SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
August 17, 2000
Greenwich Capital Acceptance, Inc.
--------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 333-34330 06-1199884
--------- --------- ---------
State or Other Jurisdiction (Commission (I.R.S. Employer
Of Incorporation) File Number) Identification No.)
600 Steamboat Road
Greenwich, Connecticut 06830
---------------------- -----
(Address of Principal Executive (Zip Code)
Offices)
Registrant's telephone number, including area code: (203) 662-2700
No Change
---------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events
------------
The Registrant registered issuances of Greenwich Capital Acceptance, Inc. on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, by a Registration Statement on Form S-3 (Registration File
No. 333-34330) (the "Registration Statement"). Pursuant to the Registration
Statement, the Registrant issued approximately $214,605,100 in aggregate
principal amount of Class IA-1, Class IA-2, Class IIA, Class IIIA, Class X,
Class A-R, Class B-1, Class B-2 and Class B-3 Certificates of its Mortgage
Loan Pass-Through Certificates, Series 2000-1 on July 27, 2000. This Current
Report on Form 8-K is being filed to satisfy an undertaking, contained in the
definitive Prospectus dated June 7, 2000, as supplemented by the Prospectus
Supplement dated July 26, 2000 (the "Prospectus Supplement"), to file a copy
of the Pooling and Servicing Agreement (as defined below) executed in
connection with the issuance of the Certificates, a form of which was filed as
an exhibit to the Registration Statement.
The Certificates were issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), attached hereto as Exhibit
4.1, dated as of July 1, 2000, between Greenwich Capital Acceptance, Inc., as
depositor (the "Depositor"), Greenwich Capital Financial Products, Inc., as
seller, Countrywide Home Loans, Inc. and ABN AMRO Mortgage Group, Inc., each
as a servicer, and Bankers Trust Company of California, N.A., as trustee. The
"Offered Certificates" consist of the following classes: of Class IA-1, Class
IA-2, Class IIA, Class IIIA, Class X, Class A-R, Class B-1, Class B-2 and
Class B-3 Certificates. The Offered Certificates represent ownership interest
in assets of the trust that consists primarily of three loan groups containing
first lien, fixed and adjustable rate mortgages.
<PAGE>
Item 7. Financial Statements; Pro Forma Financial Information and
Exhibits
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
4.1 Pooling and Servicing Agreement, dated as of July 1, 2000,
between Greenwich Capital Acceptance, Inc., as Depositor,
Greenwich Capital Financial Products, Inc., as Seller,
Countrywide Home Loans, Inc. and ABN AMRO Mortgage Group,
Inc., each as a Servicer, and Bankers Trust Company of
California, N.A., as 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.
Greenwich Capital Acceptance, Inc.
By: /s/ Frank Skibo
-----------------------------
Name: Frank Skibo
Title: Vice President
Dated: August 17, 2000
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
----------- ----------- --------
4.1 Pooling and Servicing Agreement, dated as of
July 1, 2000, between Greenwich Capital Acceptance,
Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller, Countrywide Home Loans,
Inc. and ABN AMRO Mortgage Group, Inc., each as a
Servicer, and Bankers Trust Company of California,
N.A., as Trustee.
<PAGE>
EXHIBIT 4.1
-----------
<PAGE>
BROWN & WOOD LLP
One World Trade Center
New York, New York 10048
Telephone: (212) 839-5300
Facsimile: (212) 839-5599
August 17, 2000
VIA EDGAR
---------
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Greenwich Capital Acceptance, Inc.,
HarborView Mortgage Loan Trust 2000-1,
Mortgage Loan Pass Through Certificates, Series 2000-1
------------------------------------------------------
Ladies and Gentlemen:
On behalf of Greenwich Capital Acceptance, Inc. (the "Company"), we
enclose herewith for filing, pursuant to the Securities and Exchange Act of
1934, as amended, the Company's Current Report on Form 8-K, for the Pooling
and Servicing Agreement in connection with the above-referenced transaction.
Very truly yours,
/s/ Milton Vescovacci
Milton Vescovacci
Enclosure
EXECUTION COPY
==============================================================================
GREENWICH CAPITAL ACCEPTANCE, INC.,
Depositor
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
Seller
COUNTRYWIDE HOME LOANS, INC.
ABN AMRO MORTGAGE GROUP, INC.
Servicers
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2000
----------------------------------
HarborView Mortgage Loan Trust 2000-1
Mortgage Loan Pass-Through Certificates, Series 2000-1
=============================================================================
<PAGE>
<TABLE>
<CAPTION>
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.01. Defined Terms...............................................................................4
SECTION 1.02. Accounting.................................................................................45
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans...............................................................46
SECTION 2.02. Acceptance by Trustee......................................................................49
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by the Seller.................................51
SECTION 2.04. Representations and Warranties of the Seller with Respect to the Mortgage Loans............53
SECTION 2.05. Representations, Warranties and Covenants of the Servicers.................................54
SECTION 2.06. Representations and Warranties of the Depositor............................................55
SECTION 2.07. Issuance of Certificates...................................................................56
SECTION 2.08. Representations and Warranties of the Seller...............................................57
SECTION 2.09. Covenants of the Seller....................................................................58
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Servicers to Act as Servicers..............................................................59
SECTION 3.02. Sub-Servicing Agreements Between Servicers and Sub-Servicers...............................61
SECTION 3.03. Successor Sub-Servicers....................................................................62
SECTION 3.04. Liability of the Servicers.................................................................62
SECTION 3.05. No Contractual Relationship Between Sub-Servicers and the Trustee or Certificateholders....62
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements by Trustee...........................63
SECTION 3.07. Collection of Certain Mortgage Loan Payments...............................................63
SECTION 3.08. Sub-Servicing Accounts.....................................................................64
SECTION 3.09. Collection of Taxes, Assessments and Similar Items; Servicing Accounts.....................64
SECTION 3.10. Collection Accounts and Distribution Account...............................................65
SECTION 3.11. Withdrawals from the Collection Accounts and Distribution Account..........................67
SECTION 3.12. Investment of Funds in the Collection Accounts.............................................69
SECTION 3.13. [Reserved].................................................................................70
SECTION 3.14. Maintenance of Hazard Insurance Polices and Errors and Omissions and Fidelity Coverage.....70
SECTION 3.15. Enforcement of Due-on-Sale Clauses; Assumption Agreements..................................72
SECTION 3.16. Realization upon Defaulted Mortgage Loans..................................................73
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files............................................75
SECTION 3.18. Servicing Compensation.....................................................................76
SECTION 3.19. Reports to the Trustee; Collection Account Statements......................................76
SECTION 3.20. Statement as to Compliance.................................................................76
SECTION 3.21. Independent Public Accountants' Servicing Report...........................................77
SECTION 3.22. Access to Certain Documentation; Filing of Reports by Trustee..............................77
SECTION 3.23. Title, Management and Disposition of REO Property..........................................78
SECTION 3.24. Obligations of the Servicers in Respect of Prepayment Interest Shortfalls..................81
SECTION 3.25. [Reserved].................................................................................81
SECTION 3.26. Obligations of the Servicers in Respect of Adjustments.....................................81
SECTION 3.27. Solicitations..............................................................................82
ARTICLE IV
FLOW OF FUNDS
SECTION 4.01. Distributions..............................................................................82
SECTION 4.02. [Reserved].................................................................................86
SECTION 4.03. Allocation of Realized Losses..............................................................86
SECTION 4.04. Statements.................................................................................87
SECTION 4.05. Remittance Reports; Advances...............................................................92
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...........................................................................93
SECTION 5.02. Registration of Transfer and Exchange of Certificates......................................94
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates..........................................99
SECTION 5.04. Persons Deemed Owners......................................................................99
SECTION 5.05. Appointment of Paying Agent................................................................99
ARTICLE VI
THE SELLER, THE SERVICERS AND THE DEPOSITOR
SECTION 6.01. Liability of the Seller, the Servicers and the Depositor..................................100
SECTION 6.02. Merger or Consolidation of, or Assumption of the Obligations of, the Seller, a
Servicer or the Depositor.................................................................100
SECTION 6.03. Limitation on Liability of the Servicers and Others.......................................100
SECTION 6.04. Servicers Not to Resign...................................................................101
SECTION 6.05. Delegation of Duties......................................................................102
ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Events of Termination............................................................102
SECTION 7.02. Trustee to Act; Appointment of Successor..................................................104
SECTION 7.03. Waiver of Servicer Events of Termination..................................................105
SECTION 7.04. Notification to Certificateholders........................................................105
SECTION 7.05. Survivability of Servicer Liabilities.....................................................105
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.........................................................................106
SECTION 8.02. Certain Matters Affecting the Trustee.....................................................107
SECTION 8.03. Trustee Not Liable for Certificates, Mortgage Loans or Additional Collateral..............108
SECTION 8.04. Trustee May Own Certificates..............................................................109
SECTION 8.05. Trustee's Fees and Expenses...............................................................109
SECTION 8.06. Eligibility Requirements for Trustee......................................................110
SECTION 8.07. Resignation or Removal of Trustee.........................................................110
SECTION 8.08. Successor Trustee.........................................................................111
SECTION 8.09. Merger or Consolidation of Trustee........................................................111
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.............................................112
SECTION 8.11. Limitation of Liability...................................................................113
SECTION 8.12. Trustee May Enforce Claims Without Possession of Certificates.............................113
SECTION 8.13. Suits for Enforcement.....................................................................114
SECTION 8.14. Waiver of Bond Requirement................................................................114
SECTION 8.15. Waiver of Inventory, Accounting and Appraisal Requirement.................................114
SECTION 8.16. Appointment of Custodians.................................................................114
SECTION 8.17. Put and Call..............................................................................114
ARTICLE IX
REMIC ADMINISTRATION
SECTION 9.01. REMIC Administration......................................................................116
SECTION 9.02. Prohibited Transactions and Activities....................................................118
SECTION 9.03. Indemnification with Respect to Certain Taxes and Loss of REMIC Status....................118
SECTION 9.04. REO Property..............................................................................119
ARTICLE X
TERMINATION
SECTION 10.01. Termination...............................................................................120
SECTION 10.02. Additional Termination Requirements.......................................................121
ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment.................................................................................122
SECTION 12.02. Recordation of Agreement; Counterparts....................................................123
SECTION 12.03. Limitation on Rights of Certificateholders................................................123
SECTION 12.04. Governing Law; Jurisdiction...............................................................124
SECTION 12.05. Notices...................................................................................124
SECTION 12.06. Severability of Provisions................................................................125
SECTION 12.07. Article and Section References............................................................125
SECTION 12.08. Notice to the Rating Agencies.............................................................125
SECTION 12.09. Further Assurances........................................................................126
SECTION 12.10. Benefits of Agreement.....................................................................126
SECTION 12.11. Acts of Certificateholders................................................................126
EXHIBITS AND SCHEDULES:
----------------------
Exhibit A Form of Senior Certificates (other than the Class A-R Certificate) ........................A-1
Exhibit B Form of Class A-R Certificate..............................................................B-1
Exhibit C Form of Subordinate Certificates...........................................................C-1
Exhibit D Form of Class X Certificates...............................................................D-1
Exhibit E Form of Reverse of Certificates............................................................E-1
Exhibit F Request for Release........................................................................F-1
Exhibit G-1 Form of Trustee's Initial Certification..................................................G-1-1
Exhibit G-2 Form of Trustee's Final Certification....................................................G-2-1
Exhibit G-3 Form of Receipt of Mortgage Note.........................................................G-3-1
Exhibit H Form of Lost Note Affidavit................................................................H-1
Exhibit I Form of ERISA Representation...............................................................I-1
Exhibit J Form of Investment Letter..................................................................J-1
Exhibit K Form of Transferor Certificate.............................................................K-1
Exhibit L Form of Class A-R Certificate Transfer Affidavit...........................................L-1
Exhibit M Form of Liquidation Report.................................................................M-1
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of the Seller
</TABLE>
<PAGE>
This Pooling and Servicing Agreement is dated as of July 1, 2000 (the
"Agreement"), among GREENWICH CAPITAL ACCEPTANCE, INC., as depositor (the
"Depositor"), GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., as seller (the
"Seller"), COUNTRYWIDE HOME LOANS, INC., ABN AMRO MORTGAGE GROUP, INC., as
servicer (each, a "Servicer" and together, the "Servicers"), and BANKERS TRUST
COMPANY OF CALIFORNIA, N.A., as trustee (the "Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund created hereunder. The Certificates will consist of
twelve classes of certificates, designated as (i) the Class IA-1 Certificates,
(ii) the Class IA-2 Certificates, (iii) the Class IIA Certificates, (iv) the
Class IIIA Certificates, (v) the Class X Certificates, (vi) the Class A-R
Certificate, (vii) the Class B-1 Certificates, (viii) the Class B-2
Certificates, (ix) the Class B-3 Certificates, (x) the Class B-4 Certificates,
(xi) the Class B-5 Certificates and (xii) the Class B-6 Certificates.
For federal income tax purposes, the Trust Fund (exclusive of the
Additional Collateral and the Senior Put Option) will consist of two REMICs,
the Lower Tier REMIC and the Upper Tier REMIC. The Lower Tier REMIC will
consist of all of the assets constituting the Trust Fund (exclusive of the
Additional Collateral, Senior Call Option and the Senior Put Option) and will
be evidenced by the Lower Tier REMIC Regular Interests (which will be
uncertificated and will represent the "regular interests" in the Lower Tier
REMIC) and the R-1 Interest as the single "residual interest" in the Lower
Tier REMIC. The Trustee will hold the Lower Tier REMIC regular interests.
The Upper Tier REMIC will consist of the REMIC Regular Interests and
will be evidenced by the Regular Certificates (which will represent the
"regular interests" in the Upper Tier REMIC) and the R-2 Interest as the
single "residual interest" in the Upper Tier REMIC. The Class A-R Certificate
will represent beneficial ownership of the R-1 Interest and the R-2 Interest.
All REMIC regular and residual interests created hereby will be retired on or
before the Latest Possible Maturity Date.
The following table irrevocably sets forth the designation, the
Uncertificated Lower Tier REMIC Pass-Through Rate, the initial Uncertificated
Balance and, solely for the purpose of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the Lower
Tier REMIC Regular Interest. None of the Lower Tier REMIC Regular Interests
will be certificated.
<TABLE>
<CAPTION>
Initial Uncertificated Uncertificated Lower Tier Latest Possible
Designation Principal Balance REMIC Pass-Through Rate Maturity Date
----------- ----------------- ------------------------- ---------------
<S> <C> <C> <C>
Class L-IA-1 $74,000,000.00 (1) August 19, 2030
Class L-IA-2 $57,375,000.00 (1) August 19, 2030
Class L-IIA $35,587,000.00 (2) August 19, 2030
Class L-IIIA $40,023,000.00 (3) August 19, 2030
Class L-B1 $4,356,000.00 (4) August 19, 2030
Class L-B2 $1,632,000.00 (4) August 19, 2030
Class L-B3 $1,632,000.00 (4) August 19, 2030
Class L-B4 $1,524,000.00 (4) August 19, 2030
Class L-B5 $762,000.00 (4) August 19, 2030
Class L-B6 $980,041.94 (4) August 19, 2030
Class L-AR $100 (1) August 19, 2030
</TABLE>
(1) Calculated pursuant to the definition of "Net WAC" for Loan Group I.
(2) Calculated pursuant to the definition of "Net WAC" for Loan Group II.
(3) Calculated pursuant to the definition of "Net WAC" for Loan Group III.
(4) The Pass-Through Rate on the Subordinate Certificates will equal the
Subordinate Certificate Pass-Through Rate.
The following table sets forth (or describes) the Lower Tier REMIC
Class designation, Pass-Through Rate, Original Class Certificate Principal
Balance or Original Class Certificate Notional Balance and Assumed Final
Maturity Date for each Class of Certificates comprising the interests in the
Upper Tier REMIC created hereunder each of which, except the Class A-R
Certificate, is hereby designated a REMIC regular interest for federal income
tax purposes:
<PAGE>
<TABLE>
<CAPTION>
Original Class
Certificate Principal Pass-Through Assumed Final
Class Balance Rate Maturity Date
<S> <C> <C> <C>
Class IA-1................ $74,000,000 (1) August 19, 2030
Class IA-2................ $57,375,000 (2) August 19, 2030
Class IIA................. $35,587,000 (3) August 19, 2030
Class IIIA................ $40,023,000 (4) August 19, 2030
Class X................... (5) (5) August 19, 2030
Class A-R................. $ 100 (6) August 19, 2030
Class B-1................. $ 4,356,000 (7) August 19, 2030
Class B-2................. $ 1,632,000 (7) August 19, 2030
Class B-3................. $ 1,632,000 (7) August 19, 2030
Class B-4................. $ 1,524,000 (7) August 19, 2030
Class B-5................. $ 762,000 (7) August 19, 2030
Class B-6................. $986,041.94 (8) August 19, 2030
</TABLE>
(1) Calculated pursuant to the definition of "Class IA-1 Certificate Pass-
Through Rate."
(2) Calculated pursuant to the definition of "Class IA-2 Certificate Pass-
Through Rate."
(3) Calculated pursuant to the definition of "Class IIA Certificate Pass-
Through Rate."
(4) Calculated pursuant to the definition of "Class IIIA Certificate Pass-
Through Rate."
