereof by the Depositor to the Trustee. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be
the property of the Depositor, or if for any other reason this Agreement or
any Subsequent Transfer Agreement is held or deemed to create a security
interest in such assets, then (i) this Agreement shall be deemed to be a
security agreement (within the meaning of the Uniform Commercial Code of the
State of New York) with respect to all such assets and security interests and
(ii) the conveyance provided for in this Agreement and any Subsequent Transfer
Agreement shall be deemed to be an assignment and a grant pursuant to the
terms of this Agreement by the Depositor to the Trustee, for the benefit of
the Certificateholders, of a security interest in all of the assets that
constitute the Trust Fund, whether now owned or hereafter acquired.
The Depositor for the benefit of the Certificateholders shall, to the
extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the assets of the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for
the benefit of the Certificateholders.
Section 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii)The occurrence of any Event of Default that has not
been cured;
(iii) The resignation or termination of the Master Servicer
or the Trustee and the appointment of any successor;
(iv)The repurchase or substitution of Mortgage Loans
pursuant to Sections 2.02, 2.03, 2.04 and 3.12; and
(v) The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
(i) Each report to Certificateholders described in Section
4.04;
(ii) Each annual statement as to compliance described in
Section 3.17; and
(iii)Each annual independent public accountants'
servicing report described in Section 3.18.
(b) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor, CWABS, Inc., 4500 Park Granada, Calabasas, California 91302,
Attention: Michael Muir, with a copy to the same address, Attention: Legal
Department; (b) in the case of the Seller or the Master Servicer, Countrywide
Home Loans, Inc., 4500 Park Granada, Calabasas, California 91302, Attention:
Michael Muir, with a copy to the same address, Attention: Legal Department, or
such other address as may be hereafter furnished to the Depositor and the
Trustee by the Master Servicer in writing; (c) in the case of the Trustee, The
Bank of New York, 101 Barclay Street, 12E, New York, New York Attention:
Corporate Trust MBS Administration or such other address as the Trustee may
hereafter furnish to the Depositor or the Master Servicer; and (d) in the case
of the Rating Agencies, (i) Moody's Investors Service, Inc., Attention: ABS
Monitoring Department, 99 Church Street, Sixth Floor, New York, New York 10017
and (ii) Duff & Phelps Credit Rating Company, Attention: 17 State Street, New
York, New York 10004. Notices to Certificateholders shall be deemed given when
mailed, first class postage prepaid, to their respective addresses appearing
in the Certificate Register.
Section 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Section 6.02, this Agreement may not be assigned by the
Master Servicer without the prior written consent of the Trustee and
Depositor.
Section 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third party 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 or by availing itself
of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, the Holders of Certificates evidencing not less than
25% of the Voting Rights evidenced by the Certificates shall also have made
written request to 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 60 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
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 10.08, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit any representative of the Depositor or the Trustee during the Master
Servicer's normal business hours, to examine all the books of account,
records, reports and other papers of the Master Servicer relating to the
Mortgage Loans, to make copies and extracts therefrom, to cause such books to
be audited by independent certified public accountants selected by the
Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Master Servicer hereby
authorizes such accountants to discuss with such representative such affairs,
finances and accounts), all at such reasonable times and as often as may be
reasonably requested. Any out-of-pocket expense incident to the exercise by
the Depositor or the Trustee of any right under this Section 10.09 shall be
borne by the party requesting such inspection; all other such expenses shall
be borne by the Master Servicer.
Section 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof
by the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
* * *
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Seller and the Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above written.
CWABS, INC.,
as Depositor
By:---------------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.,
as Master Servicer and Seller
By:---------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:---------------------------------------
Name:
Title:
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this [ ] day of February, 2000, before me, a notary
public in and for said State, appeared Michael Muir, personally known to me on
the basis of satisfactory evidence to be the Executive Vice President of
Countrywide Home Loans, Inc., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such 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
[Notarial Seal]
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this [ ] day of February, 2000, before me, a notary
public in and for said State, appeared Michael Muir, personally known to me on
the basis of satisfactory evidence to be the Vice President of CWABS, Inc.,
one of the corporations that executed the within instrument, and also known to
me to be the person who executed it on behalf of such 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
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this [ ] day of February, 2000, before me, a notary
public in and for said State, appeared _______________________, personally
known to me on the basis of satisfactory evidence to be an Assistant
Treasurer, of The Bank of New York, a New York banking corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such 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
[Notarial Seal]
Exhibit A-1
through A-16
[Exhibits A-1 through A-16 are
photocopies of such Certificates as
delivered.]