(5) The Class X Certificates will have no principal balance and will bear
interest on the Class Certificate Notional Balance thereof and will be
comprised of the Class X-I Component, Class X-II Component and Class
X-III Component. Each will bear interest at its respective Class X
Component Pass-Through Rate on its respective Class X Component Notional
Balance. Solely for federal income tax purposes: the Class X-I Component
will have a notional balance equal to the principal balance of the
Class L-IA-1 Interest, and will bear interest at rate equal to the Net
WAC of Loan Group I minus the Class IA-1 Certificate Pass-Through Rate;
the Class X-II Component will have a notional balance equal to the
principal balance of the Class L-IA-2 Interest, and will bear interest
at rate equal to the Net WAC of Loan Group I minus the Class IA-2
Certificate Pass-Through Rate; and the Class X-III Component will have a
notional balance equal to the principal balance of the Class L-IIIA
Interest, and will bear interest at rate equal to the Net WAC of Loan
Group III minus the Class IIIA Certificate Pass-Through Rate. The Class
X-I Component, Class X-II Component and Class X-III Component are hereby
designated as REMIC "regular interests" for federal income tax purposes.
(6) Calculated pursuant to the definition of "Class A-R Certificate Pass-
Through Rate."
(7) Calculated pursuant to the definition of "Subordinate Certificate Pass-
Through Rate."
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement or in the Preliminary Statement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article. All calculations of interest described
herein shall be made on the basis of an assumed 360-day year consisting of
twelve 30-day months.
Many of the defined terms listed below may apply to all Loan Groups
and are sometimes used in this Agreement to refer to a particular Loan Group
by the adjectival use of the words "Group I", "Group II" and "Group III".
"1933 Act": The Securities Act of 1933, as amended.
"ABN AMRO": ABN AMRO Mortgage Group, Inc., a Delaware corporation,
and its successors and assigns.
"ABN AMRO Loans": The Mortgage Loans identified in the Mortgage Loan
Schedule as being serviced by ABN AMRO.
"ABN AMRO Originated Loans: The Mortgage Loans identified in the
Mortgage Loan Schedule as having been originated by ABN AMRO.
"Account": Either a Collection Account or the Distribution Account.
"Accrual Period": With respect to each Distribution Date and any
Class of Certificates, the calendar month prior to the month of that
Distribution Date, calculated on the basis of an assumed 360-day year
consisting of twelve 30-day months.
"Additional Collateral": With respect to any Mortgage 1004 Loan, the
marketable securities subject to a security interest pursuant to the related
Mortgage 1004 Pledge Agreement, and with respect to any Parent Power(R)
Mortgage Loan, the related Parent Power(R) Agreement.
"Additional Collateral Mortgage Loan": Each MLCC Loan that is either
a Mortgage 1004 Loan or Parent Power(R) Mortgage Loan as to which the
Additional Collateral is still required to be provided as set forth in the
related Mortgage 1004 Pledge Agreement or Parent Power(R) Agreement.
"Additional Collateral Mortgage Loan Liquidation Shortfall": The
amount, if any, by which the then outstanding principal balance of a defaulted
Additional Collateral Mortgage Loan exceeds the Liquidation Proceeds
(including those from the related Additional Collateral) allocable to
principal realized with respect to such Mortgage Loan.
"Adjusted Mortgage Rate": As to any Mortgage Loan and any date, the
per annum rate equal to the related Mortgage Rate less the Servicing Fee Rate.
"Adjustment Date": With respect to each adjustable rate Mortgage
Loan, each adjustment date on which the related Mortgage Rate changes pursuant
to the related Mortgage Note. The first Adjustment Date following the Cut-off
Date as to each Mortgage Loan is set forth in the Mortgage Loan Schedule.
"Advance": As to any Mortgage Loan or REO Property, any advance made
by a Servicer in respect of any Distribution Date pursuant to Section 4.05
hereof.
"Adverse REMIC Event": As defined in Section 9.01(f) hereof.
"Affiliate": With respect to any Person, any other Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" means the power to direct the
management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise and "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Aggregate Senior Percentage": As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Certificate Principal Balances of the Classes of Senior Certificates
and the denominator of which is the aggregate of the Stated Principal Balances
of all the Mortgage Loans for such Distribution Date.
"Aggregate Subordinate Percentage": As to any Distribution Date, the
difference between 100% and the Aggregate Senior Percentage for such
Distribution Date, but in no event less than zero.
"Applicable Credit Support Percentage": As defined in Section
4.01(e).
"Applicable Regulations": As to any Mortgage Loan, all federal, state
and local laws, statutes, rules and regulations applicable thereto.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to
reflect or record the sale of the Mortgage.
"Assumed Final Maturity Date": As to each Class of Certificates, the
date set forth as such in the Preliminary Statement.
"Available Funds": As to any Distribution Date, the sum of the Loan
Group Available Funds for each Loan Group for that Distribution Date.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"Bankruptcy Coverage Termination Date": The date on which the
Bankruptcy Loss Coverage Amount is reduced to zero.
"Bankruptcy Loss": With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that a Bankruptcy Loss
shall not be deemed a Bankruptcy Loss hereunder so long as the related
Servicer has notified the Trustee in writing that such Servicer is diligently
pursuing any remedies that may exist in connection with the related Mortgage
Loan and either (A) the related Mortgage Loan is not in default with regard to
payments due thereunder or (B) delinquent payments of principal and interest
under the related Mortgage Loan and any related escrow payments in respect of
the Mortgage Loan are being advanced on a current basis by such Servicer, in
either case without giving effect to any Debt Service Reduction or Deficient
Valuation.
"Bankruptcy Loss Coverage Amount": As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by the aggregate amount of Bankruptcy Losses allocated to
the Certificates since the Cut-off Date; provided, however, that the
Bankruptcy Loss Coverage Amount may also be reduced pursuant to a letter from
each Rating Agency to the Trustee to the effect that any such reduction will
not result in a downgrading of the then current ratings assigned by such
Rating Agency to the Classes of Senior Certificates.
"Base Value": With respect to any Mortgage Loan for which Additional
Collateral has been pledged, the value of the Additional Collateral as
determined with respect to that Mortgage Loan in accordance with the Seller's
underwriting guidelines.
"Blanket Mortgage": The mortgage or mortgages encumbering the
Cooperative Property.
"Book-Entry Certificates": Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of
which is reflected on the books of the Depository or on the books of a Person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.02 hereof). On the
Closing Date, all Classes of the Certificates other than the Physical
Certificates shall be Book-Entry Certificates.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking or savings institutions in the State of California, the State of
New York or in the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law or executive order to be closed.
"CDC": CDC Financial Products Inc., a Delaware corporation.
"Cendant": Cendant Mortgage Corp., a New Jersey corporation, and its
successors and assigns.
"Cendant Loans": The Mortgage Loans identified in the Mortgage Loan
Schedule as being serviced by Cendant (pursuant to the Greenwich Servicing
Contract); provided, however, that as of August 1, 2000, the Cendant Loans
shall include the Servicing Transferred Loans.
"Certificate": Any Regular Certificate or Class A-R Certificate.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or non-U.S. Person shall not be a Holder of the
Class A-R Certificate for any purpose hereof.
"Certificate Balance": With respect to each Certificate of a given
Class other than the Class X Certificate and any Distribution Date, the Class
Certificate Principal Balance of such Class multiplied by the applicable
Percentage Interest of such Certificate.
"Certificate Guaranty Surety Bond": With respect to the MLCC Loans
that are Additional Collateral Mortgage Loans, the Limited Purpose Surety Bond
No. AB0039BE dated February 28, 1996 issued by the Surety.
"Certificate Notional Balance": With respect to a Class X Certificate
and any date of determination, the product of (i) the Percentage Interest
represented by such Class X Certificate and (ii) the Class Certificate
Notional Balance.
"Certificate Owner": With respect to each Book-Entry Certificate, any
beneficial owner thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02 hereof.
"Class": Collectively, Certificates that have the same priority of
payment and bear the same class designation and the form of which is identical
except for variation in the Percentage Interest evidenced thereby.
"Class IA-1 Certificate Pass-Through Rate": With respect to the Class
IA-1 Certificates and any Distribution Date on or prior to the Distribution
Date in May 2005, the lesser of 7.52% and the Net WAC for Loan Group I, and
with respect to the Class IA-1 Certificates and each Distribution Date
thereafter, the lesser of (A) the weighted average of (1) the Net WAC for any
Group I Mortgage Loans with respect to which an initial fixed-rate period is
continuing and (2) the weighted average of the indices of all Group I Mortgage
Loans other than those referenced in clause (1) above plus (x) 2.30% in the
case of One-Year CMT Indexed Group I Mortgage Loans or (y) 1.10% in the case
of six-month LIBOR Indexed Group I Mortgage Loans and (B) the Net WAC for Loan
Group I.
"Class IA-1 Put and Call Date": The Distribution Date in May 2005.
"Class IA-1 Put and Call Determination Date": The Distribution Date
in March 2005.
"Class IA-2 Certificate Pass-Through Rate": With respect to the Class
IA-2 Certificates and any Distribution Date on or prior to the Distribution
Date in May 2005, the lesser of 7.47% and the Net WAC for Loan Group I, and
with respect to the Class IA-2 Certificates and each Distribution Date
thereafter, the lesser of (A) the weighted average of (1) the Net WAC for any
Group I Mortgage Loans with respect to which an initial fixed-rate period is
continuing and (2) the weighted average of the indices of all Group I Mortgage
Loans other than those referenced in clause (1) above plus (x) 2.30% in the
case of One-Year CMT Indexed Group I Mortgage Loans or (y) 1.10% in the case
of Six-Month LIBOR Indexed Group I Mortgage Loans and (B) the Net WAC for Loan
Group I.
"Class IA-2 Put and Call Date": The Distribution Date in May 2005.
"Class IA-2 Put and Call Determination Date": The Distribution Date
in March 2005.
"Class IIA Certificate Pass-Through Rate": With respect to the Class
IIA Certificates and any Distribution Date, the Net WAC for Loan Group II;
provided, however, that the Class IIA Certificate Pass-Through Rate for the
first Distribution Date shall be 6.62122%.
"Class IIIA Certificate Pass-Through Rate": With respect to the Class
IIIA Certificates and any Distribution Date on or prior to the Distribution
Date in May 2010, the Net WAC for Loan Group III, and with respect to the
Class IIIA Certificates and each Distribution Date thereafter, the lesser of
(A) the weighted average of (1) the Net WAC for the fixed rate Group III
Mortgage Loans, (2) the Net WAC for any adjustable rate Group III Mortgage
Loans with respect to which an initial fixed-rate period is continuing and (3)
the weighted average of the indices of all adjustable rate Group III Mortgage
Loans other than those referenced in clause (2) above plus (x) 2.30% in the
case of One-Year CMT Indexed Group III Mortgage Loans or (y) 1.10% in the case
of Six-Month LIBOR Indexed Group III Mortgage Loans and (B) the Net WAC for
Loan Group III; provided, however, that the Class IIIA Certificate
Pass-Through Rate for the first Distribution Date shall be 7.88063%.
"Class IIIA Put and Call Date": The Distribution Date in May 2010.
"Class IIIA Put and Call Determination Date": The Distribution Date
in March 2010.
"Class A-R Certificate": The Class A-R Certificate as designated on
the face thereof executed by the Trustee, and authenticated and delivered by
the Certificate Registrar, substantially in the form annexed hereto as Exhibit
C, and evidencing the ownership of the sole class of "residual interests" in
the REMIC.
"Class A-R Certificate Pass-Through Rate": With respect to the Class
A-R Certificate and any Distribution Date, the Net WAC of Loan Group I for
such Distribution Date provided, however, that for the first Distribution
Date, the Class A-R Certificate Pass-Through Rate shall be 7.97512%.
"Class Certificate Principal Balance": With respect to any Class of
Certificates other than the Class X Certificates and any Distribution Date,
the Class Certificate Principal Balance thereof on the Closing Date (the
"Original Class Certificate Principal Balance") as reduced by the sum of (x)
all amounts actually distributed in respect of principal of that Class on all
prior Distribution Dates and (y) all Realized Losses, Bankruptcy Losses,
Special Hazard Losses, Fraud Losses and Excess Losses, if any, actually
allocated to that Class on all prior Distribution Dates.
"Class Subordination Percentage": With respect to each Class of
Subordinate Certificates and any Distribution Date, the percentage equivalent
of a fraction the numerator of which is the Class Certificate Principal
Balance of such Class immediately before such Distribution Date and the
denominator of which is the aggregate of the Class Certificate Principal
Balances of all Classes of Certificates immediately before such Distribution
Date.
"Class X Certificate": Any one of the Class X Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B, executed, authenticated and delivered by the Trustee.
"Class X Certificate Pass-Through Rate": With respect to the Class X
Certificates and any Distribution Date, the Net WAC of all of the Mortgage
Loans minus the weighted average of the Pass-Through Rates of all Classes of
Certificates (other than the Class X Certificates), weighted on the basis of
their respective Class Certificate Principal Balances; provided, however, that
the Class X Certificate Pass-Through Rate for the first Distribution Date
shall be 0.28758%.
"Class Certificate Notional Balance": As of any Distribution Date and
with respect to the Class X Certificates, an amount equal to the sum of the
Class X-I Component Notional Balance, the Class X-II Component Notional
Balance and the Class X-III Component Notional Balance immediately preceding
such Distribution Date.
"Class X Component": Any of the Class X-I Component, Class X-II
Component or Class X-III Component, as the context may require.
"Class X-I Component": A non-separable payment component of the Class
X Certificates, which component is entitled to 100% of the interest accruals
on the Class X-I Component Notional Balance. Ownership of a Class X
Certificate represents ownership of a Percentage Interest in the Class X-I
Component equal to the Percentage Interest of such Class X Certificate.
"Class X-II Component": A non-separable payment component of the
Class X Certificates, which component is entitled to 100% of the interest
accruals on the Class X-II Component Notional Balance. Ownership of a Class X
Certificate represents ownership of a Percentage Interest in the Class X-II
Component equal to the Percentage Interest of such Class X Certificate.
"Class X-III Component": A non-separable payment component of the
Class X Certificates, which component is entitled to 100% of the interest
accruals on the Class X-III Component Notional Balance. Ownership of a Class X
Certificate represents ownership of a Percentage Interest in the Class X-III
Component equal to the Percentage Interest of such Class X Certificate.
"Class X Component Notional Balance": Any of the Class X-I Component
Notional Balance, Class X-II Component Notional Balance or Class X-III
Component Notional Balance, as the context may require.
"Class X-I Component Notional Balance": With respect to any
Distribution Date, an amount equal to the sum of the Class Certificate
Principal Balances of the Class IA-1, Class IA-2, and Class A-R Certificates
and the Component Principal Balances of each Subordinate Component for Loan
Group I, in each case as of such Distribution Date.
"Class X-II Component Notional Balance": With respect to any
Distribution Date, an amount equal to the Class Certificate Principal Balance
of the Class IIA Certificates and the Component Principal Balances of each
Subordinate Component for Loan Group II, in each case as of such Distribution
Date.
"Class X-III Component Notional Balance": With respect to any
Distribution Date, an amount equal to the Class Certificate Principal Balance
of the Class IIIA Certificates and the Component Principal Balances of each
Subordinate Component for Loan Group III, in each case as of such Distribution
Date.
"Class X-I Component Pass-Through Rate": With respect to the Class
X-I Component, the Net WAC of Loan Group I minus the weighted average of the
Class IA-1 Certificate Pass-Through Rate, Class IA-2 Certificate Pass-Through
Rate, Class A-R Certificate Pass-Through Rate and the Subordinated Loan Group
Pass-Through Rate for Loan Group I; provided, however, that the Class X-I
Component Pass-Through Rate for the first Distribution Date shall be 0.45309%.
"Class X-II Component Pass-Through Rate": With respect to the Class
X-II Component, the Net WAC of Loan Group II minus the weighted average of the
Class IIA Certificate Pass-Through Rate and the Subordinated Loan Group
Pass-Through Rate for Loan Group II; provided, however, that the Class X-II
Component Pass-Through Rate for the first Distribution Date shall be 0.00000%.
"Class X-III Component Pass-Through Rate": With respect to the Class
X-III Component, the Net WAC of Loan Group III minus the weighted average of
the Class IIIA Certificate Pass-Through Rate and the Subordinated Loan Group
Pass-Through Rate for Loan Group III; provided, however, that the Class X-III
Component Pass-Through Rate for the first Distribution Date shall be 0.00000%.
"Close of Business": As used herein, with respect to any Business Day
and location, 5:00 p.m. at such location.
"Closing Date": July 27, 2000.
"Code": The Internal Revenue Code of 1986 as it may be amended from
time to time.
"Collection Account": The account or accounts created and maintained
by a Servicer pursuant to Section 3.10(a), which shall be entitled
"[Servicer's name], as Servicer for Bankers Trust Company of California, N.A.,
as Trustee, in trust for registered Holders of HarborView Mortgage Loan Trust
2000-1, Mortgage Loan Pass-Through Certificates, Series 2000-1", and which
must be an Eligible Account.
"Commission": The Securities and Exchange Commission.
"Compensating Interest": As defined in Section 3.24 hereof.
"Coop Shares": Shares issued by a Cooperative Corporation.
"Cooperative Corporation": The entity that holds title to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as a Cooperative Housing Corporation under Section 216 of the Code.
"Cooperative Loan": Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
"Cooperative Property": The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
"Cooperative Unit": A single family dwelling located in a Cooperative
Property.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at 1761 East St. Andrew Place,
Santa Ana, CA 92705, Attention: HarborView 2000-1, or at such other address as
the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, each Servicer and the Seller.