[see appropriate documents delivered at closing]
Exhibit B
[Reserved]
Exhibit C
[Reserved]
Exhibit D
[Exhibit D is a photocopy
of the Class R Certificate
as delivered.]
[see appropriate documents delivered at closing]
Exhibit E
[Exhibit E is a photocopy
of the Tax Matters Person Class R Certificate
as delivered.]
[see appropriate documents delivered at closing]
Exhibit F-1 and F-2
[Exhibit F-1 and F-2 are schedules of Mortgage Loans]
[delivered to Trustee at closing and on file with the Trustee]
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of February 1, 2000
among CWABS, Inc., as Depositor, Countrywide Home Loans,
Inc., as Seller and Master Servicer, and The Bank of New York,
as Trustee, Asset-Backed Certificates, Series 2000-1
---------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned 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 in the attached list of exceptions) it
has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the following form: "Pay
to the order of ____________ , without recourse", or, if the original
Mortgage Note has been lost or destroyed and not replaced, an original lost
note affidavit from the Seller, stating that the original Mortgage Note was
lost or destroyed, together with a copy of the related Mortgage Note; and
(ii) a duly executed assignment of the Mortgage in the form
permitted by Section 2.01 of the Pooling and Servicing Agreement referred to
above.
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.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced 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 above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:__________________________
Name:
Title:
EXHIBIT G-2
FORM OF INTERIM CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of February 1, 2000
among CWABS, Inc., as Depositor, Countrywide Home Loans,
Inc., as Seller and Master Servicer, and The Bank of
New York, as Trustee, Asset-Backed Certificates,
Series 2000-1 [and the Subsequent Transfer Agreement dated
as of February 29, 2000 among CWABS, Inc., as Depositor,
Countrywide Home Loans, Inc., as Seller, and The Bank of
New York, as Trustee]
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that,
except as listed in the following paragraph, as to each [Initial Mortgage
Loan][Subsequent Mortgage Loan] listed in the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] (other than any
[Mortgage Loan][Loan Number and Borrower Identification Mortgage Loan
Schedule] paid in full or listed on the attached list of exceptions) it has
received:
(i) the original Mortgage Note, endorsed by the Seller or
the originator of such Mortgage Loan, without recourse in
the following form: "Pay to the order of _______________
without recourse", with all intervening endorsements that
show a complete chain of endorsement from the originator to
the Seller, or, if the original Mortgage Note has been lost
or destroyed and not replaced, an original lost note
affidavit from the Seller, stating that the original
Mortgage Note was lost or destroyed, together with a copy of
the related Mortgage Note;
(ii) in the case of each [Initial Mortgage Loan][Subsequent
Mortgage Loan] that is not a MERS Mortgage Loan, the
original recorded Mortgage, [and in the case of each
[Initial Mortgage Loan][Subsequent Mortgage Loan] that is a
MERS Mortgage Loan, the original Mortgage, noting the
presence of the MIN of the [Initial Mortgage
Loan][Subsequent Mortgage Loan] and language indicating that
the [Initial Mortgage Loan][Subsequent Mortgage Loan] is a
MOM Loan if the [Initial Mortgage Loan][Subsequent Mortgage
Loan] is a MOM Loan,] with evidence of recording indicated
thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded;
(iii) in the case of each [Initial Mortgage Loan][Subsequent
Mortgage Loan] that is not a MERS Mortgage Loan, a duly
executed assignment of the Mortgage to "The Bank of New
York, a New York banking corporation, as trustee under the
Pooling and Servicing Agreement dated as of February 1,
2000, CWABS, Inc., Asset-Backed Certificates, Series 2000-1,
without recourse" (each such assignment, when duly and
validly completed, to be in recordable form and sufficient
to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment
relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of
such Mortgage [(noting the presence of a MIN in the case of
each MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with
evidence of recording thereon if recordation thereof is
permissible under applicable law; and
(vi) the original or duplicate original lender's title
policy and all riders thereto or, in the event such original
title policy has not been received from the insurer, any one
of an original title binder, an original preliminary title
report or an original title commitment, or a copy thereof
certified by the title company, with the original policy of
title insurance to be delivered within one year of the
Closing Date.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Seller cannot deliver the original recorded Mortgage or
all interim recorded assignments of the Mortgage satisfying the requirements
of clause (ii), (iii) or (iv), as applicable, the Trustee has received, in
lieu thereof, a true and complete copy of such Mortgage and/or such assignment
or assignments of the Mortgage, as applicable, each certified by the Seller,
the applicable title company, escrow agent or attorney, or the originator of
such [Initial Mortgage Loan][Subsequent Mortgage Loan], as the case may be, to
be a true and complete copy of the original Mortgage or assignment of Mortgage
submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
[Initial Mortgage Loan][Subsequent Mortgage Loan], and (ii) the information
set forth in items (i), (iv), (v), (vi), (viii), (xi) and (xiv) 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
above-referenced 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 [Initial Mortgage Loans][Subsequent Mortgage Loan] identified on the
[Mortgage Loan Schedule][Loan Number and Borrower Identification 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 above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:__________________________
Name:
Title:
EXHIBIT G-3
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of February 1, 2000
(the "Pooling and Servicing Agreement") among CWABS, Inc.,
as Depositor, Countrywide Home Loans, Inc., as Seller and
Master Servicer, and The Bank of New York, as Trustee,
Asset-Backed Certificates, Series 2000-1 [and the Subsequent
Transfer Agreement dated as of February 29, 2000 (the
"Subsequent Transfer Agreement") among CWABS, Inc., as
Depositor, Countrywide Home Loans, Inc., as Seller, and The
Bank of New York, as Trustee]
-------------------------------------------------------------
Gentlemen:
[Reference is made to the Initial Certification of Trustee relating
to the above-referenced series, with the schedule of exceptions attached
thereto, delivered by the undersigned, as Trustee, on the Closing Date in
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement.] The undersigned hereby certifies that [, with respect to the
Subsequent Mortgage Loans delivered in connection with the Subsequent Transfer
Agreement,] as to each Delay Delivery Mortgage Loan listed on the Schedule A
attached hereto (other than any [Initial Mortgage Loan][Subsequent Mortgage
Loan] paid in full or listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or
the originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if the
original Mortgage Note has been lost or destroyed and not replaced,
an original lost note affidavit from the Seller, stating that the
original Mortgage Note was lost or destroyed, together with a copy of
the related Mortgage Note;
(ii) in the case of each [Initial Mortgage Loan][Subsequent
Mortgage Loan] that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage to "The Bank of New York, a New York
banking corporation, as trustee under the Pooling and Servicing
Agreement dated as of February 1, 2000, CWABS, Inc., Asset-Backed
Certificates, Series 2000-1, without recourse" (each such assignment,
when duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment relates);
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.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced 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 [Initial Mortgage Loans][Subsequent Mortgage Loans] identified on the
[Mortgage Loan Schedule][Loan Number and Borrower Identification Mortgage Loan
Schedule] or (ii) the collectibility, insurability, effectiveness or
suitability of any such [Initial Mortgage Loan][Subsequent Mortgage Loan].
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
THE BANK OF NEW YORK,
as Trustee
By:_______________________
Name:
Title:
EXHIBIT H-1
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
Re: Pooling and Servicing Agreement dated as of February 1, 2000 among
CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as Seller and
Master Servicer, and The Bank of New York, as Trustee, Asset-Backed
Certificates, Series 2000-1 [and the Subsequent Transfer Agreement dated
as of February 29, 2000 among CWABS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller, and The Bank of New York, as Trustee]
------------------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that as to
each [Initial Mortgage Loan][Subsequent Mortgage Loan] listed in the [Mortgage
Loan Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule]
(other than any [Initial Mortgage Loan][Subsequent Mortgage Loan] paid in full
or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the following form: "Pay
to the order of _________________ without recourse", with all intervening
endorsements that show a complete chain of endorsement from the originator to
the Seller, or, if the original Mortgage Note has been lost or destroyed and
not replaced, an original lost note affidavit from the Seller, stating that
the original Mortgage Note was lost or destroyed, together with a copy of the
related Mortgage Note;
(ii) in the case of each [Initial Mortgage Loan][Subsequent
Mortgage Loan] that is not a MERS Mortgage Loan, the original recorded
Mortgage, [and in the case of each [Initial Mortgage Loan][Subsequent Mortgage
Loan] that is a MERS Mortgage Loan, the original Mortgage, noting the presence
of the MIN of the [Initial Mortgage Loan][Subsequent Mortgage Loan] and
language indicating that the [Initial Mortgage Loan][Subsequent Mortgage Loan]
is a MOM Loan if the [Initial Mortgage Loan][Subsequent Mortgage Loan] is a
MOM Loan,] with evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which such Mortgage has
been recorded;
(iii) in the case of each [Initial Mortgage Loan][Subsequent
Mortgage Loan] that is not a MERS Mortgage Loan, a duly executed assignment of
the Mortgage to "The Bank of New York, a New York banking corporation, as
trustee under the Pooling and Servicing Agreement dated as of February 1,
2000, CWABS, Inc., Asset-Backed Certificates, Series 2000-1, without recourse"
(each such assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under applicable law;
and
(vi) the original or duplicate original lender's title policy
and all riders thereto or any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company.