"Countrywide": Countrywide Home Loans, Inc., a New York corporation,
and its successors and assigns.
"Countrywide Loans": The Mortgage Loans identified in the Mortgage
Loan Schedule as being serviced by Countrywide.
"Countrywide Originated Loans: The Mortgage Loans identified in the
Mortgage Loan Schedule as having been originated by Countrywide.
"Cut-off Date": With respect to any Mortgage Loan other than a
Qualified Substitute Mortgage Loan, the Close of Business on July 1, 2000.
With respect to any Qualified Substitute Mortgage Loan, the date designated as
such on the Mortgage Loan Schedule (as amended).
"Cut-off Date Aggregate Principal Balance": The aggregate of the
Cut-off Date Principal Balances of the Mortgage Loans in each Loan Group.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the unpaid principal balance thereof as of the Cut-off Date (or as of the
applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan).
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for that Mortgage Loan by a court
of competent jurisdiction in a proceeding under the Bankruptcy Code, unless
the reduction results from a Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(c) hereof.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced
by one or more Qualified Substitute Mortgage Loans.
"Delinquent": Any Mortgage Loan with respect to which the Monthly
Payment due on a Due Date is not made.
"Depositor": Greenwich Capital Acceptance, Inc., a Delaware
corporation, or any successor in interest.
"Depository": The initial Depository shall be The Depository Trust
Company, whose nominee is Cede & Co., or any other organization registered as
a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository shall initially be the registered Holder of
the Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
"Depository Participant": A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
sixth Business Day prior to such Distribution Date.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation
of such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by a REMIC other than through an
Independent Contractor; provided, however, that the Trustee (or the related
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the related Servicer, on behalf of the Trustee,
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Disqualified Organization": A "disqualified organization" under
Section 860E of the Code, which as of the Closing Date is any of:
(i) the United States, any state or political subdivision
thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing,
(ii) any organization (other than a cooperative described in
Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax
imposed by Section 511 of the Code,
(iii) any organization described in Section 1381(a)(2)(C) of
the Code,
(iv) an "electing large partnership" within the meaning of
Section 775 of the Code or
(v) any other Person so designated by the Trustee based upon an
Opinion of Counsel provided to the Trustee by nationally recognized
counsel acceptable to the Trustee that the holding of an ownership
interest in the Class A-R Certificate by such Person may cause the
Trust Fund or any Person having an ownership interest in any Class
of Certificates (other than such Person) to incur liability for any
federal tax imposed under the Code that would not otherwise be
imposed but for the transfer of an ownership interest in the Class
A-R Certificate to such Person.
A corporation will not be treated as an instrumentality of the United
States or of any state or political subdivision thereof, if all of its
activities are subject to tax and, a majority of its board of directors is not
selected by a governmental unit. The term "United States", "state" and
"international organizations" shall have the meanings set forth in Section
7701 of the Code.
"Distribution Account": The trust account or accounts created and
maintained by the Trustee pursuant to Section 3.10(b) hereof which shall be
entitled "Distribution Account, Bankers Trust Company of California, N.A., as
Trustee, in trust for the registered Certificateholders of HarborView Mortgage
Loan Trust 2000-1, Mortgage Loan Pass-Through Certificates, Series 2000-1" and
which must be an Eligible Account.
"Distribution Date": The business day immediately succeeding the
related Servicer Remittance Date, commencing in August 2000.
"Distribution Date Statement": As defined in Section 4.04(a) hereof.
"Due Date": With respect to each Mortgage Loan and any Distribution
Date, the first day of the calendar month in which that Distribution Date
occurs on which the Monthly Payment for such Mortgage Loan was due, exclusive
of any days of grace.
"Due Period": With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month in which that
Distribution Date occurs and ending on the first day of the month in which
that Distribution Date occurs.
"Eligible Account": Any of
(i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term
unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a
holding company, the short-term unsecured debt obligations of such
holding company) are rated A-1 or its equivalent by each of the
Rating Agencies and F-1 by Fitch at the time any amounts are held on
deposit therein;
(ii) an account or accounts the deposits in which are fully
insured by the FDIC (to the limits established by it), the uninsured
deposits in which account are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to
the Rating Agencies, the Certificateholders will have a claim with
respect to the funds in the account or a perfected first priority
security interest against the collateral (which shall be limited to
Permitted Investments) securing those funds that is superior to
claims of any other depositors or creditors of the depository
institution with which such account is maintained;
(iii) a trust account or accounts maintained with the trust
department of a federal or state chartered depository institution,
national banking association or trust company acting in its
fiduciary capacity; or
(iv) an account otherwise acceptable to the Rating Agencies
without reduction or withdrawal of its then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the
Trustee. Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA-Restricted Certificates": The Class A-R Certificate and the
Subordinate Certificates.
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, fire and hazard insurance premiums and other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to any Mortgage Loan.
"Estate in Real Property": A fee simple estate in a parcel of real
property.
"Excess Loss": With respect to the Mortgage Loans, the amount of any
(i) Fraud Loss realized after the Fraud Loss Coverage Termination Date, (ii)
Special Hazard Loss realized after the Special Hazard Coverage Termination
Date or (iii) Bankruptcy Loss realized after the Bankruptcy Coverage
Termination Date.
"Excess Servicing Fee": As to each Loan Group, any Servicer and any
Distribution Date, any Servicing Fee for such Servicer for such Loan Group and
Distribution Date remaining after application to the Prepayment Interest
Shortfall for such Loan Group and the related Prepayment Period.
"Expense Fee Rate": The per annum rate at which the Expense Fee
accrues for a Mortgage Loan, calculated on the Principal Balance of such
Mortgage Loan.
"Expense Fee" :The sum of (x) the Servicing Fee with respect to the
applicable Servicer for the related Mortgage Loan and (y) the Trustee Fee for
the related Mortgage Loan.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"Fannie Mae": The Federal National Mortgage Association or any
successor thereto.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Seller or by the related Servicer pursuant to or as
contemplated by Section 2.03 or 10.01 hereof), a determination made by such
Servicer (and with respect to which written confirmation by a Servicing
Officer of such Servicer shall have been received by the Trustee) that all
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries
which such Servicer, in its reasonable good faith judgment, expects to be
finally recoverable in respect thereof have been so recovered. Each Servicer
shall maintain records, prepared by a Servicing Officer of such Servicer, of
each Final Recovery Determination made by such Servicer.
"Fitch": Fitch IBCA, Inc. and its successors.
"Foreclosure Price": The amount reasonably expected to be received
from the sale of a Mortgaged Property net of any expenses associated with
foreclosure proceedings.
"Fraud Loan": A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
"Fraud Losses": Realized Losses on any Mortgage Loans sustained by
reason of a default arising from fraud, dishonesty or misrepresentation in
connection with that Mortgage Loan.
"Fraud Loss Coverage Amount": As of the Closing Date, $4,357,603
subject to reduction from time to time by the amount of Fraud Losses allocated
to the Certificates. In addition, on each anniversary of the Cut-off Date, the
Fraud Loss Coverage Amount will be reduced as follows: (a) on the first,
second, third and fourth anniversaries of the Cut-off Date, to an amount equal
to the lesser of (i) 1.00% of the then current Mortgage Pool Balance and (ii)
the excess of the Fraud Loss Coverage Amount as of the preceding anniversary
of the Cut-off Date (or, in the case of the first anniversary, as of the
Cut-off Date) over the cumulative amount of Fraud Losses allocated to the
Certificates since such preceding anniversary or the Cut-off Date, as the case
may be; and (b) on the fifth anniversary of the Cut-off Date, to zero;
provided, however, that the Fraud Loss Coverage Amount may also be reduced
pursuant to a letter from each Rating Agency to the Trustee to the effect that
any such reduction will not result in the downgrading of the then current
ratings assigned by such Rating Agency to the Classes of Senior Certificates.
"Fraud Loss Coverage Termination Date": The date on which the Fraud
Loss Coverage Amount is reduced to zero.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor thereto.
"Greenwich Servicing Contract": That certain Master Servicing
Agreement, dated as of May 13, 1997, as amended on December 30, 1998, by and
between the Seller and MLCC, pursuant to which Cendant shall service the
Cendant Loans and MLCC shall service the MLCC Loans; provided, however, that
the Trustee shall be recognized as the "Owner" as that term is defined in the
Greenwich Servicing Contract.
"Gross Margin": With respect to each adjustable rate Mortgage Loan,
the fixed percentage set forth in the related Mortgage Note that is added to
the applicable Index on each Adjustment Date in accordance with the terms of
the related Mortgage Note used to determine the Mortgage Rate for such
Mortgage Loan.
"Group I Mortgage Loan": A Mortgage Loan that is identified as such
on the Mortgage Loan Schedule.
"Group II Mortgage Loan": A Mortgage Loan that is identified as such
on the Mortgage Loan Schedule.
"Group III Mortgage Loan": A Mortgage Loan that is identified as such
on the Mortgage Loan Schedule.
"Independent": When used with respect to any specified Person, any
such Person who (a) is in fact independent of the Depositor, each Servicer and
their respective Affiliates, (b) does not have any direct financial interest
in or any material indirect financial interest in the Depositor or any
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or any Servicer or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent
of the Depositor or a Servicer or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor or such Servicer or any Affiliate thereof, as the case may
be.
"Independent Contractor": Either (i) any Person (other than the
Servicer) that would be an "independent contractor" with respect to the REMIC
within the meaning of Section 856(d)(3) of the Code if the REMIC were a real
estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as the REMIC
does not receive or derive any income from such Person and provided that the
relationship between such Person and the REMIC is at arm's length, all within
the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other
Person (including the Servicer) if the Trustee has received an Opinion of
Counsel to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will
not cause such REO Property to cease to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without
regard to the exception applicable for purposes of Section 860D(a) of the
Code), or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property.
"Index": With respect to each adjustable rate Mortgage Loan and each
Adjustment Date, the index specified in the related Mortgage Note.
"Initial Bankruptcy Coverage Amount": $100,000.
"Initial Certificate Balance": With respect to any Certificate other
than a Class X Certificate, the amount designated "Initial Certificate
Balance" on the face thereof.
"Initial Certificate Notional Balance": With respect to any Class X
Certificate, the amount designated "Initial Certificate Notional Balance" on
the face thereof.
"Initial Loan Group I Balance: $138,287,755.35.
"Initial Loan Group II Balance: $37,460,235.21.
"Initial Loan Group III Balance: $42,129,151.38.
"Insurance Proceeds": Proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property or
released to the related Mortgagor in accordance with the procedures that the
applicable Servicer would follow in servicing mortgage loans held for its own
account, subject to the terms and conditions of the related Mortgage Note and
Mortgage.
"Interest Distributable Amount": With respect to any Distribution
Date and each Class of Certificates (or, in the case of the Class X
Certificates, each Class X Component), the sum of (i) the Monthly Interest
Distributable Amount for that Class (or, in the case of the Class X
Certificates, each Class X Component) and (ii) the Unpaid Interest Shortfall
Amount for that Class (or, in the case of the Class X Certificates, each Class
X Component).
"Late Collections": With respect to any Mortgage Loan, all amounts
received subsequent to the Determination Date immediately following any
related Due Period, whether as late payments of Monthly Payments or as
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent on a contractual basis for such Due Period and not previously
recovered.
"Latest Possible Maturity Date": As determined as of the Cut-off
Date, the Distribution Date following the fourth anniversary of the scheduled
maturity date of the Mortgage Loan having the latest scheduled maturity date
as of the Cut-off Date.
"Liquidated Mortgage Loan": As to any Distribution Date, any Mortgage
Loan in respect of which the related Servicer has determined, in accordance
with the servicing procedures specified herein, as of the end of the related
Prepayment Period, that all Liquidation Proceeds that it expects to recover
with respect to the liquidation of such Mortgage Loan or disposition of the
related REO Property have been recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such
Mortgage Loan is removed from the Trust Fund by reason of its being purchased,
sold or replaced pursuant to or as contemplated by Section 2.03 or Section
10.01. With respect to any REO Property, either of the following events: (i) a
Final Recovery Determination is made as to such REO Property; or (ii) such REO
Property is removed from the Trust Fund by reason of its being sold or
purchased pursuant to Section 3.23 or Section 10.01 hereof.
"Liquidation Proceeds": The amount (other than amounts received in
respect of the rental of any REO Property prior to REO Disposition) received
by the related Servicer in connection with (i) the taking of all or a part of
a Mortgaged Property by exercise of the power of eminent domain or
condemnation, (ii) the liquidation of a defaulted Mortgage Loan by means of a
trustee's sale, foreclosure sale or otherwise, (iii) the liquidation of any
related Additional Collateral, or (iv) the repurchase, substitution or sale of
a Mortgage Loan or an REO Property pursuant to or as contemplated by Section
2.03, Section 3.23 or Section 10.01 hereof; provided that, with respect to a
defaulted MLCC Loan that is also an Additional Collateral Mortgage Loan,
"Liquidation Proceeds" shall also include the amount realized on the related
Additional Collateral with respect to such Mortgage Loan.
"Liquidation Report": A report to be provided by the applicable
Servicer upon request by the Trustee substantially in the form attached hereto
in Exhibit M.
"Loan Group Available Funds": With respect to each Loan Group and any
Distribution Date, an amount equal to (i) the sum of (a) the aggregate of the
related Monthly Payments received on or prior to the related Determination
Date (excluding Monthly Payments due in future Due Periods but received by the
related Determination Date), (b) Liquidation Proceeds, Insurance Proceeds,
Principal Prepayments and other unscheduled recoveries of principal and
interest in respect of the Mortgage Loans in that Loan Group during the
related Prepayment Period, (c) the aggregate of any amounts received in
respect of a related REO Property withdrawn from any REO Account and deposited
in the applicable Collection Accounts for such Distribution Date, (d) the
aggregate of any amounts deposited in the applicable Collection Accounts by
the applicable Servicers in respect of related Prepayment Interest Shortfalls
for that Distribution Date, (e) the aggregate of the Purchase Prices and
Substitution Adjustments deposited in the applicable Collection Accounts
during the related Prepayment Period, (f) the aggregate of any related
Advances made by the applicable Servicers for that Distribution Date, (g) the
aggregate of any related advances made by the Trustee for that Distribution
Date pursuant to Section 7.02 hereof and (h) the Termination Price allocable
to such Loan Group on the Distribution Date on which the Trust is terminated;
minus (ii) the sum of (x) related amounts reimbursable or payable to the
applicable Servicers pursuant to Section 3.11(a) hereof, (y) the amount
payable to the Trustee pursuant to Section 8.05 allocable to such Loan Group
and (z) related amounts deposited in the applicable Collection Accounts or the
Distribution Account, as the case may be, in error; plus (iii) the amount of
any Transfer Payment Received for that Distribution Date; minus (iv) the
amount of any Transfer Payment Made for that Distribution Date.
"Loan-to-Collateral Value Ratio": With respect to each Mortgage Loan
and any date of determination, a fraction, expressed as a percentage, the
numerator of which is the Principal Balance of the Mortgage Loan at such date
of determination less the Base Value of any related Additional Collateral and
the denominator of which is the Value of the related Mortgaged Property.
"Loan-to-Value Ratio": With respect to each Mortgage Loan and any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the Principal Balance of the Mortgage Loan at such date of
determination and the denominator of which is the Value of the related
Mortgaged Property.
"Loan Group": Any of Loan Group I, Loan Group II or Loan Group III,
as the context requires.
"Loan Group Balance": As to each Loan Group and any Distribution
Date, the aggregate of the Principal Balances, as of the Due Date in the month
preceding the month in which such Distribution Date occurs, of the Mortgage
Loans in such Loan Group that were Outstanding Mortgage Loans on that Due
Date.
"Loan Group I": At any time, the Group I Mortgage Loans in the
aggregate and any REO Properties acquired in respect thereof.
"Loan Group II": At any time, the Group II Mortgage Loans in the
aggregate and any REO Properties acquired in respect thereof.
"Loan Group III": At any time, the Group III Mortgage Loans in the
aggregate and any REO Properties acquired in respect thereof.
"Losses": As defined in Section 9.03 hereof.
"Lost Note Affidavit": With respect to any Mortgage Loan as to which
the original Mortgage Note has been permanently lost or destroyed and has not
been replaced, an affidavit from the Seller certifying that the original
Mortgage Note has been lost, misplaced or destroyed (together with a copy of
the related Mortgage Note and indemnifying the Trust against any loss, cost or
liability resulting from the failure to deliver the original Mortgage Note) in
the form of Exhibit H hereto.
"Lower Tier REMIC": As defined in the Preliminary Statement.
"Lower Tier REMIC Regular Interest": As defined in the Preliminary
Statement.
"Maintenance": With respect to any Cooperative Unit, the rent or fee
paid by the Mortgagor to the Cooperative Corporation pursuant to the
Proprietary Lease.
"Majority Certificateholders": The Holders of Certificates evidencing
at least 51% of the Voting Rights.
"Maximum Mortgage Rate": With respect to each adjustable rate
Mortgage Loan, the percentage set forth in the related Mortgage Note as the
maximum Mortgage Rate thereunder.
"MERS": Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
"MERS Mortgage Loan": Any Mortgage Loan registered with MERS on the
MERS System.
"MERS 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 percentage set forth in the related Mortgage Note as the
minimum Mortgage Rate thereunder.