If the public recording office in which a Mortgage or assignment
thereof is recorded has retained the original of such Mortgage or assignment,
the Trustee has received, in lieu thereof, a copy of the original Mortgage or
assignment so retained, with evidence of recording thereon, certified to be
true and complete by such recording office.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (v),
(vi), (viii), (xiii) and (xiv) 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
above-referenced 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 [Initial Mortgage Loans][Subsequent Mortgage Loan] identified on the
[Mortgage Loan Schedule][Loan Number and Borrower Identification Mortgage Loan
Schedule] or (ii) the collectibility, insurability, effectiveness or
suitability of any such [Initial Mortgage Loan][Subsequent Mortgage Loan].
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:__________________________
Name:
Title:
EXHIBIT I
TRANSFER AFFIDAVIT
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 an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, dated
as of February 1, 2000 (the "Agreement"), by and among CWABS, Inc., as
depositor (the "Depositor"), Countrywide Home Loans, Inc., as Seller and
Master Servicer and The Bank of New York, 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 in the Certificate either (i) for its own
account or (ii) as nominee, trustee or agent for another Person and has
attached hereto an affidavit from such Person in substantially the same form
as this affidavit. The Transferee has no knowledge that any such affidavit is
false.
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.
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-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(c) 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(c) 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 J 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 Class
R Certificates.
8. The Transferee's taxpayer identification number is _____.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(3O).
10. The Transferee is aware that the Class R Certificates may
be "noneconomic residual interests" 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. In
addition, as the holder of a noneconomic residual interest, the Transferee may
incur tax liabilities in excess of any cash flows generated by the interest
and the Transferee hereby represents that it intends to pay taxes associated
with holding the residual interest as they become due.
* * *
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 _____________, 19__.
[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 _______, 19__.
--------------------------
NOTARY PUBLIC
My Commission expires the __day of
_______________, 19__.
EXHIBIT 1
Certain Definitions
"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.
"Permitted Transferee": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(1) of the
Code) with respect to any Class R Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in Section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity (treated as a corporation or a partnership for
federal income tax purposes) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, or an estate
whose income 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 trustor
unless such Person has furnished the transferor and the Trustee with a duly
completed Internal Revenue Service Form 4224, and (vii) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Class R Certificate to such Person may cause the
Trust Fund to fail to qualify as a REMIC at any time that certain Certificates
are Outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality
of the United States or of any State or political subdivision thereof for
these purposes if all of its activities are subject to tax and, with the
exception of the Federal Home Loan Mortgage Corporation, a majority of its
board of directors is not selected by such government unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
EXHIBIT 2
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership
Interest in a Class 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 the rights of each Person acquiring any Ownership
Interest in a Class R Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership
Interest in a Class R 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 a Class R Certificate
may be registered on the Closing Date or thereafter transferred, and
the Trustee shall not register the Transfer of any Class R
Certificate unless, in addition to the certificates required to be
delivered to the Trustee under subparagraph (b) above, the Trustee
shall have been furnished with an affidavit (a "Transfer Affidavit")
of the initial owner or the proposed transferee in the form attached
hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person attempts
to Transfer its Ownership Interest in a Class R Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer
of a Class R Certificate and (C) not to Transfer its Ownership
Interest in a Class R Certificate or to cause the Transfer of an
Ownership Interest in a Class R Certificate to any other Person if it
has actual knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any
Ownership Interest in a Class R Certificate in violation of the
provisions of this Section 5.02(c) shall be absolutely null and void
and shall vest no rights in the purported Transferee. If any
purported transferee shall become a Holder of a Class R Certificate
in violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer of
such Class R Certificate. The Trustee shall be under no liability to
any Person for any registration of Transfer of a Class R Certificate
that is in fact not permitted by Section 5.02(b) and this Section
5.02(c) 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 after receipt of the related Transfer Affidavit,
Transferor Certificate and either the Rule 144A Letter or the
Investment Letter. The Trustee shall be entitled but not obligated to
recover from any Holder of a Class R Certificate that was in fact not
a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Class R Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee
of such Certificate.
(v) The Master Servicer shall use its best efforts to
make available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section
860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Class R Certificate to any Holder who is not a
Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set
forth in this Section 5.02(c) shall cease to apply (and the applicable
portions of the legend on a Class R Certificate may be deleted) with respect
to Transfers occurring after delivery to the Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trustee, the Seller or
the Master Servicer to the effect that the elimination of such restrictions
will not cause the Trust Fund to fail to qualify as a REMIC at any time that
the Certificates are outstanding or result in the imposition of any tax on the
Trust Fund, a Certificateholder or another Person. Each Person holding or
acquiring any Ownership Interest in a Class R Certificate hereby consents to
any amendment of this Agreement that, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Class R Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Class R
Certificate that is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE FOR
CLASS B-IO AND CLASS R CERTIFICATES
Date:
CWABS, Inc.,
as Depositor
4500 Park Granada
Calabasas, California 91302
The Bank of New York,
as Trustee
101 Barclay Street, 12E
New York, New York 10286
Re: CWABS, Inc. Asset-Backed
Certificates, Series 2000-1
---------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class __
Certificates, we certify that (a) we understand that the Certificates have not
been registered under the Securities Act of 1933, as amended (the "Act"), and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) 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 that would result in, a
violation of Section 5 of the Act and (c) if we are disposing of a Class R
Certificate, we have no knowledge the Transferee is not a Permitted
Transferee. All capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Pooling and Servicing Agreement
dated as of February 1, 2000, among CWABS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller and Master Servicer, and The Bank of New York, as
Trustee.
Very truly yours,
----------------------------------
Name of Transferor
By: _______________________________
Name:
Title:
EXHIBIT K
FORM OF INVESTMENT LETTER [NON-RULE 144A] FOR
CLASS B-IO AND CLASS R CERTIFICATES
Date:
CWABS, Inc.,
as Depositor
4500 Park Granada
Calabasas, California 91302
The Bank of New York,
as Trustee
101 Barclay Street, 12E
New York, New York 10286
Re: CWABS, Inc. Asset-Backed
Certificates, Series 2000-1
---------------------------
Ladies and Gentlemen:
In connection with our acquisition of the Class __
Certificates in the Denomination of (the "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,
nor a plan subject to Section 4975 of the Internal Revenue Code of 1986 (each
of the foregoing, a "Plan"), nor are we acting on behalf of any Plan or (e) we
are acquiring the Certificates for investment for our own account and not with
a view to any distribution of the 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 that 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 pursuant
to an exemption from the Act, (2) the purchaser or transferee of the
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 dated as of February 1, 2000 (the "Agreement"), among
CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as Seller and Master
Servicer, and The Bank of New York, as Trustee. All capitalized terms used
herein but not defined herein shall have the meanings assigned to them in the
Agreement.
Very truly yours,
------------------------------------
Name of Transferee
By: ________________________________
Name:
Title:
EXHIBIT L
FORM OF RULE 144A LETTER FOR
CLASS B-IO AND CLASS R CERTIFICATES
Date:
CWABS, Inc.,
as Depositor
4500 Park Granada
Calabasas, California 91101
The Bank of New York,
as Trustee
101 Barclay Street, 12E
New York, New York 10286
Re: CWABS, Inc. Asset-Backed
Certificates, Series 2000-1
Ladies and Gentlemen:
In connection with our proposed purchase of the Class R
Certificates (the "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 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, nor a plan subject to Section 4975 of
the Internal Revenue Code of 1986 (each of the foregoing, a "Plan"), nor are
we acting on behalf of any Plan or (e) 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, and (f) 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
the Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified 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. All capitalized terms used herein but not defined herein
shall have the meanings assigned to them in the Pooling and Servicing
Agreement dated as of February 1, 2000, among CWABS, Inc., as Depositor,
Countrywide Home Loans, Inc., as Seller and Master Servicer, and The Bank of
New York, as Trustee.
\ -------------------------------------
Name of Buyer
By: __________________________________
Name:
Title:
ANNEX 1 TO EXHIBIT L
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:
1. As indicated below, the undersigned is the President,
Chief Financial Officer, Senior Vice President or other executive officer of
the Buyer.
2. 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.
___ 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. The Buyer is a
small business investment company licensed by the
U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act
of 1958.
___ Business Development Company. The Buyer is a
business development company as defined in Section
202(a)(22) of the Investment Advisors Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee
is a bank or trust company and whose participants
are exclusively State or Local Plans or ERISA Plans
as defined above, and no participant of the Buyer is
an individual retirement account or an H.R. 10
(Keogh) plan.
3. 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) 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.
4. 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.
5. 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.
6. 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 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.
-----------------------------------
Name of Buyer
By: _______________________________
Name:
Title:
Date: _____________________________
ANNEX 2 TO EXHIBIT L
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) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
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.