"MLCC": Merrill Lynch Credit Corporation, a Delaware corporation, and
its successors and assigns.
"MLCC Loans": The Mortgage Loans identified in the Mortgage Loan
Schedule as being serviced by MLCC (pursuant to the Greenwich Servicing
Contract); provided, however, that as of August 1, 2000, the MLCC Loans shall
not include the Servicing Transferred Loans.
"MOM Loan": Any Mortgage Loan as to which MERS is acting as
mortgagee, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns.
"Monthly Interest Distributable Amount": With respect to each Class
of Certificates (or, in the case of the Class X Certificates, each Class X
Component) and for any Distribution Date, the amount of interest accrued
during the related Accrual Period at the related Pass-Through Rate on the
Class Certificate Principal Balance or Class Certificate Notional Balance (or
Component Notional Balance) of that Class immediately prior to that
Distribution Date.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and interest on such Mortgage Loan that is
payable by the related Mortgagor from time to time under the related Mortgage
Note, determined: (a) after giving effect to (i) any Deficient Valuation
and/or Debt Service Reduction with respect to such Mortgage Loan and (ii) any
reduction in the amount of interest collectible from the related Mortgagor
pursuant to the Relief Act; (b) without giving effect to any extension granted
or agreed to by the related Servicer pursuant to Section 3.01 hereof; and (c)
on the assumption that all other amounts, if any, due under such Mortgage Loan
are paid when due.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on, or first priority security interest in, a Mortgaged Property
securing a Mortgage Note.
"Mortgage 1004 Loan": A MLCC Loan having at the time of origination a
Loan-to-Value Ratio generally in excess of MLCC's maximum acceptable
Loan-to-Value Ratio for such Mortgage Loan, which Mortgage Loan is secured by
additional collateral in the form of a security interest in marketable
securities having a market value, as of the date of such loan's origination,
at least equal to the Original Additional Collateral Requirement.
"Mortgage 1004 Pledge Agreement": With respect to each Mortgage 1004
Loan, the Mortgage 1004 Pledge Agreement for Securities Account between the
Mortgagor under such Mortgage 1004 Loan and MLCC, pursuant to which such
Mortgagor granted a security interest in various investment securities.
"Mortgage File": The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03(d) hereof as from time to
time held as a part of the Trust Fund, the Mortgage Loans so held being
identified in the Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The Agreement between the Seller
and the Depositor, dated as of July 1, 2000, regarding the transfer of the
Mortgage Loans by the Seller to or at the direction of the Depositor.
"Mortgage Loan Schedule": As of any date, the list of Mortgage Loans
included in the Trust Fund on such date, separately identifying the Group I
Mortgage Loans, Group II Mortgage Loans and Group III Mortgage Loans, attached
hereto as Schedule I. The Mortgage Loan Schedule shall be prepared by the
Seller and shall set forth the following information with respect to each
Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property including
the state and five-digit ZIP code;
(iv) a code indicating whether the Mortgaged Property was
represented by the borrower, at the time of origination,
as being owner-occupied;
(v) a code indicating whether the Residential Dwelling
constituting the Mortgaged Property is (a) a detached
single family dwelling, (b) a dwelling in a PUD, (c) a
condominium unit, (d) a two- to four-unit residential
property, (e) a Cooperative Unit, (f) a townhouse or (g)
other type of Residential Dwelling;
(vi) if the related Mortgage Note permits the borrower to make
Monthly Payments of interest only for a specified period
of time, (a) the original number of such specified Monthly
Payments and (b) the remaining number of such Monthly
Payments as of the Cut-off Date;
(vii) the original months to maturity;
(viii) the stated remaining months to maturity from the Cut-off
Date based on the original amortization schedule;
(ix) the Loan-to-Value Ratio at origination;
(x) the value of any Additional Collateral as of the Close of
Business on the Cut-off Date;
(xi) the Loan-to-Collateral Value Ratio at origination;
(xii) the Mortgage Rate in effect immediately following the
Cut-off Date;
(xiii) the date on which the first Monthly Payment is or was
due on the Mortgage Loan;
(xiv) the stated maturity date;
(xv) the Servicing Fee Rate;
(xvi) [reserved]
(xvii) the last Due Date on which a Monthly Payment was
actually applied to the unpaid Stated Principal Balance;
(xviii) the original principal amount of the Mortgage Loan;
(xix) the Stated Principal Balance of the Mortgage Loan on the
Cut-off Date and a code indicating the purpose of the
Mortgage Loan (i.e., purchase financing, rate/term
refinancing, cash-out refinancing);
(xx) the Index and Gross Margin specified in related Mortgage
Note;
(xxi) the next Adjustment Date, if applicable;
(xxii) the maximum Mortgage Rate, if applicable;
(xxiii) the Value of the Mortgaged Property;
(xxiv) the sale price of the Mortgaged Property, if applicable;
(xxv) the product code;
(xxvi) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan;
(xxvii) whether such Mortgage Loan was originated by MLCC, ABN
AMRO, Countrywide or PHH; and
(xxviii) whether such Mortgage Loan is a Cendant Loan, a
Countrywide Loan, an ABN AMRO Loan or a MLCC Loan (and in
the case of any MLCC Loan, whether such loan is a
Servicing Transferred Loan).
The Mortgage Loan Schedule, as in effect from time to time, shall set
forth the following information, as of the Cut-off Date with respect to the
Mortgage Loans sold by the Seller in the aggregate and by Loan Group: (1) the
number of Mortgage Loans; (2) the current Principal Balance of the Mortgage
Loans; (3) the weighted average Mortgage Rate of the Mortgage Loans; and (4)
the weighted average maturity of the Mortgage Loans. The Mortgage Loan
Schedule shall be amended from time to time by the Seller in accordance with
the provisions of this Agreement.
"Mortgage Note": The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool Balance": As of any date, the aggregate of the
Principal Balances of all the Mortgage Loans as of that date.
"Mortgage Rate": With respect to each Mortgage Loan, the annual rate
at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note, which rate, with
respect to any adjustable Mortgage Rate (A) as of any date of determination
until the first Adjustment Date following the Cut-off Date shall be the rate
set forth in the Mortgage Loan Schedule as the Mortgage Rate in effect
immediately following the Cut-off Date and (B) as of any date of determination
thereafter shall be the rate as adjusted on the most recent Adjustment Date,
to equal the sum, rounded to the next highest 0.125% (as provided in the
Mortgage Note), of the applicable Index, determined as set forth in the
related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the annual rate determined in accordance with the immediately preceding
sentence as of the date such Mortgage Loan became an REO Property.
"Mortgaged Property": The underlying property securing a Mortgage
Loan, including any REO Property, consisting of (x) an Estate in Real Property
improved by a Residential Dwelling or (y) in the case of a Cooperative Loan,
the related Coop Shares and Proprietary Lease.
"Mortgagor": The obligor on a Mortgage Note.
"Net Liquidation Proceeds": With respect to any Liquidated Mortgage
Loan or any other disposition of related Mortgaged Property (including REO
Property) the related Liquidation Proceeds net of Advances, related Servicing
Advances, related Servicing Fees and any other accrued and unpaid servicing
fees received and retained in connection with the liquidation of such Mortgage
Loan or Mortgaged Property.
"Net Loan Rate": With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the then applicable Mortgage Rate for such Mortgage Loan minus the
Servicing Fee Rate.
"Net Prepayment Interest Shortfalls": As to each Loan Group and any
Distribution Date, the amount by which the aggregate of the Prepayment
Interest Shortfalls for such Loan Group during the related Prepayment Period
exceeds an amount equal to the aggregate Servicing Fee for such Loan Group for
such Distribution Date before reduction of the Servicing Fee in respect of
such Prepayment Interest Shortfalls.
"Net WAC": With respect to each Loan Group and any Distribution Date,
the average of the difference between (x) the Mortgage Rates of the Mortgage
Loans in such Loan Group as of the first day of the month preceding the month
of that Distribution Date (or, in the case of the first Distribution Date, the
Cut-off Date), and (y) the related Expense Fee Rates, weighted on the basis of
the related Principal Balances as of the first day of the month preceding the
month in which such Distribution Date occurs (or, in the case of the first
Distribution Date, as of the Cut-off Date).
"New Lease": Any lease of REO Property entered into on behalf of the
Trust, including any lease renewed or extended on behalf of the Trust if the
Trust has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Advance or Servicing Advance previously
made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the Servicer, will not ultimately be recoverable from
Late Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage
Loan or REO Property as provided herein.
"OC Condition": As to each Loan Group and any Distribution Date prior
to the Senior Credit Support Depletion Date, an "OC Condition" shall exist if
the aggregate Class Certificate Principal Balance of the Senior Certificates
(other than the Class X Certificates) in the related Senior Certificate Group
is reduced to zero and either (i) if such Distribution Date is prior to the
Distribution Date in December 2003 and the aggregate Class Certificate
Principal Balance of the Subordinate Certificates is less than 50% of the
Original Subordinated Principal Balance or (ii) if such Distribution Date is
on or after the Distribution Date in December 2003 and the aggregate Class
Certificate Principal Balance of the Subordinate Certificates is less than 25%
of the Original Subordinated Principal Balance.
"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a vice president
(however denominated), and by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of a Servicer, the Seller or the
Depositor, as applicable.
"One-Year CMT": The weekly average yield on United States Treasury
securities adjusted to a constant maturity of one year as published by the
Federal Reserve Board in Statistical Release H.15(519).
"One-Year CMT Indexed": Indicates a Mortgage Loan that has an
adjustable Mortgage Rate calculated on the basis of the One-Year CMT Index.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be a salaried counsel for the Depositor or a Servicer, acceptable
to the Trustee, except that any opinion of counsel relating to (a) the
qualification of the REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
"Optional Termination Date": The first Distribution Date on which the
Class A-R Certificateholder may opt to terminate this Agreement pursuant to
Section 10.01 hereof.
"Original Additional Collateral Requirement": With respect to any
Additional Collateral Mortgage Loan, an amount equal to the Additional
Collateral required by MLCC at the time of the origination of such Additional
Collateral Mortgage Loan in order to achieve a Loan-to-Collateral Value Ratio
for such Additional Collateral Mortgage Loan, generally equal to seventy
percent (70%); for purposes of the Required Surety Payment, in no event shall
the Original Additional Collateral Requirement for an Additional Collateral
Mortgage Loan exceed thirty percent (30%) of its original principal balance.
"Original Applicable Credit Support Percentage": With respect to each
Class of Subordinate Certificates, the corresponding percentage set forth
below opposite its Class designation:
Class B-1 5.00%
Class B-2 3.00%
Class B-3 2.25%
Class B-4 1.50%
Class B-5 0.80%
Class B-6 0.45%
"Original Class Certificate Principal Balance": With respect to each
Class of Certificates (other than the Class X Certificates), the corresponding
amount set forth opposite the Class designation of such Class in the
Preliminary Statement.
"Original Class Certificate Notional Balance" With respect to the
Class X Certificates, $217,877,141.
"Original Subordinate Component Balance": With respect to each
Subordinate Component, the amount set forth opposite its Subordinate Component
designation:
B-1-I $ 2,764,776.00
B-1-II $ 748,939.00
B-1-III $ 842,285.00
B-2-I $ 1,035,839.00
B-2-II $ 280,594.00
B-2-III $ 315,567.00
B-3-I $ 1,035,839.00
B-3-II $ 280,594.00
B-3-III $ 315,567.00
B-4-I $ 967,290.00
B-4-II $ 262,026.00
B-4-III $ 294,684.00
B-5-I $ 483,645.00
B-5-II $ 131,013.00
B-5-III $ 147,342.00
B-6-I $ 625,846.00
B-6-II $ 169,533.00
B-6-III $ 190,662.94
"Original Subordinated Principal Balance": The aggregate of the
Original Class Certificate Principal Balances of the Classes of Subordinate
Certificates.
"Outstanding Mortgage Loan": As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero, that was not the subject of a
Prepayment in Full prior to such Due Date and that did not become a Liquidated
Mortgage Loan prior to such Due Date.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
"Parent Power(R) Agreement": With respect to each MLCC Loan that is a
Parent Power(R) Mortgage Loan, a Parent Power(R) Guaranty and Security
Agreement for Securities Account or a Parent Power(R) Guaranty Agreement for
Real Estate.
"Parent Power(R) Guaranty Agreement For Real Estate": With respect to
an MLCC Loan that is a Parent Power(R) Mortgage Loan, an agreement between
MLCC and a guarantor on behalf of the Mortgagor under such Parent Power(R)
Mortgage Loan pursuant to which such guarantor guarantees the payment of
certain losses under such Parent Power(R) Mortgage Loan, authorizes MLCC to
draw on a home equity credit line to fund such guaranty and has secured such
guaranty with a lien on residential real estate of the guarantor. The required
amount of the collateral supporting such guaranty is at least equal to the
Original Additional Collateral Requirement for such Parent Power(R) Mortgage
Loan. For purposes of this definition, the Parent Power(R) Guaranty Agreement
For Real Estate shall not include the rights of the mortgagee under the
security instrument relating to the Equity Access(R) Account (as defined in
the related Parent Power(R) Agreement) referred to therein, which rights have
been retained by MLCC.
"Parent Power(R) Guaranty And Security Agreement For Securities
Account": With respect to an MLCC Loan that is a Parent Power(R) Mortgage
Loan, an agreement between MLCC and a guarantor on behalf of the Mortgagor
under such Parent Power(R) Mortgage Loan pursuant to which such guarantor
guarantees the payment of certain losses under such Parent Power(R) Mortgage
Loan and has granted a security interest to MLCC in certain marketable
securities to collateralize such guaranty. The required amount of such
collateral is at least equal to the Original Additional Collateral Requirement
for such Parent Power(R) Mortgage Loan.
"Parent Power(R) Mortgage Loan": An MLCC Loan having at the time of
origination a Loan-to-Value Ratio generally in excess of MLCC's maximum
acceptable Loan-to-Value Ratio for such Mortgage Loan, which Mortgage Loan is
supported by a Parent Power(R) Agreement.
"Partially Unrecognized Cooperative Loan": A Cooperative Loan for
which a portion of the balance thereof is recognized by the related
Cooperative Corporation.
"Pass-Through Rate": With respect to each Class of Certificates and
any Distribution Date, the Class IA-1 Certificate Pass-Through Rate, the Class
IA-2 Certificate Pass-Through Rate, the Class IIA Certificate Pass-Through
Rate, the Class IIIA Certificate Pass-Through Rate, the Class X Certificate
Pass-Through Rate, the Class X-I Component Pass-Through Rate, the Class X-II
Component Pass-Through Rate, the Class X-III Component Pass-Through Rate, the
Class A-R Certificate Pass-Through Rate, the Subordinate Certificate
Pass-Through Rate or the Subordinated Loan Group Pass-Through Rate, as
applicable.
"Paying Agent": Any paying agent appointed pursuant to Section 5.05
hereof.
"Percentage Interest": With respect to any Certificate other than the
Class A-R Certificate, a fraction, expressed as a percentage, the numerator of
which is the Initial Certificate Balance or Initial Certificate Notional
Balance represented by such Certificate and the denominator of which is the
Original Class Certificate Principal Balance or Original Class Certificate
Notional Balance of the related Class. With respect to the Class A-R
Certificate, 100%.
"Permitted Investments": Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued or managed by the Depositor, a Servicer, the Seller, the
Trustee or any of their respective Affiliates or for which an Affiliate of the
Trustee serves as an advisor:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) (A) demand and time deposits in, certificates of deposit
of, bankers' acceptances issued by or federal funds sold by any
depository institution or trust company (including the Trustee or
its agent acting in their respective commercial capacities)
incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
and/or state authorities, so long as, at the time of such investment
or contractual commitment providing for such investment, such
depository institution or trust company or its ultimate parent has a
short-term uninsured debt rating in one of the two highest available
rating categories of each Rating Agency and provided that each such
investment has an original maturity of no more than 365 days and (B)
any other demand or time deposit or deposit which is fully insured
by the FDIC;
(iii) repurchase obligations with a term not to exceed 30 days
with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting
as principal) rated A or higher by both Rating Agencies; provided,
however, that collateral transferred pursuant to such repurchase
obligation must be of the type described in clause (i) above and
must (A) be valued daily at current market prices plus accrued
interest or (B) pursuant to such valuation, be equal, at all times,
to 105% of the cash transferred by the Trustee in exchange for such
collateral and (C), be delivered to the Trustee or, if the Trustee
is supplying the collateral, an agent for the Trustee, in such a
manner as to accomplish perfection of a security interest in the
collateral by possession of certificated securities;
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United
States of America or any State thereof and that are rated by the
Rating Agencies in its highest long-term unsecured rating categories
at the time of such investment or contractual commitment providing
for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date
of acquisition thereof) that is rated by the Rating Agencies in its
highest short-term unsecured debt rating available at the time of
such investment;
(vi) units of money market funds registered under the
Investment Company Act of 1940 including funds managed or advised by
the Trustee or an affiliate thereof having the highest applicable
rating from S&P and Fitch (if rated by Fitch); and
(vii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to the Rating Agencies
in writing as a permitted investment of funds backing securities
having ratings equivalent to its highest initial ratings of the
Senior Certificates;
provided, however, that no instrument described hereunder shall evidence
either the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying
obligations.
"Permitted Transferee": Any Transferee of the Class A-R Certificate
other than a Disqualified Organization or a non-U.S. Person.
"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.
"PHH Originated Loans": The Mortgage Loans identified in the Mortgage
Loan Schedule as having been originated by PHH Mortgage Services Corporation.