--------------------------------------
Name of Buyer or Adviser
By: ___________________________________
Name:
Title:
IF AN ADVISER:
--------------------------------------
Name of Buyer
Date: _________________________________
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
Loan Information
Name of Mortgagor:
---------------------------------------
Master Servicer
Loan No.:
---------------------------------------
Trustee
Name:
---------------------------------------
Address:
---------------------------------------
Trustee
Mortgage File No.:
---------------------------------------
The undersigned Master Servicer hereby acknowledges that it has
received from _______________________________________, as Trustee for the
Holders of Asset-Backed Certificates, Series 2000-1, the documents referred to
below (the "Documents"). All capitalized terms not otherwise defined in this
Request for Release shall have the meanings given them in the Pooling and
Servicing Agreement dated as of February 1, 2000 (the "Pooling and Servicing
Agreement") among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as
Seller and Master Servicer, and the Trustee.
( ) Mortgage Note dated ___________, ____, in the original
principal sum of $________, made by __________________, payable to,
or endorsed to the order of, the Trustee.
( ) Mortgage recorded on _________________ as instrument no. _____________
in the County Recorder's Office of the County of ________________,
State of _______________ in book/reel/docket _______________ of
official records at page/image _____________.
( ) Deed of Trust recorded on _________________ as instrument no.
________________ in the County Recorder's Office of the County
of ________________, State of _______________ in book/reel/docket
_______________ of official records at page/image _____________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_________________ as instrument no.__________ in the County Recorder's
Office of the County of __________, State of _______________ in
book/reel/docket _______________ of official records at page/image
_____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) ----------------------------------------------
( ) ----------------------------------------------
( ) ----------------------------------------------
( ) ----------------------------------------------
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain
possession of the Documents in trust for the benefit of the Trustee,
solely for the purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly
permit the Documents to become subject to, or encumbered by, any
claim, liens, security interest, charges, writs of attachment or
other impositions nor shall the Master Servicer assert or seek to
assert any claims or rights of setoff to or against the Documents or
any proceeds thereof.
(3) The Master Servicer shall return each and every
Document previously requested from the Mortgage File to the Trustee
when the need therefor no longer exists, unless the Mortgage Loan
relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except as
expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including
any proceeds of proceeds, coming into the possession or control of
the Master Servicer shall at all times be earmarked for the account
of the Trustee, and the Master Servicer shall keep the Documents and
any proceeds separate and distinct from all other property in the
Master Servicer's possession, custody or control.
[Master Servicer]
By _______________________________
Its ________________________________
Date: _________________, ____
EXHIBIT N
REQUEST FOR RELEASE
[Mortgage Loans Paid in Full, Repurchased or Replaced]
OFFICER'S CERTIFICATE AND TRUST RECEIPT
ASSET-BACKED CERTIFICATES,
Series 2000-1
__________________________________________ HEREBY CERTIFIES THAT HE/SHE IS AN
OFFICER OF THE Master Servicer, HOLDING THE OFFICE SET FORTH BENEATH HIS/HER
SIGNATURE, AND HEREBY FURTHER CERTIFIES AS FOLLOWS:
WITH RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
[ALL PAYMENTS OF PRINCIPAL AND INTEREST HAVE BEEN MADE.] [THE [PURCHASE PRICE]
[MORTGAGE LOAN REPURCHASE PRICE] FOR SUCH MORTGAGE LOANS HAS BEEN PAID.] [THE
MORTGAGE LOANS HAVE BEEN LIQUIDATED AND THE RELATED [INSURANCE PROCEEDS]
[LIQUIDATION PROCEEDS] HAVE BEEN DEPOSITED PURSUANT TO SECTION 3.13 OF THE
POOLING AND SERVICING AGREEMENT.] [A REPLACEMENT MORTGAGE LOAN HAS BEEN
DELIVERED TO THE TRUSTEE IN THE MANNER AND OTHERWISE IN ACCORDANCE WITH THE
CONDITIONS SET FORTH IN SECTIONS 2.02 AND 2.03 OF THE POOLING AND SERVICING
AGREEMENT.]
LOAN NUMBER:_______________ BORROWER'S NAME:_____________
COUNTY:____________________
[For Substitution or Repurchase Only: The Master Servicer certifies that [an]
[no] opinion is required by Section 2.05 [and is attached hereto].]
I HEREBY CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS,
THAT ARE REQUIRED TO BE DEPOSITED IN THE CERTIFICATE ACCOUNT PURSUANT TO
SECTION 3.05 OF THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE
CREDITED.
____________ _____________________ DATED:____________
/ / VICE PRESIDENT
/ / ASSISTANT VICE PRESIDENT
Exhibit O
[Exhibit O is a photocopy
of the Depository Agreement
as delivered.]
[see appropriate documents delivered at closing]
EXHIBIT P
FORM OF MORTGAGE NOTE AND MORTGAGE
EXHIBIT Q
[FORM OF SUBSEQUENT TRANSFER AGREEMENT]
SUBSEQUENT TRANSFER AGREEMENT, dated as of ____________,
2000 (this "Subsequent Transfer Agreement"), among CWABS, INC., a Delaware
corporation, as depositor (the "Depositor"), COUNTRYWIDE HOME LOANS, INC., a
New York corporation, in its capacity as seller under the Pooling and
Servicing Agreement referred to below ( the "Seller"), and The Bank of New
York, a New York banking corporation, as trustee (the "Trustee");
WHEREAS, the Depositor, the Seller, the Trustee and CHL, as
Master Servicer, have entered in the Pooling and Servicing Agreement, dated as
of February 1, 2000 (the "Pooling and Servicing Agreement"), relation to the
CWABS, Inc. Asset-Backed Certificates, Series 2000-1 (capitalized terms not
otherwise defined herein are used as defined in the Pooling and Servicing
Agreement);
WHEREAS, Section 2.01(b) of the Pooling and Servicing
Agreement provides for the parties hereto to enter into this Subsequent
Transfer Agreement in accordance with the terms and conditions of the Pooling
and Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged the parties hereto agree as follows:
(b) The "Subsequent Transfer Date" with respect to this
Subsequent Transfer Agreement shall be ________ __, 2000.
(c) The "Subsequent Transfer Date Fixed Loan Amount" with
respect to this Subsequent Transfer Agreement shall be $_______________;
provided, however, that such amount shall not exceed the amount on deposit in
the Pre-Funding Account allocated to purchase Subsequent Mortgage Loans to be
included in the Fixed Rate Loan Group.
(d) The "Subsequent Transfer Date Subgroup 1A Amount" with
respect to this Subsequent Transfer Agreement shall be $_______________;
provided, however, that such amount shall not exceed the amount on deposit in
the Pre-Funding Account allocated to purchase Subsequent Mortgage Loans to be
included in the Loan Subgroup 1A.
(e) The "Subsequent Transfer Date Subgroup 2A Amount" with
respect to this Subsequent Transfer Agreement shall be $_______________;
provided, however, that such amount shall not exceed the amount on deposit in
the Pre-Funding Account allocated to purchase Subsequent Mortgage Loans to be
included in the Loan Subgroup 2A.
(f) The Subsequent Mortgage Loans conveyed on the Subsequent
Transfer Date shall be determined by the Seller as follows.
(i) With respect to the Subsequent Mortgage Loans that are
Fixed Rate Mortgage Loans: The Seller shall list all funded fixed
rate mortgage loans then owned by it eligible for inclusion in the
Trust Fund that qualify for inclusion in the Fixed Rate Loan Group by
the date on which they were funded, and for each date, the Mortgagors
shall be listed alphabetically. Beginning with the earliest date,
sequentially by date and within a date alphabetically, the listed
loans shall be included in Fixed Rate Loan Group until either their
aggregate Stated Principal Balance is as close as possible or to
equal to the Subsequent Transfer Date Fixed Loan Amount without
exceeding it or all of the listed loans have been transferred. No
fixed rate mortgage loan that would be a Fixed Rate Credit Comeback
Loan is eligible for conveyence to the Trust Fund on a Subsequent
Transfer Date occurring after February 29, 2000.
Once the potential fixed rate Subsequent Mortgage Loans are
identified in this manner, the total potential Fixed Rate Loan Group
shall be tested for compliance with the Fixed Rate Loan Group
characteristics identified in Section 2.01(e)(viii) after taking into
account the addition of such potential fixed rate Subsequent Mortgage
Loans. If any group characteristic is outside any permitted parameter
by more than 10% of the parameter, then beginning with the last fixed
rate mortgage loan initially added as a potential Subsequent Mortgage
Loan and progressing in reverse order, any potential fixed rate
Subsequent Mortgage Loan having a characteristic that is outside of
the permitted parameters of a parameter violated by the total
potential Fixed Rate Loan Group shall be removed. Then additional
fixed rate mortgage loans shall be added as provided in the preceding
paragraph except that no fixed rate mortgage loan shall be added if
it has a characteristic that is outside of the permitted parameters
of a parameter violated by the total potential Fixed Rate Loan Group.
This procedure shall be repeated until the pool characteristics for
the Fixed Rate Loan Group identified in Section 2.01(e)(viii) are
satisfied within 10% of each parameter specified in those
representations and warranties after taking into account the addition
of the potential fixed rate Subsequent Mortgage Loans.