"Physical Certificates": The Private Certificates and the Class A-R
Certificate.
"Pledged Asset Mortgage Servicing Agreement": The Pledged Asset
Mortgage Servicing Agreement, dated May 13, 1996, between Merrill Lynch Credit
Corporation and Greenwich Capital Financial Products, Inc.
"Prepayment Assumption": 18% CPR, as defined in the Prospectus
Supplement.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was the subject of a Principal Prepayment
during the related Prepayment Period, an amount equal to the excess of one
month's interest at the applicable Net Loan Rate on the amount of such
Principal Prepayment over the amount of interest (adjusted to the Net Loan
Rate) actually paid by the related Mortgagor with respect to such Prepayment
Period. The obligations of each Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section 3.24.
"Prepayment Period": With respect to any Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs.
"Principal Balance": As to any Mortgage Loan, other than a Liquidated
Mortgage Loan, and any day, the related Cut-off Date Principal Balance, minus
all collections credited against the Principal Balance of such Mortgage Loan.
For purposes of this definition, a Liquidated Mortgage Loan shall be deemed to
have a Principal Balance equal to the Principal Balance of the related
Mortgage Loan as of the final recovery of related Liquidation Proceeds and a
Principal Balance of zero thereafter. As to any REO Property and any day, the
Principal Balance of the related Mortgage Loan immediately prior to such
Mortgage Loan becoming REO Property minus any REO Principal Amortization
received with respect thereto on or prior to such day.
"Principal Distribution Amount": With respect to each Loan Group and
any Distribution Date, the (i) sum of (a) each scheduled payment of principal
collected or advanced on the related Mortgage Loans by the applicable
Servicers in respect of the related Due Period, (b) that portion of the
Purchase Price, representing principal of any repurchased Mortgage Loan in
such Loan Group, deposited to the applicable Collection Accounts during the
related Prepayment Period, (c) the principal portion of any related
Substitution Adjustments deposited in the applicable Collection Accounts
during the related Prepayment Period, (d) the principal portion of all
Insurance Proceeds received during the related Prepayment Period with respect
to Mortgage Loans in that Loan Group that are not yet Liquidated Mortgage
Loans, (e) the principal portion of all related Net Liquidation Proceeds
received during the related Prepayment Period with respect to Liquidated
Mortgage Loans in that Loan Group, (f) the principal portion of all partial
and full principal prepayments of Mortgage Loans in that Loan Group applied by
the applicable Servicers during the related Prepayment Period, and (g) on the
Distribution Date on which the Trust is to be terminated pursuant to Section
10.01 hereof, that portion of the Termination Price in respect of principal
for that Loan Group; plus (ii) the amount of any Transfer Payment Received for
such Distribution Date; minus (iii) the amount of any Transfer Payment Made
for such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date and that is not accompanied by an amount of interest representing the
full amount of scheduled interest due on any Due Date in any month or months
subsequent to the month of prepayment.
"Private Certificates": The Class B-4, Class B-5 and Class B-6
Certificates.
"Pro Rata Senior Percentage": With respect to each Loan Group and any
Distribution Date, the percentage equivalent of a fraction the numerator of
which is the aggregate of the Class Certificate Principal Balances of the
Classes of Senior Certificates relating to that Loan Group immediately prior
to such Distribution Date and the denominator of which is the aggregate of the
Stated Principal Balances of all Mortgage Loans in the Related Loan Group for
such Distribution Date provided, however, that on any Distribution Date after
a Senior Termination Date has occurred with respect to two Senior Certificate
Groups, the Pro Rata Senior Percentage of the remaining Senior Certificates is
the percentage equivalent of a fraction, the numerator of which is the
aggregate of the Certificate Principal Balances of each remaining Class of
Senior Certificates immediately prior to such date and the denominator of
which is the aggregate of the Certificate Principal Balances of all Classes of
Certificates, immediately prior to such date.
"Pro Rata Share": As to any Distribution Date, the Subordinated
Principal Distribution Amount and any Class of Subordinate Certificates, the
portion of the Subordinated Principal Distribution Amount allocable to such
Class, equal to the product of the Subordinated Principal Distribution Amount
on such date and a fraction, the numerator of which is the related Class
Certificate Principal Balance of that Class and the denominator of which is
the aggregate of the Class Certificate Principal Balances of all the Classes
of Subordinate Certificates.
"Proprietary Lease": With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and the holder of the
related Coop Shares.
"Prospectus Supplement": That certain Prospectus Supplement dated
July 26, 2000 relating to the initial sale of the Senior Certificates and the
Class B-1, Class B-2 and Class B-3 Certificates.
"Purchase Price": With respect to any Mortgage Loan or REO Property
to be purchased pursuant to or as contemplated by Section 2.03 or Section
10.01 hereof, and as confirmed by an Officers' Certificate from the Seller or
the related Servicer, as applicable, to the Trustee, an amount equal to the
sum of (i) 100% of the Principal Balance thereof as of the date of purchase
(or such other price as provided in Section 10.01), plus (ii) in the case of
(x) a Mortgage Loan, accrued interest on such Principal Balance at the
applicable Net Loan Rate from the Due Date as to which interest was last
covered by a payment by the Mortgagor or an Advance by the related Servicer,
which payment or Advance had as of the date of purchase been distributed
pursuant to Section 4.01 hereof, through the end of the calendar month in
which the purchase is to be effected, and (y) an REO Property, the sum of (1)
accrued interest on such Principal Balance at the applicable Net Loan Rate
from the Due Date as to which interest was last covered by a payment by the
Mortgagor or an Advance by the related Servicer through the end of the
calendar month immediately preceding the calendar month in which such REO
Property was acquired, plus (2) REO Imputed Interest for such REO Property for
each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such
purchase is to be effected, net of the total of all net rental income,
Insurance Proceeds, Liquidation Proceeds and Advances that as of the date of
purchase had been distributed as or to cover REO Imputed Interest pursuant to
Section 4.04 hereof, plus (iii) any unreimbursed Servicing Advances and
Advances and any unpaid Servicing Fees allocable to such Mortgage Loan or REO
Property, plus (iv) any amounts previously withdrawn from the Collection
Account in respect of such Mortgage Loan or REO Property pursuant to Section
3.23 hereof, and plus (v) in the case of a Mortgage Loan required to be
purchased pursuant to Section 2.03 hereof, expenses reasonably incurred or to
be incurred by the related Servicer or the Trustee in respect of the breach or
defect giving rise to the purchase obligation.
"Put and Call Agreement": The Put and Call Agreement, dated as of
July 1, 2000, between CDC Financial Products Inc. and the Trustee.
"Put and Call Date": The Class IA-1 Put and Call Date, the Class IA-2
Put and Call Date or the Class IIIA Put and Call Date, as applicable.
"Put and Call Determination Date": The Class IA-1 Put and Call
Determination Date, the Class IA-2 Put and Call Determination Date or the
Class IIIA Put and Call Determination Date, as applicable.
"Put and Call Period": As to any Class IA-1, Class IA-2 or Class IIIA
Certificates, the five (5) Business Day period ending at 5:00 p.m. New York
City time on the related Put and Call Determination Date for such Class of
Senior Certificates.
"Put and Call Purchase Price": With respect to any Class IA-1, Class
IA-2 or Class IIIA Certificate for which the related Certificateholder has
exercised its Senior Put Option or CDC has exercised its Senior Call Option,
the sum of (i) 100% of the outstanding Certificate Principal Balance of such
Certificate on the related Put and Call Date (after giving effect to any
principal distributions otherwise made on such date) plus (ii) accrued and
unpaid interest thereon at the applicable Pass-Through Rate due on the related
Put and Call Date (after giving effect to any interest distributions otherwise
made on such date).
"Qualified Insurer": A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over such insurer in connection
with the insurance policy issued by such insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a Fannie Mae-approved mortgage insurer and having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
"Qualified Substitute Mortgage Loan": A mortgage loan substituted for
a Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on
the date of such substitution, (i) have an outstanding principal balance,
after application of all scheduled payments of principal and interest due
during or prior to the month of substitution, not in excess of, and not more
than 5% less than, the outstanding principal balance of the Deleted Mortgage
Loan as of the Due Date in the calendar month during which the substitution
occurs, (ii) have a Maximum Mortgage Rate not less than the Maximum Mortgage
Rate of the Deleted Mortgage Loan, (iii) have a Gross Margin equal to or
greater than the Gross Margin of the Deleted Mortgage Loan, (iv) have the same
Index as the Deleted Mortgage Loan, (v) have its next Adjustment Date not more
than two months after the next Adjustment Date of the Deleted Mortgage Loan,
(vi) have a remaining term to maturity not greater than (and not more than one
year less than) that of the Deleted Mortgage Loan, (vii) be current as of the
date of substitution, (viii) have a Loan-to-Value Ratio and a
Loan-to-Collateral Value Ratio as of the date of substitution equal to or
lower than the Loan-to-Value Ratio and the Loan-to-Collateral Value Ratio,
respectively, of the Deleted Mortgage Loan as of such date, (ix) have a risk
grading determined by the Seller to be at least equal to the risk grading
assigned on the Deleted Mortgage Loan, (x) have been underwritten or
re-underwritten by the Seller in accordance with the same underwriting
criteria and guidelines as the Deleted Mortgage Loan and (xi) conform to each
representation and warranty set forth in Section 2.04 hereof applicable to the
Deleted Mortgage Loan. In the event that one or more mortgage loans are
substituted for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate principal
balances, the terms described in clause (vi) hereof shall be determined on the
basis of weighted average remaining term to maturity, the Loan-to-Value Ratios
described in clause (viii) hereof shall be satisfied as to each such mortgage
loan, the risk gradings described in clause (ix) hereof shall be satisfied as
to each such mortgage loan, and, except to the extent otherwise provided in
this sentence, the representations and warranties described in clause (xi)
hereof must be satisfied as to each Qualified Substitute Mortgage Loan or in
the aggregate, as the case may be.
"Rating Agencies": S&P and Fitch or their respective successors. If
either such agency or its successors shall no longer be in existence, "Rating
Agencies" shall include such nationally recognized statistical rating agency,
or other comparable Person, as shall have been designated by the Depositor,
notice of which designation shall be given to the Trustee and each Servicer.
"Realized Loss": With respect to any Liquidated Mortgage Loan, the
amount of loss realized equal to the portion of the Principal Balance
remaining unpaid after application of all Net Liquidation Proceeds in respect
of such Mortgage Loan.
"Recognition Agreement": With respect to any Cooperative Loan, an
agreement between the Cooperative Corporation and the originator of such
Mortgage Loan which establishes the rights of such originator in the
Cooperative Property.
"Record Date": With respect to each Distribution Date and all Classes
of Certificates, the last Business Day of the calendar month preceding the
month in which such Distribution Date occurs.
"Refinancing Mortgage Loan": Any Mortgage Loan originated in
connection with the refinancing of an existing mortgage loan.
"Regular Certificate": Any Certificate other than the Class A-R
Certificate.
"Related Class": With respect to each Subordinate Component, the
Class of Subordinate Certificates having a corresponding Class designation.
"Related Loan Group": With respect to the Class IA-1 Certificates and
Class IA-2 Certificates, the Class A-R Certificate and the Subordinate
Components and Class X Components having the "I" designation, Loan Group I;
with respect to the Class IIA Certificates and the Subordinate Components and
Class X Components having the "II" designation, Loan Group II; and with
respect to the Class IIIA Certificates and the Subordinate Components and
Class X Components having the "III" designation, Loan Group III.
"Relief Act": The Soldiers' and Sailors Civil Relief Act of 1940, as
amended.
"Relief Act Reductions": With respect to any Distribution Date and
any Mortgage Loan as to which there has been a reduction in the amount of
interest collectible thereon for the most recently ended Due Period as a
result of the application of the Relief Act, the amount, if any, by which (i)
interest collectible on that Mortgage Loan during such Due Period is less than
(ii) one month's interest on the Principal Balance of such Mortgage Loan at
the Loan Rate for such Mortgage Loan before giving effect to the application
of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
"Remittance Report": A report prepared by a Servicer and delivered to
the Trustee pursuant to Section 4.05 hereof.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The account or accounts maintained by a Servicer in
respect of an REO Property pursuant to Section 3.23 hereof.
"REO Disposition": The sale or other disposition of an REO Property
on behalf of the Trust Fund.
"REO Imputed Interest": As to any REO Property, for any calendar
month during which such REO Property was at any time part of the Trust Fund,
one month's interest at the applicable Net Loan Rate on the Principal Balance
of such REO Property (or, in the case of the first such calendar month, of the
related Mortgage Loan if appropriate) as of the Close of Business on the Due
Date in such calendar month.
"REO Principal Amortization": With respect to any REO Property, for
any calendar month, the excess, if any, of (a) the aggregate of all amounts
received in respect of such REO Property during such calendar month, whether
in the form of rental income, sale proceeds (including, without limitation,
that portion of the Termination Price paid in connection with a purchase of
all of the Mortgage Loans and REO Properties pursuant to Section 10.01 hereof
that is allocable to such REO Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to Section 3.23 hereof in respect of the
proper operation, management and maintenance of such REO Property or (ii)
payable or reimbursable to the applicable Servicer pursuant to Section 3.23
for unpaid Servicing Fees in respect of the related Mortgage Loan and
unreimbursed Servicing Advances and Advances in respect of such REO Property
or the related Mortgage Loan, over (b) the REO Imputed Interest in respect of
such REO Property for such calendar month.
"REO Property": A Mortgaged Property acquired by the applicable
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.23 hereof.
"Request for Release": A release signed by a Servicing Officer, in
the form of Exhibit F attached hereto.
"Required Surety Payment": With respect to any Additional Collateral
Mortgage Loan that becomes a Liquidated Mortgage Loan, the lesser of (i) the
related Additional Collateral Mortgage Loan Liquidation Shortfall and (ii) the
excess, if any, of (a) the Original Additional Collateral Requirement with
respect to such Mortgage Loan over (b) the net proceeds realized by MLCC from
the related Additional Collateral.
"Residential Dwelling": Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project, (iv) a manufactured home,
(v) a detached one-family dwelling in a planned unit development or (vi) a
Cooperative Unit, none of which is a mobile home.
"Responsible Officer": When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the Chairman
or Vice Chairman of the Executive or Standing Committee of the Board of
Directors or Trustees, the President, any vice president, any assistant vice
president, the Secretary, any assistant secretary, the Treasurer, any
assistant treasurer, the Cashier, any assistant cashier, any trust officer or
assistant trust officer, the Controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and, with respect to a
particular matter, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Classes": As defined in Section 4.01(e).
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
"Seller": Greenwich Capital Financial Products, Inc., a Delaware
corporation, and its successors in interest, in its capacity as seller under
this Agreement.
"Senior Call Option": The option of CDC to require each of the Class
IA-1, Class IA-2 or Class IIIA Certificateholders to sell their Class of
Senior Certificates to CDC or its designee on the related Put and Call Date,
exercisable by CDC during the related Put and Call Period.
"Senior Call Option Holder": CDC.
"Senior Certificate": Any one of the Class IA-1, Class IA-2, Class
IIA, Class IIIA or Class X Certificates or the Class A-R Certificate as
designated on the face thereof, substantially in the form annexed hereto as
Exhibit A, Exhibit B or Exhibit C, as applicable, executed, authenticated and
delivered by the Trustee, representing the right to distributions as set forth
herein and therein.
"Senior Certificate Group": Any of (x) the Class IA-1 and Class IA-2
Certificates, the Class A-R Certificate and the Class X-I Component; (y) the
Class IIA Certificates and the Class X-II Component or (z) the Class III
Certificates and the Class X-III Component, as applicable.
"Senior Certificateholder": Any Holder of a Senior Certificate.
"Senior Credit Support Depletion Date": The date on which the Class
Certificate Principal Balance of each Class of Subordinate Certificates has
been reduced to zero.
"Senior Percentage": Except as described below, with respect to each
Loan Group and any Distribution Date before August 2010, 100%. The Senior
Percentage for each Loan Group and any Distribution Date occurring (i) before
August 2010 but in or after July 2003 on which the Two Times Test is
satisfied, or (ii) in or after August 2010, is the Pro Rata Senior Percentage.
If the Two Times Test is satisfied prior to July 2003, the Senior Percentage
for each Loan Group is the Pro Rata Senior Percentage for such Loan Group plus
50% of an amount equal to 100% minus the related Pro Rata Senior Percentage.
With respect to any Distribution Date after the Senior Termination Date has
occurred with respect to a Senior Certificate Group, the Senior Percentage for
such Senior Certificate Group will equal 0%.
"Senior Prepayment Percentage": With respect to each Loan Group and
any Distribution Date during the ten years beginning on the first Distribution
Date, 100%. Except as provided herein, the Senior Prepayment Percentage for
each Loan Group and any Distribution Date occurring on or after the tenth
anniversary of the first Distribution Date will be as follows: (i) from August
2010 through July 2011, the related Senior Percentage plus 70% of the related
Subordinate Percentage for that Distribution Date; (ii) from August 2011
through July 2012, the related Senior Percentage plus 60% of the related
Subordinate Percentage for that Distribution Date; (iii) from August 2012
through July 2013, the related Senior Percentage plus 40% of the related
Subordinate Percentage for that Distribution Date; (iv) from August 2013
through July 2014, the related Senior Percentage plus 20% of the related
Subordinate Percentage for that Distribution Date; and (v) from and after
August 2014, the related Senior Percentage for that Distribution Date;
provided, however, that there shall be no reduction in the Senior Prepayment
Percentage unless both Step Down Conditions are satisfied; and provided,
further, that if on any Distribution Date the Senior Percentage exceeds the
initial Pro Rata Senior Percentage for such Loan Group, the Senior Prepayment
Percentage for that Distribution Date will again equal 100%.
Notwithstanding the above, if on any Distribution Date the Two Times
Test is satisfied, the Senior Prepayment Percentage for each Loan Group will
equal the related Senior Percentage.
"Senior Principal Distribution Amount": With respect to each Loan
Group and any Distribution Date, the sum of:
(1) the related Senior Percentage of all amounts described
in clauses (i)(a) through (i)(d) and (i)(g) of the definition
of "Principal Distribution Amount" for that Distribution Date;
(2) with respect to each Mortgage Loan in that Loan Group
which became a Liquidated Mortgage Loan during the related
Prepayment Period, the lesser of
(x) the related Senior Percentage of the Stated
Principal Balance of that Mortgage Loan and
either
(y) the related Senior Prepayment Percentage of the
amount of the Net Liquidation Proceeds allocable
to principal received with respect to that
Mortgage Loan
or
(z) if an Excess Loss was sustained with
respect to such Liquidated Mortgage Loan
during such related Prepayment Period, the
related Senior Percentage of the amount of
Net Liquidation Proceeds allocable to
principal received with respect to that
Mortgage Loan;
(3) the related Senior Prepayment Percentage of the
amounts described in clause (i)(f) of the definition of
"Principal Distribution Amount" for that Loan Group and
Distribution Date; and
(4) the amount of any Transfer Payment Received for that
Distribution Date;
provided, however, that if a Bankruptcy Loss that is an Excess Loss is
sustained with respect to any Mortgage Loan that is not a Liquidated Mortgage
Loan, such Senior Principal Distribution Amount will be reduced on such
Distribution Date by the related Senior Percentage of the principal portion of
such Bankruptcy Loss; and provided, further, that on any Distribution Date
after a Senior Termination Date has occurred with respect to two Senior
Certificate Groups, the Senior Principal Distribution Amount for the remaining
Senior Certificate Group will be calculated pursuant to the above formula
based on all the Mortgage Loans rather than the Mortgage Loans in the Related
Loan Group only.
"Senior Put Option": With respect to each Class IA-1, Class IA-2 and
Class IIIA Certificateholder , if any, that shall have acquired the right to
require CDC to purchase such Certificateholder's Class of Senior Certificates
on the related Put and Call Date, such right as shall be exercisable by such
Holders during the related Put and Call Period.
"Senior Termination Date": For each Senior Certificate Group, the
Distribution Date on which the aggregate of the Class Certificate Principal
Balances of the related Senior Certificates is reduced to zero.
"Servicer": Either of Countrywide or ABN AMRO, as the context
requires, or any successor servicer appointed as herein provided.
"Servicer Affiliate": A Person (i) controlling, controlled by or
under common control with a Servicer or which is 50% or more owned by a
Servicer and (ii) which is qualified to service residential mortgage loans.
"Servicer Event of Termination": One or more of the events described
in Section 7.01 hereof.
"Servicer Remittance Date": With respect to any Distribution Date,
the 18th day of the calendar month of such Distribution Date or, if the 18th
day is not a Business Day, the first Business Day after the 18th day,
commencing in August 2000.
"Servicing Account": With respect to each Servicer, the account or
accounts created and maintained by such Servicer pursuant to Section 3.09
hereof.
"Servicing Advances": With respect to any Servicer, all customary,
reasonable and necessary "out of pocket" costs and expenses (including
reasonable attorneys' fees and expenses) incurred by such Servicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration, inspection and protection of the
related Mortgaged Property, (ii) any enforcement or judicial proceedings,
including foreclosures, (iii) the management and liquidation of the related
REO Property and (iv) compliance with the obligations under Sections 3.01,
3.09, 3.16, and 3.23 hereof.
"Servicing Fee": With respect to each Servicer and each Mortgage Loan
serviced by such Servicer and for any calendar month, an amount equal to one
month's interest (or in the event of any payment of interest which accompanies
a Principal Prepayment made by the Mortgagor during such calendar month,
interest for the number of days covered by such payment of interest) at the
applicable Servicing Fee Rate on the Stated Principal Balance of such Mortgage
Loan (or, if applicable, the REO Property related to such Mortgage Loan) as of
the first day of such calendar month. The Servicing Fee for any Servicer may
be retained by any related Sub-Servicer as its servicing compensation.
"Servicing Fee Rate": With respect to each Mortgage Loan, the per
annum servicing fee rate set forth on the Mortgage Loan Schedule.
"Servicing Officer": Any officer of a Servicer involved in, or
responsible for, the administration and servicing of Mortgage Loans, whose
name and specimen signature appear on a list of servicing officers furnished
by such Servicer to the Trustee and the Depositor on the Closing Date, as such
list may from time to time be amended.
"Servicing Standard": The standards set forth in Section 3.01 hereof.
"Servicing Transferred Loans": The MLCC Loans that shall become
Cendant Loans as of August 1, 2000, as identified in the Mortgage Loan
Schedule.
"Six-Month LIBOR": The average of interbank offered rates for
six-month U.S. dollar deposits in the London market based on quotations of
major banks.
"Six-Month LIBOR Indexed": Indicates a Mortgage Loan that has an
adjustable Mortgage Rate calculated on the basis of the Six-Month LIBOR Index.
"Special Hazard Coverage Termination Date": The date on which the
Special Hazard Loss Coverage Amount is reduced to zero.
"Special Hazard Loss": Any Realized Loss suffered by a Mortgaged
Property on account of direct physical loss but not including (i) any loss of
a type covered by a hazard insurance policy or a flood insurance policy
required to be maintained with respect to such Mortgaged Property pursuant to
Section 3.14 hereof to the extent of the amount of such loss covered thereby,
or (ii) any loss caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, a Servicer or any of their agents or employees (without regard to any
portion of the loss not covered by any errors and omissions policy);
(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for the
ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and whether
such loss be direct or indirect, proximate or remote or be in whole or in part
caused by, contributed to or aggravated by a peril covered by the definition
of the term "Special Hazard Loss";
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending or
expected attack:
1. by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air
forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority or
risks of contraband or illegal transportation or trade.
"Special Hazard Loss Coverage Amount": With respect to the first
Distribution Date, $6,197,559. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the Principal Balances of the Mortgage Loans, (ii) twice the
Principal Balance of the largest Mortgage Loan and (iii) the aggregate of the
Principal Balances of the Mortgage Loans secured by Mortgaged Properties
located in the single five-digit ZIP code area in the State of California
having the highest aggregate Principal Balance of any such ZIP code area and
(b) the Special Hazard Loss Coverage Amount as of the Closing Date less the
amount, if any, of Special Hazard Losses allocated to the Certificates since
the Closing Date; provided, however, that the Special Hazard Loss Coverage
Amount may also be reduced pursuant to a letter from each Rating Agency to the
Trustee to the effect that any such reduction will not result in the
downgrading of the then current ratings assigned by such Rating Agency to the
Classes of Senior Certificates. All Principal Balances for the purpose of this
definition will be calculated as of the first day of the calendar month
preceding the month of such Distribution Date after giving effect to scheduled
payments on the Mortgage Loans then due, whether or not paid.
"Special Hazard Mortgage Loan": A Liquidated Mortgage Loan as to
which a Special Hazard Loss has occurred.
"Startup Day": As defined in Section 9.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan: (a) as
of the Distribution Date in August 2000, the outstanding Principal Balance of
such Mortgage Loan as of the Cut-off Date, (b) thereafter as of any date of
determination up to and including the Distribution Date on which the proceeds,
if any, of a Liquidation Event with respect to such Mortgage Loan would be
distributed, the outstanding principal balance of such Mortgage Loan as of the
Cut-off Date, as shown in the Mortgage Loan Schedule, minus, in the case of
each Mortgage Loan, the sum of (i) the principal portion of each Monthly
Payment due on a Due Date subsequent to the Cut-off Date, to the extent
received from the Mortgagor or advanced by the applicable Servicer and
distributed pursuant to Section 4.01 hereof before such date of determination,
(ii) all Principal Prepayments received after the Cut-off Date, to the extent
distributed pursuant to Section 4.01 before such date of determination, (iii)
all Liquidation Proceeds and Insurance Proceeds applied by the applicable
Servicer as recoveries of principal in accordance with the provisions of
Section 3.16 hereof, to the extent distributed pursuant to Section 4.01 before
such date of determination, and (iv) any Realized Loss incurred with respect
thereto as a result of a Deficient Valuation made during or prior to the Due
Period for the most recent Distribution Date preceding such date of
determination; and (c) as of any date of determination subsequent to the
Distribution Date on which the proceeds, if any, of a Liquidation Event with
respect to such Mortgage Loan would be distributed, zero. With respect to any
REO Property: (x) as of any date of determination up to and including the
Distribution Date on which the proceeds, if any, of a Liquidation Event with
respect to such REO Property would be distributed, an amount (not less than
zero) equal to the Stated Principal Balance of the related Mortgage Loan as of
the date on which such REO Property was acquired on behalf of the Trust Fund,
minus the aggregate amount of REO Principal Amortization in respect of such
REO Property for all previously ended calendar months, to the extent
distributed pursuant to Section 4.01 before such date of determination; and
(y) as of any date of determination subsequent to the Distribution Date on
which the proceeds, if any, of a Liquidation Event with respect to such REO
Property would be distributed, zero. For purposes of calculating the Servicing
Fee for any Mortgage Loan, the Stated Principal Balance shall not be reduced
by item (b)(iv) above.
"Step Down Conditions": As of the first Distribution Date as to which
any decrease in any Senior Prepayment Percentage applies, (i) the outstanding
Principal Balance of all Mortgage Loans 60 days or more Delinquent (averaged
over the preceding six month period), as a percentage of the aggregate of the
Class Certificate Principal Balances of the Classes of Subordinate
Certificates on such Distribution Date, does not equal or exceed 50% and (ii)
cumulative Realized Losses with respect to the Mortgage Loans do not exceed
(a) with respect to each Distribution Date from August 2010 through July 2011,
30% of the Original Subordinated Principal Balance, (b) with respect to each
Distribution Date from August 2011 through July 2012, 35% of the Original
Subordinated Principal Balance, (c) with respect to each Distribution Date
from August 2012 through July 2013, 40% of the Original Subordinated Principal
Balance, (d) with respect to each Distribution Date from August 2013 through
July 2014, 45% of the Original Subordinated Principal Balance and (e) with
respect to each Distribution Date from and after August 2014, 50% of the
Original Subordinated Principal Balance.
"Subordinate Certificate": Any one of the Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 or Class B-6 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit C, executed by the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein.
"Subordinate Certificate Pass-Through Rate": With respect to (a) each
Class of Subordinate Certificates and any Distribution Date, the rate per
annum equal to the weighted average of the Net WACs for Loan Group I, Loan
Group II and Loan Group III (weighted on the basis of the respective
Subordinated Loan Group Balances); provided, however, that the Subordinate
Certificate Pass-Through Rate for the first Distribution Date shall be
7.72406%.
"Subordinate Component": With respect to each Class of Subordinate
Certificates and any Distribution Date, the portion of the Class Certificate
Principal Balance of such Class on such Distribution Date that is allocable to
Loan Group I, Loan Group II or Loan Group III, as applicable. The designation
"I", "II" or "III" appearing after the corresponding Loan Group designation is
used to indicate a Subordinate Component allocable to Loan Group I, Loan Group
II and Loan Group III, respectively.
"Subordinate Component Balance": With respect to each Subordinate
Component and any Distribution Date, the Original Subordinate Component
Balance of such Subordinate Component as reduced by the sum of (x) all amounts
attributable to the Related Loan Group and distributed in respect of principal
of the Related Class on all prior Distribution Dates and (y) all Realized
Losses, Bankruptcy Losses, Special Hazard Losses, Fraud Losses and Excess
Losses, if any, attributable to the Related Loan Group and allocated to the
Related Class on all prior Distribution Dates.
"Subordinate Percentage": With respect to the Subordinate Components
relating to each Loan Group and any Distribution Date, the difference between
100% and the Senior Percentage for such Loan Group and Distribution Date;
provided, however, that on any Distribution Date occurring after a Senior
Termination Date has occurred with respect to two Senior Certificate Groups,
the Subordinate Percentage will represent the entire interest of the
Subordinate Certificates in the Mortgage Loans and will equal the difference
between 100% and the Senior Percentage for such Distribution Date.
"Subordinate Prepayment Percentage": With respect to each Loan Group
and any Distribution Date, the difference between 100% and the related Senior
Prepayment Percentage for that Distribution Date.
"Subordinated Loan Group Balance": For Loan Group I, the excess of
the Loan Group Balance of Loan Group I over the sum of the Class Certificate
Principal Balances of the Class IA-1 Certificates, the Class IA-2 Certificates
and the Class A-R Certificate; for Loan Group II, the excess of the Loan Group
Balance of Loan Group II over the Class Certificate Principal Balance of the
Class IIA Certificates; and for Loan Group III, the excess of the Loan Group
Balance of Loan Group III over the Class Certificate Principal Balance of the
Class IIIA Certificates.
"Subordinated Loan Group Pass-Through Rate": With respect to a Loan
Group, the related Net WAC for the Loan Group.
"Subordinated Principal Distribution Amount": With respect to each
Loan Group and any Distribution Date, an amount equal to (x) the sum of:
(1) the related Subordinate Percentage of all amounts
described in clauses (i)(a) through (i)(d) and (i)(g) of the
definition of "Principal Distribution Amount" for that Loan
Group and Distribution Date;
(2) with respect to each Mortgage Loan in that Loan Group
that became a Liquidated Mortgage Loan during the related
Prepayment Period the amount of the Net Liquidation Proceeds
allocated to principal received with respect thereto remaining
after application thereof pursuant to clause (2) of the
definition of "Senior Principal Distribution Amount" for that
Loan Group and Distribution Date, up to the related Subordinate
Percentage of the Stated Principal Balance of such Mortgage
Loan; and
(3) the related Subordinated Prepayment Percentage of all
amounts described in clause (i)(f) of the definition of
"Principal Distribution Amount" for that Loan Group and
Distribution Date;
minus (y) any Transfer Payment Made for that Distribution Date; provided,
however, that if a Bankruptcy Loss that is an Excess Loss is sustained with
respect to any Mortgage Loan that is not a Liquidated Mortgage Loan, such
Subordinated Principal Distribution Amount will be reduced on such
Distribution Date by the related Subordinate Percentage of the principal
portion of such Bankruptcy Loss and provided, further, that on any
Distribution Date occurring after a Senior Termination Date has occurred with
respect to two Senior Certificate Groups, the Subordinated Principal
Distribution Amount will not be calculated by Loan Group but will equal the
amount calculated pursuant to the formula set forth above based on the
applicable Subordinate Percentage or Subordinate Prepayment Percentage, as
applicable, for such Distribution Date with respect to all the Mortgage Loans
rather than the Mortgage Loans in the Related Loan Group only.
"Sub-Servicer": Any Person with which any Servicer has entered into a
Sub-Servicing Agreement and which meets the qualifications of a Sub-Servicer
pursuant to Section 3.02.
"Sub-Servicing Account": An account established by a Sub-Servicer
that meets the requirements set forth in Section 3.08 and is otherwise
acceptable to the Servicer.
"Sub-Servicing Agreement": The written contract between a Servicer
and a Sub-Servicer relating to servicing and administration of certain
Mortgage Loans as provided in Section 3.02.
"Substitution Adjustment": As defined in Section 2.03(d) hereof.
"Surety": Ambac Assurance Corporation (formerly known as AMBAC
Indemnity Corporation), or any successor thereto, as issuer of the Certificate
Guaranty Surety Bond.
"Tax Matters Person": The tax matters person appointed pursuant to
Section 9.01(e) hereof.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of the REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of the Trust in its capacity as a REMIC under the
REMIC Provisions, together with any and all other information reports or
returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax laws.
"Termination Price": As defined in Section 10.01(a) hereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in the Class A-R Certificate.
"Transfer Affidavit": As defined in Section 5.02(e)(ii) hereof.
"Transfer Condition": As to each Loan Group and any Distribution Date
prior to the Senior Credit Support Depletion Date, the existence of an OC
Condition or a UC Condition. No Loan Group can have both an OC Condition and a
UC Condition simultaneously.
"Transfer Payment Made": As to any Distribution Date prior to the
Senior Credit Support Depletion Date (as long as any Class of Senior
Certificates is still outstanding) and (a) a Loan Group with an OC Condition,
the Principal Distribution Amount for such Loan Group and Distribution Date;
or (b) a Loan Group if any other Loan Group has a UC Condition, the
Subordinated Principal Distribution Amount for such Loan Group or Loan Groups,
up to the amount necessary to eliminate the UC Condition in such other Loan
Group or Loan Groups or (c) a Loan Group with an OC Condition and any other
Loan Group has a UC Condition, the Principal Distribution Amount for such Loan
Group and Distribution Date.
"Transfer Payment Received": As to any Distribution Date prior to the
Senior Credit Support Depletion Date (as long as any Class of Senior
Certificates is still outstanding) and (x) a Loan Group with an OC Condition,
zero, and (y) a Loan Group with a UC Condition or a Loan Group, if any other
Loan Group has an OC Condition, the amount of the Transfer Payment Made for
such Distribution Date by such other Loan Group or Loan Groups. If more than
one Loan Group is entitled to receive a transfer payment pursuant to clause
(y) of this definition of "Transfer Payment Received," the related Transfer
Payment made by the other Loan Group shall be allocated between those two Loan
Groups on the basis of the Class Certificate Principal Balances of the Class
or Classes of Senior Certificates (other than the Class X Certificates) in the
respective Senior Certificate Groups related to those two Loan Groups.
"Trust": HarborView Mortgage Loan Trust 2000-1, the trust created
hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered
hereunder, with respect to which a REMIC election is to be made, such Trust
Fund consisting of: (i) such Mortgage Loans as from time to time are subject
to this Agreement, together with the Mortgage Files relating thereto, and
together with all collections thereon and proceeds thereof, (ii) any REO
Property, together with all collections thereon and proceeds thereof, (iii)
the Trustee's rights with respect to the Mortgage Loans under all insurance
policies required to be maintained pursuant to this Agreement and any proceeds
thereof, (iv) the Depositor's rights under the Mortgage Loan Purchase
Agreement (including any security interest created thereby); (v) the
Depositor's security interest in the Additional Collateral, (vi) each
Collection Account, the Distribution Account (subject to the last sentence of
this definition), any REO Account and such assets that are deposited therein
from time to time and any investments thereof, together with any and all
income, proceeds and payments with respect thereto, (vii) the Certificate
Guaranty Surety Bond, (viii) all right, title and interest of the Depositor in
and to the Pledged Asset Mortgage Servicing Agreement, each Mortgage 1004
Pledge Agreement and each Parent Power(R) Agreement and (ix) all right, title
and interest of the Seller in and to the Greenwich Servicing Contract.
Notwithstanding the foregoing, however, the Trust Fund specifically excludes
(1) all payments and other collections of interest due on the Mortgage Loans
on or before the Cut-off Date and principal received before the Cut-off Date
(except any principal collected as part of a payment due on or after the
Cut-off Date) and (2) all income and gain realized from Permitted Investments
of funds on deposit in the Collection Account and the Distribution Account.
"Trustee": Bankers Trust Company of California, N.A., a national
banking association, or any successor trustee appointed as herein provided.
"Trustee Fee": As to any Distribution Date, an amount equal to
one-twelfth of the Trustee Fee Rate multiplied by the aggregate of the Stated
Principal Balances of all the Mortgage Loans as of the beginning of the
related Due Period.
"Trustee Fee Rate": 0.015% per annum.
"Two Times Test": As to any Distribution Date, (i) the Aggregate
Subordinate Percentage is at least two times the Aggregate Subordinate
Percentage as of the Closing Date; (ii) the aggregate of the Principal
Balances of all Mortgage Loans delinquent 60 days or more (averaged over the
preceding six-month period), as a percentage of the aggregate of the Class
Certificate Principal Balances of the Subordinate Certificates, does not equal
or exceed 50%; and (iii) cumulative Realized Losses do not exceed 30% of the
Original Subordinated Principal Balance.
"UC Condition": As to each Loan Group and any Distribution Date prior
to the Senior Credit Support Depletion Date, a "UC Condition" shall exist if
the aggregate Class Certificate Principal Balance of the Senior Certificates
in the related Senior Certificate Group is greater than the Loan Group Balance
of the Related Loan Group.
"Uninsured Cause": Any cause of damage to a Mortgaged Property such
that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained pursuant to Section
3.14 hereof.
"United States Person" or "U.S. Person": A citizen or resident of the
United States, a corporation, partnership or other entity treated as a
corporation or partnership for federal income tax purposes (other than a
partnership that is not treated as a U.S. Person pursuant to any applicable
Treasury regulations) created or organized in, or under the laws of, the
United States, any state thereof or the District of Columbia, or an estate the
income of which from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have authority to control all substantial decisions of the trust. The
term "United States" shall have the meaning set forth in Section 7701 of the
Code or successor provisions.
"Unpaid Interest Shortfall Amount": With respect to each Class of
Certificates (or, in the case of the Class X Certificates, the Class X
Components) and (i) the first Distribution Date, zero, and (ii) any
Distribution Date after the first Distribution Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Distributable Amount for that
Class (or, in the case of the Class X Certificates, the Class X Components)
for the immediately preceding Distribution Date and (2) the outstanding Unpaid
Interest Shortfall Amount, if any, for that Class (or, in the case of the
Class X Certificates, the Class X Components) for such preceding Distribution
Date exceeds (b) the aggregate amount distributed on that Class (or, in the
case of the Class X Certificates, the Class X Components) in respect of
interest pursuant to clause (a) of this definition on the preceding
Distribution Date.
"Unrecognized Cooperative Loan": A Cooperative Loan which is not
recognized by the related Cooperative Corporation.
"Upper Tier REMIC": As defined in the Preliminary Statement.
"Upper Tier REMIC Regular Interest": As defined in the Preliminary
Statement.
"Value": With respect to any Mortgage Loan and the related Mortgaged
Property, the lesser of:
(i) the value of such Mortgaged Property as determined by an
appraisal made for the originator of the Mortgage Loan at the time of
origination of the Mortgage Loan by an appraiser who met the minimum
requirements of Fannie Mae and Freddie Mac; and
(ii) the purchase price paid for the related Mortgaged
Property by the Mortgagor with the proceeds of the Mortgage
Loan;
provided, however, that in the case of a Refinancing Mortgage Loan, such value
of the Mortgaged Property is based solely upon the value determined by an
appraisal made for the originator of such Refinancing Mortgaged Loan at the
time of origination by an appraiser who met the minimum requirements of Fannie
Mae and Freddie Mac.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. For so long as the Class X
Certificates are outstanding, 1% of the voting rights shall be allocated to
the Class X Certificates (such Voting Rights to be allocated among the Holders
of Class X Certificates in accordance with their respective Percentage
Interests) and the remainder of the voting rights (or 100% thereof when the
Class X Certificates are no longer outstanding) shall be allocated among the
Classes of Certificates other than the Class X Certificates, pro rata, based
on a fraction, expressed as a percentage, the numerator of which is the Class
Certificate Principal Balance of such Class and the denominator of which is
the aggregate of the Class Certificate Principal Balances then outstanding;
provided, however, that the Class A-R Certificate and the Subordinate
Certificates shall not be entitled to any voting rights for so long as any
Senior Certificates (other than the Class A-R Certificate) remain outstanding;
and, provided further, that when none of the Regular Certificates is
outstanding, 100% of the voting rights shall be allocated to the Holder of the
Class A-R Certificate. The voting rights allocated to a Class of Certificates
shall be allocated among all Holders of such Class, pro rata, based on a
fraction the numerator of which is the Certificate Balance or Certificate
Notional Balance of each Certificate of such Class and the denominator of
which is the Class Certificate Principal Balance or Class Certificate Notional
Balance of such Class; provided, however, that any Certificate registered in
the name of the Servicer, the Depositor or the Trustee or any of their
respective affiliates shall not be included in the calculation of Voting
Rights.
SECTION 1.02. Accounting.
Unless otherwise specified herein, for the purpose of any definition
or calculation, whenever amounts are required to be netted, subtracted or
added or any distributions are taken into account such definition or
calculation and any related definitions or calculations shall be determined
without duplication of such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders all the right,
title and interest of the Seller in and to the Greenwich Servicing Contract
and all the right, title and interest of the Depositor, including any security
interest therein for the benefit of the Depositor, in and to (i) each Mortgage
Loan identified on the Mortgage Loan Schedule, including the related Cut-off
Date Principal Balance, all interest due thereon after the Cut-off Date and
all collections in respect of interest and principal due after the Cut-off
Date; (ii) any real property that secured each such Mortgage Loan and that has
been acquired by foreclosure or deed in lieu of foreclosure; (iii) the
Depositor's interest in any insurance policies in respect of the Mortgage
Loans; (iv) the Depositor's security interest in the Additional Collateral;
(v) all proceeds of any of the foregoing; and (vi) all other assets included
or to be included in the Trust Fund. Such assignment includes all interest and
principal due to the Depositor or any Servicer after the Cut-off Date with
respect to the Mortgage Loans.
In connection with such transfer and assignment, the Seller, on
behalf of the Depositor, does hereby deliver on the Closing Date, unless
otherwise specified in this Section 2.01, to, and deposit with the Trustee the
following documents or instruments with respect to each Mortgage Loan (a
"Mortgage File") so transferred and assigned:
(i) the original Mortgage Note, endorsed either on its face or by
allonge attached thereto in the following form: "Pay to the
order of Bankers Trust Company of California, N.A., as Trustee
under the Pooling and Servicing Agreement, dated as of July 1,
2000, HarborView Mortgage Loan Trust 2000-1, Mortgage
Pass-Through Certificates, Series 2000-1, without recourse", or
with respect to any lost Mortgage Note, an original Lost Note
Affidavit stating that the original mortgage note was lost,
misplaced or destroyed, together with a copy of the related
mortgage note; provided, however, that such substitutions of
Lost Note Affidavits for original Mortgage Notes may occur only
with respect to Mortgage Loans in each Loan Group, the aggregate
Cut-off Date Principal Balance of which is less than or equal to
2% of the Cut-off Date Aggregate Principal Balance of such Loan
Group;
(ii) except with respect to a Cooperative Loan and except as provided
below, for each Mortgage Loan that is not a MERS Mortgage Loan,
the original Mortgage, and in the case of each MERS Mortgage
Loan, the original Mortgage, noting the presence of the MIN for
that Mortgage Loan and either language indicating that the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan,
or if such Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment to MERS, in each case with
evidence of recording thereon, and the original recorded power
of attorney, if the Mortgage was executed pursuant to a power of
attorney, with evidence of recording thereon or, if such
Mortgage or power of attorney has been submitted for recording
but has not been returned from the applicable public recording
office, has been lost or is not otherwise available, a copy of
such Mortgage or power of attorney, as the case may be,
certified to be a true and complete copy of the original
submitted for recording;
(iii) except with respect to a Cooperative Loan, in the case of each
Mortgage Loan that is not a MERS Mortgage Loan, an original
Assignment of Mortgage, in form and substance acceptable for
recording. The Mortgage shall be assigned to "Bankers Trust
Company of California, N.A., as Trustee";
(iv) in the case of each Mortgage Loan that is not a MERS Mortgage
Loan, an original copy of any intervening Assignment of Mortgage
showing a complete chain of assignments;
(v) except with respect to a Cooperative Loan, the original or a
certified copy of lender's title insurance policy;
(vi) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any; and
(vii) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A) except for Partially Unrecognized Cooperative Loans, the
Coop Shares, together with a stock power in blank;
(B) the executed Security Agreement;
(C) except for Partially Unrecognized Cooperative Loans, the
executed Proprietary Lease;
(D) except for Partially Unrecognized Cooperative Loans, the
executed Recognition Agreement;
(E) except for Partially Unrecognized Cooperative Loans, the
executed UCC-1 financing statement with evidence of
recording thereon which have been filed in all places
required to perfect the Seller's interest in the Coop
Shares and the Proprietary Lease; and
(F) except for Partially Unrecognized Cooperative Loans,
executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing
a complete and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon (or in a form
suitable for recordation).
In addition, in connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at the Seller's expense, the MERS(R) System
to indicate that such Mortgage Loans have been assigned by the Seller to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
that are repurchased in accordance with this Agreement) in such computer files
the information required by the MERS(R) System to identify the series of the
Certificates issued in connection with the transfer of such Mortgage Loans of
the HarborView Mortgage Loan Trust 2000-1. Each Servicer hereby agrees that it
will not alter the codes referenced in this paragraph with respect to any
Mortgage Loan serviced by it during the term of this Agreement unless and
until such Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
The Seller shall deliver the required documents to the Trustee prior
to the Closing Date. In the case of the documents referred to in Section
2.01(iii), however, the Seller has delivered a copy of each Assignment of
Mortgage certified by the Seller to be a true and complete copy of the
original and, within two Business Days after the Closing Date, the Seller will
deliver each original Assignment of Mortgage to the applicable public
recording office for recordation.
The Trustee agrees to execute and deliver to the Depositor on or prior to the
Closing Date an acknowledgment of receipt of the original Mortgage Note (with
any exceptions noted), substantially in the form attached as Exhibit G-3
hereto.
If, as of the Closing Date, any of the documents referred to in
Section 2.01(ii) or (iv) above has been submitted for recording but either (x)
has not been returned from the applicable public recording office or (y) has
been lost or such public recording office has retained the original of such
document, the obligations of the Seller to deliver such documents shall be
deemed to be satisfied upon (1) delivery to the Trustee, no later than the
Closing Date, of a copy of each such document certified by the Seller in the
case of (x) above or the applicable public recording office in the case of (y)
above to be a true and complete copy of the original that was submitted for
recording and (2) if such copy is certified by the Seller, delivery to the
Trustee, promptly upon receipt thereof, of either the original or a copy of
such document certified by the applicable public recording office to be a true
and complete copy of the original. If the original lender's title insurance
policy, or a certified copy thereof, was not delivered pursuant to Section
2.01(v) above, the Seller shall deliver or cause to be delivered to the
Trustee the original or a copy of a written commitment or interim binder or
preliminary report of title issued by the title insurance or escrow company,
with the original or a certified copy thereof to be delivered to the Trustee,
promptly upon receipt thereof. The Seller shall deliver or cause to be
delivered to the Trustee, promptly upon receipt thereof, any other documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan sold to the Depositor by the Seller, including, but not limited to, any
original documents evidencing an assumption or modification of any Mortgage
Loan.
Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File, the Seller
shall have 90 days to cure such defect or deliver such missing document to the
Trustee. If the Seller does not cure such defect or deliver such missing
document within such time period, the Seller shall either repurchase or
substitute for such Mortgage Loan in accordance with Section 2.03 hereof. The
Seller shall cause the Assignments of Mortgage referred to in Section
2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv) hereof to
be recorded; provided, however, that the Seller need not cause to be recorded
any Assignment which relates to a Mortgage Loan in any jurisdiction under the
laws of which, as evidenced by an Opinion of Counsel delivered by the Seller
to the Trustee and the Rating Agencies, the recordation of such Assignment is
not necessary to protect the Trustee's interest in the related Mortgage Loan.
The Seller shall be required to deliver such Assignments for recording within
30 days of the Closing Date. The Seller shall furnish the Trustee, or its
designated agent, with a copy of each Assignment of Mortgage submitted for
recording. In the event that any such Assignment is lost or returned
unrecorded because of a defect therein, the Seller shall promptly have a
substitute Assignment prepared or have such defect cured, as the case may be,
and thereafter cause each such Assignment to be duly recorded.
The Depositor herewith delivers to the Trustee an executed copy of
the Mortgage Loan Purchase Agreement.
Each Servicer, solely with respect to the Mortgage Loans that it
services, shall forward to the Trustee original documents evidencing an
assumption, modification, consolidation or extension of any such Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the applicable Servicer shall provide the
Trustee with a certified true copy of any such document submitted for
recordation within two weeks of its execution, and shall provide the original
of any document submitted for recordation or a copy of such document certified
by the appropriate public recording office to be a true and complete copy of
the original within 270 days of its submission for recordation. In the event
that the applicable Servicer cannot provide a copy of such document certified
by the public recording office within such 270 day period, such Servicer shall
deliver to the Trustee, within such 270 day period, an Officers' Certificate
of such Servicer which shall (A) identify the recorded document, (B) state
that the recorded document has not been delivered to the Trustee due solely to
a delay caused by the public recording office, (C) state the amount of time
generally required by the applicable recording office to record and return a
document submitted for recordation, if known, and (D) specify the date the
applicable recorded document is expected to be delivered to the Trustee, if
known, and, upon receipt of a copy of such document certified by the public
recording office, such Servicer shall immediately deliver such document to the
Trustee. In the event that the appropriate public recording office will not
certify as to the accuracy of such document, the applicable Servicer shall
deliver a copy of such document certified by an officer of such Servicer to be
a true and complete copy of the original to the Trustee.
SECTION 2.02. Acceptance by Trustee.
The Trustee acknowledges the receipt, subject to the provisions of
Section 2.01 and subject to the review described below and any exceptions
noted on the exception report described in the next paragraph below, of the
documents referred to in Section 2.01 above and all other assets included in
the definition of "Trust Fund" and declares that it holds and will hold such
documents and the other documents delivered to it constituting a Mortgage
File, and that it holds or will hold all such assets and such other assets
included in the definition of "Trust Fund" in trust for the exclusive use and
benefit of all present and future Certificateholders.
The Trustee further agrees, for the benefit of the
Certificateholders, to review each Mortgage File delivered to it and to
certify and deliver to the Depositor, each Servicer and each Rating Agency in
substantially the form attached hereto as Exhibit G-1, within 45 days after
the Closing Date (or, with respect to any document delivered after the Startup
Day, within 45 days of receipt and with respect to any Qualified Substitute
Mortgage, within 45 days after the assignment thereof) that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or any Mortgage Loan specifically identified in the
exception report annexed thereto as not being covered by such certification),
(i) all documents required to be delivered to it pursuant Section 2.01 of this
Agreement are in its possession, (ii) such documents have been reviewed by it
and have not been mutilated, damaged or torn and relate to such Mortgage Loan
and (iii) based on its examination and only as to the foregoing, the
information set forth in the Mortgage Loan Schedule that corresponds to items
(i) and (ii) of the Mortgage Loan Schedule accurately reflects information set
forth in the Mortgage File. It is herein acknowledged that, in conducting such
review, the Trustee is under no duty or obligation to inspect, review or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the
represented purpose or that they have actually been recorded or that they are
other than what they purport to be on their face.
Prior to the first anniversary date of this Agreement, the Trustee
shall deliver to the Depositor and each Servicer a final certification in the
form annexed hereto as Exhibit G-2 evidencing the completeness of the Mortgage
Files, with any applicable exceptions noted thereon.
If, in the process of reviewing the Mortgage Files and making or
preparing, as the case may be, the certifications referred to above, the
Trustee finds any document or documents constituting a part of a Mortgage File
to be missing or defective in any material respect, at the conclusion of its
review the Trustee shall so notify the Seller, the Depositor and the related
Servicer. In addition, upon the discovery by the Seller, the Depositor or a
Servicer (or upon receipt by the Trustee of written notification of such
breach) of a breach of any of the representations and warranties made by the
Seller in the Mortgage Loan Purchase Agreement in respect of any Mortgage Loan
that materially adversely affects such Mortgage Loan or the interests of the
related Certificateholders in such Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties to this
Agreement.
The Depositor and the Trustee intend that the assignment and transfer
herein contemplated constitute a sale of the Mortgage Loans, the related
Mortgage Notes and the related documents, conveying good title thereto free
and clear of any liens and encumbrances, from the Depositor to the Trustee and
that such property not be part of the Depositor's estate or property of the
Depositor in the event of any insolvency by the Depositor. In the event that
such conveyance is deemed to be, or to be made as security for, a loan, the
parties intend that the Depositor shall be deemed to have granted and does
hereby grant to the Trustee a first priority perfected security interest in
all of the Depositor's right, title and interest in and to the Mortgage Loans,
the related Mortgage Notes and the related documents, and that this Agreement
shall constitute a security agreement under applicable law.
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by the
Seller.
(a) Upon discovery or receipt of written notice of any materially
defective document in, or that a document is missing from, a Mortgage File or
of the breach by the Seller of any representation, warranty or covenant under
the Mortgage Loan Purchase Agreement or in Section 2.04 or Section 2.08 hereof
in respect of any Mortgage Loan which materially adversely affects the value
of that Mortgage Loan or the interest therein of the Certificateholders, the
Trustee shall promptly notify the Seller and the related Servicer of such
defect, missing document or breach and request that the Seller deliver such
missing document or cure such defect or breach within 90 days from the date
that the Seller was notified of such missing document, defect or breach, and
if the Seller does not deliver such missing document or cure such defect or
breach in all material respects during such period, the Trustee shall enforce
the Seller's obligation under the Mortgage Loan Purchase Agreement and cause
the Seller to repurchase that Mortgage Loan from the Trust Fund at the
Purchase Price on or prior to the Determination Date following the expiration
of such 90 day period (subject to Section 2.03(e) below); provided, however,
that, in connection with any such breach that could not reasonably have been
cured within such 90 day period, if the Seller shall have commenced to cure
such breach within such 90 day period, the Seller shall be permitted to
proceed thereafter diligently and expeditiously to cure the same within the
additional period provided under the Mortgage Loan Purchase Agreement; and,
provided further, that, in the case of the breach of any representation,
warranty or covenant made by the Seller in Section 3.01 of the Mortgage Loan
Purchase Agreement, the Seller shall be obligated to cure such breach or
purchase the affected Mortgage Loans. The Purchase Price for the repurchased
Mortgage Loan shall be deposited in the applicable Collection Account, and the
Trustee, upon receipt of written certification from the related Servicer of
such deposit, shall release to the Seller the related Mortgage File and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as the Seller shall furnish to it and as shall be necessary
to vest in the Seller any Mortgage Loan released pursuant hereto and the
Trustee shall have no further responsibility with regard to such Mortgage File
(it being understood that the Trustee shall have no responsibility for
determining the sufficiency of such assignment for its intended purpose). In
lieu of repurchasing any such Mortgage Loan as provided above, the Seller may
cause such Mortgage Loan to be removed from the Trust Fund (in which case it
shall become a Deleted Mortgage Loan) and substitute one or more Qualified
Substitute Mortgage Loans in the manner and subject to the limitations set
forth in Section 2.03(d) below. It is understood and agreed that the
obligation of the Seller to cure or to repurchase (or to substitute for) any
Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the Seller respecting such
omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
The Trustee shall enforce the obligations of the Seller under the
Mortgage Loan Purchase Agreement including, without limitation, any obligation
of the Seller to purchase a Mortgage Loan on account of missing or defective
documentation or on account of a breach of a representation, warranty or
covenant as described in this Section 2.03(a).
(b) If pursuant to the provisions of Section 2.03(a), the Seller
repurchases or otherwise removes from the Trust Fund a Mortgage Loan that is a
MERS Mortgage Loan, the Seller shall either (i) cause MERS to execute and
deliver an Assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Seller and shall cause such Mortgage to be removed from
registration on the MERS(R) System in accordance with MERS' rules and
regulations or (ii) cause MERS to designate on the MERS(R) System the Seller
or its designee as the beneficial holder of such Mortgage Loan.
(c) Within 90 days of the earlier of discovery by a Servicer or
receipt of notice by such Servicer of the breach of any representation,
warranty or covenant of such Servicer set forth in Section 2.05 that
materially and adversely affects the interests of the Certificateholders in
any Mortgage Loan, such Servicer shall cure such breach in all material
respects.
(d) Any substitution of Qualified Substitute Mortgage Loans for
Deleted Mortgage Loans made pursuant to Section 2.03(a) above must be effected
prior to the last Business Day that is within two years after the Closing
Date. As to any Deleted Mortgage Loan for which the Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, such substitution shall be
effected by the Seller delivering to the Trustee, for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
Assignment to the Trustee, and such other documents and agreements, with all
necessary endorsements thereon, as are required by Section 2.01 hereof,
together with an Officers' Certificate stating that each such Qualified
Substitute Mortgage Loan satisfies the definition thereof and specifying the
Substitution Adjustment (as described below), if any, in connection with such
substitution; provided, however, that, in the case of any Qualified Substitute
Mortgage Loan that is a MERS Mortgage Loan, the Seller shall provide such
documents and take such other action with respect to such Qualified Substitute
Mortgage Loans as are required pursuant to Section 2.01 hereof. The Trustee
shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans
and, within 45 days thereafter, shall review such documents as specified in
Section 2.02 hereof and deliver to the related Servicer, with respect to such
Qualified Substitute Mortgage Loan or Loans, a certification substantially in
the form attached hereto as Exhibit G-1, with any exceptions noted thereon.
Within one year of the date of substitution, the Trustee shall deliver to the
related Servicer a certification substantially in the form of Exhibit G-2
hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with
any exceptions noted thereon. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution are not part of the
Trust Fund and will be retained by the Seller. For the month of substitution,
distributions to Certificateholders will reflect the collections and
recoveries in respect of such Deleted Mortgage Loan in the Due Period
preceding the month of substitution and the Depositor or the Seller, as the
case may be, shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Mortgage Loan. The Seller shall give or
cause to be given written notice to the Certificateholders that such
substitution has taken place, shall amend the Mortgage Loan Schedule to
reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage Loan or
Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the
Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or
Loans shall constitute part of the Trust Fund and shall be subject in all
respects to the terms of this Agreement and, in the case of a substitution
effected by the Seller, the Mortgage Loan Purchase Agreement, including, in
the case of a substitution effected by the Seller all representations and
warranties thereof included in the Mortgage Loan Purchase Agreement and all
representations and warranties thereof set forth in Section 2.04 hereof, in
each case as of the date of substitution.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans that are
serviced by a given Servicer, such Servicer shall determine the amount (each,
a "Substitution Adjustment"), if any, by which the aggregate Purchase Price of
all such Deleted Mortgage Loans exceeds the aggregate, as to each such
Qualified Substitute Mortgage Loan, of the principal balance thereof as of the
date of substitution, together with one month's interest on such principal
balance at the applicable Net Loan Rate. On the date of such substitution, the
Seller will deliver or cause to be delivered to such Servicer for deposit in
the related Collection Account an amount equal to the related Substitution
Adjustment, if any, and the Trustee, upon receipt of the related Qualified
Substitute Mortgage Loan or Loans and certification by such Servicer of such
deposit, shall release to the Seller the related Mortgage File or Files and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as the Seller shall deliver to it and as shall be
necessary to vest therein any Deleted Mortgage Loan released pursuant hereto.
In addition, the Seller shall obtain at its own expense and deliver
to the Trustee an Opinion of Counsel to the effect that such substitution
(either specifically or as a class of transactions) will not cause (a) any
federal tax to be imposed on the Trust Fund, including without limitation, any
federal tax imposed on "prohibited transactions" under Section 860F(a)(l) of
the Code or on "contributions after the startup date" under Section 860G(d)(l)
of the Code, or (b) the REMIC to fail to qualify as a REMIC at any time that
any Certificate is outstanding. If such Opinion of Counsel can not be
delivered, then such substitution may only be effected at such time as the
required Opinion of Counsel can be given.
(e) Upon discovery by the Seller, a Servicer or the Trustee that any
Mortgage Loan does not constitute a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code, the party discovering such fact shall within
two Business Days give written notice thereof to the other parties. In
connection therewith, the Seller shall repurchase or, subject to the
limitations set forth in Section 2.03(d), substitute one or more Qualified
Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the
earlier of discovery or receipt of such notice with respect to such affected
Mortgage Loan. Any such repurchase or substitution shall be made in the same
manner as set forth in Section 2.03(a) above, if made by the Seller. The
Trustee shall reconvey to the Seller the Mortgage Loan to be released pursuant
hereto in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty.
SECTION 2.04. Representations and Warranties of the Seller with
Respect to the Mortgage Loans.
The Seller hereby represents and warrants to the Trustee for the
benefit of the Certificateholders that, as of the Closing Date or as of such
other date specifically provided herein, the representations and warranties
made by the Seller pursuant to Section 3.01 of the Mortgage Loan Purchase
Agreement are hereby being made to the Trustee and are true and correct as of
the Closing Date.
With respect to the representations and warranties incorporated in
this Section 2.04 that are made to the best of the Seller's knowledge or as to
which the Seller has no knowledge, if it is discovered by the Depositor, the
Seller, a Servicer or the Trustee that the substance of such representation
and warranty is inaccurate and such inaccuracy materially and adversely
affects the value of the related Mortgage Loan or the interest therein of the
Certificateholders then, notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty being inaccurate
at the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
Within 90 days of its discovery or its receipt of notice of any such
missing or materially defective documentation or any such breach of a
representation or warranty, the Seller shall promptly deliver such missing
document or cure such defect or breach in all material respects or, in the
event such defect or breach cannot be cured, the Seller shall repurchase the
affected Mortgage Loan or cause the removal of such Mortgage Loan from the
Trust Fund and substitute for it one or more Qualified Substitute Mortgage
Loans, in either case, in accordance with Section 2.03 hereof.
It is understood and agreed that the representations and warranties
incorporated in this Section 2.04 shall survive delivery of the Mortgage Files
to the Trustee and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or assignment. Upon
discovery by any of the Depositor, a Servicer, the Seller or the Trustee of a
breach of any of the foregoing representations and warranties which materially
and adversely affects the value of any Mortgage Loan or the interests therein
of the Certificateholders, the party discovering such breach shall give prompt
written notice to the other parties, and in no event later than two Business
Days from the date of such discovery. It is understood and agreed that the
obligations of the Seller set forth in Section 2.03(a) hereof to cure,
substitute for or repurchase a related Mortgage Loan pursuant to the Mortgage
Loan Purchase Agreement constitute the sole remedies available to the
Certificateholders or to the Trustee on their behalf respecting a breach of
the representations and warranties incorporated in this Section 2.04.
SECTION 2.05. Representations, Warranties and Covenants of the
Servicers.
(a) Each of Countrywide and ABN AMRO, as a Servicer, hereby makes on
behalf of itself only the representations and warranties set forth in Schedule
II hereto, and by this reference incorporated herein, to the Depositor and the
Trustee, as of the Closing Date or as of such date specifically provided
therein.
(b) Each Servicer hereby covenants to the Depositor and the Trustee
for itself only as follows:
(i) the Servicer shall comply in the performance of its
obligations under this Agreement in all material respects with all
reasonable rules and requirements of the insurer under each
insurance policy in respect of a Mortgage Loan that it services; and
(ii) neither this Agreement nor any 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 Servicer pursuant to this Agreement
contains any untrue statement of a material fact.
(c) It is understood and agreed that the representations, warranties
and covenants set forth in this Section 2.05 shall survive delivery of the
Mortgage Files to the Trustee and shall inure to the benefit of the Trustee,
the Depositor and the Certificateholders. Upon discovery by any of the
Depositor, any Servicer, the Seller or the Trustee of a breach of any of the
foregoing representations, warranties and covenants which materially and
adversely affects the value of any Mortgage Loan or the interests therein of
the Certificateholders, the party discovering such breach shall give prompt
written notice (but in no event later than two Business Days following such
discovery) to the Depositor, each Servicer, the Seller and the Trustee.
SECTION 2.06. Representations and Warranties of the Depositor.
The Depositor represents and warrants to the Trust and the Trustee on
behalf of the Certificateholders as follows:
(i) This agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general an except as such
enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity);
(ii) Immediately prior to the sale and assignment by the
Depositor to the Trustee on behalf of the Trust of each Mortgage
Loan, the Depositor had good and marketable title to each Mortgage
Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other
interest of any nature;
(iii) As of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on
behalf of the Trust;
(iv) The Depositor has not transferred the Mortgage Loans to
the Trustee on behalf of the Trust with any intent to hinder, delay
or defraud any of its creditors;
(v) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with full corporate power and authority to own its assets
and conduct its business as presently being conducted;
(vi) The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is
a party or by which it or its properties may be bound, which default
might result in any material adverse changes in the financial
condition, earnings, affairs or business of the Depositor or which
might materially and adversely affect the properties or assets,
taken as a whole, of the Depositor;
(vii) The execution, delivery and performance of this Agreement
by the Depositor, and the consummation of the transactions
contemplated thereby, do not and will not result in a material
breach or violation of any of the terms or provisions of, or, to the
knowledge of the Depositor, constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party or by
which the Depositor is bound or to which any of the property or
assets of the Depositor is subject, nor will such actions result in
any violation of the provisions of the certificate of incorporation
or by-laws of the Depositor or, to the best of the Depositor's
knowledge without independent investigation, any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its properties
or assets (except for such conflicts, breaches, violations and
defaults as would not have a material adverse effect on the ability
of the Depositor to perform its obligations under this Agreement);
(viii) To the best of the Depositor's knowledge without any
independent investigation, no consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or
the consummation by the Depositor of the other transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, registrations or qualifications as (a) may be
required under State securities or "blue sky" laws, (b) have been
previously obtained or (c) the failure of which to obtain would not
have a material adverse effect on the performance by the Depositor
of its obligations under, or the validity or enforceability of, this
Agreement; and
(ix) There are no actions, proceedings or investigations
pending before or, to the Depositor's knowledge, threatened by any
court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the
subject: (a) which if determined adversely to the Depositor would
have a material adverse effect on the business, results of
operations or financial condition of the Depositor; (b) asserting
the invalidity of this Agreement or the Certificates; (c) seeking to
prevent the issuance of the Certificates or the consummation by the
Depositor of any of the transactions contemplated by this Agreement,
as the case may be; or (d) which might materially and adversely
affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement.
SECTION 2.07. Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery to it of the Mortgage Files, subject to the provisions of
Sections 2.01 and 2.02 hereof, together with the assignment to it of all other
assets included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed, authenticated and delivered to or upon
the order of the Depositor, the Certificates in authorized denominations. The
interests evidenced by the Certificates constitute the entire beneficial
ownership interest in the Trust Fund.
SECTION 2.08. Representations and Warranties of the Seller.
The Seller hereby represents and warrants to the Trust and the
Trustee on behalf of the Certificateholders that as of the Closing Date or as
of such date specifically provided herein:
(i) The Seller is duly organized, validly existing and in good
standing and has the power and authority to own its assets and to
transact the business in which it is currently engaged. The Seller
is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by it
or properties owned or leased by it requires such qualification and
in which the failure to so qualify would have a material adverse
effect on (a) its business, properties, assets or condition
(financial or other), (b) the performance of its obligations under
this Agreement, or (c) the value or marketability of the related
Mortgage Loans.
(ii) The Seller has the power and authority to make, execute,
deliver and perform this Agreement and to consummate all of the
transactions contemplated hereunder and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement which is part of its official records. When executed and
delivered, this Agreement will constitute the Seller's legal, valid
and binding obligations enforceable in accordance with its terms,
except as enforcement of such terms may be limited by (1)
bankruptcy, insolvency, reorganization, receivership, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and the rights of creditors of federally insured financial
institutions and by the availability of equitable remedies, (2)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (3) public policy
considerations underlying the securities laws, to the extent that
such policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide
indemnification from securities laws liabilities.
(iii) The Seller holds all necessary licenses, certificates and
permits from all governmental authorities necessary for conducting
its business as it is currently conducted. It is not required to
obtain the consent of any other party or any consent, license,
approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(iv) The execution, delivery and performance of this Agreement
by the Seller will not conflict with or result in a breach of, or
constitute a default under, any provision of any existing law or
regulation or