(ii)With respect to the Subsequent Mortgage Loans that are
Adjustable Rate Mortgage Loans: The Seller shall list all funded
adjustable rate mortgage loans then owned by it eligible for
inclusion in the Trust Fund that qualify for inclusion in the
Adjustable Rate Loan Group by the date on which they were funded, and
for each date, the Mortgagors shall be listed alphabetically. If
adjustable rate mortgage loans are being conveyed for inclusion in
both Loan Subgroup 1A and Loan Subgroup 2A, then the adjustable rate
mortgage loans satisfying the representations any warranties in the
Pooling and Servicing Agreement applicable to all Adjustable Rate
Mortgage Loans included in Loan Subgroup 2A shall be tested (and
conveyed) first for inclusion in Loan Subgroup 2A until all
adjustable rate Subsequent Mortgage Loans for inclusion in Loan
Subgroup 2A have been determined, and then such adjustable rate
mortgage loans shall be tested (and conveyed) for inclusion in Loan
Subgroup 1A. Such adjustable rate mortgage loans that do not satisfy
the representations any warranties in the Pooling and Servicing
Agreement applicable to all Adjustable Rate Mortgage Loans included
in Loan Subgroup 2A shall only be tested (and conveyed) for inclusion
in Loan Subgroup 1A. Beginning with the earliest date, sequentially
by date and within a date alphabetically, the listed loans shall be
included in Loan Subgroup 2A until either their aggregate Stated
Principal Balance is as close as possible to equal to the Subsequent
Transfer Date Subgroup 2A Amount without exceeding it or all of the
listed loans have been transferred.
Once the potential adjustable rate Subsequent Mortgage Loans
to be included in Loan Subgroup 2A are identified in this manner, the
total potential Loan Subgroup 2A shall be tested for compliance with
Loan Subgroup 2A characteristics identified in Section 2.01(e)(viii)
after taking into account the addition of such potential adjustable
rate Subsequent Mortgage Loans to be included in Loan Subgroup 2A. If
any subgroup characteristic is outside any permitted parameter by
more than 10% of the parameter, then beginning with the last
adjustable rate mortgage loan initially added as a potential
Subsequent Mortgage Loan for inclusion in Loan Subgroup 2A and
progressing in reverse order, any potential adjustable rate
Subsequent Mortgage Loan to be included in Loan Subgroup 2A having a
characteristic that is outside of the permitted parameters of a
parameter violated by the total potential Loan Subgroup 2A shall be
removed. Then additional adjustable rate mortgage loans satisfying
the representations any warranties in the Pooling and Servicing
Agreement applicable to all Adjustable Rate Mortgage Loans included
in Loan Subgroup 2A shall be added as provided in the preceding
paragraph except that no such adjustable rate mortgage loan shall be
added if it has a characteristic that is outside of the permitted
parameters of a parameter violated by the total potential Loan
Subgroup 2A. This procedure shall be repeated until the subgroup
characteristics for Loan Subgroup 2A identified in Section
2.01(e)(viii) are satisfied within 10% of each parameter specified in
those representations and warranties after taking into account the
addition of the potential adjustable rate Subsequent Mortgage Loans
to be included in Loan Subgroup 2A.
After the adjustable rate Subsequent Mortgage Loans to be
transferred on the Subsequent Transfer Date for inclusion in Loan
Subgroup 1A have been determined, the Seller shall list all funded
adjustable rate mortgage loans then owned by it eligible for
inclusion in the Trust Fund that qualify for inclusion in Loan Group
2 by the date on which they were funded, and for each date, the
Mortgagors shall be listed alphabetically. Beginning with the
earliest date, sequentially by date and within a date alphabetically,
the listed loans shall be included in Loan Subgroup 1A until either
their aggregate Stated Principal Balance is as close as possible to
equal to the Subsequent Transfer Date Subgroup 1A Amount without
exceeding it or all of the listed loans have been transferred. The
testing procedures of the previous paragraph shall then be applied to
the total potential Loan Subgroup 1A.
(g) In case any provision of this Subsequent Transfer
Agreement shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby.
(h) In the event of any conflict between the provisions of
this Subsequent Transfer Agreement and the Pooling and Servicing Agreement,
the provisions of the Pooling and Servicing Agreement shall prevail.
(i) This Subsequent Transfer Agreement shall be governed by,
and shall be construed and enforced in accordance with the laws of the State
of New York.
(j) The Subsequent Transfer Agreement may be executed in one
or more counterparts, each of which so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties to this Subsequent Transfer
Agreement have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CWABS, INC.,
as Depositor
By:________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.,
as Seller
By:___________________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:________________________
Name:
Title:
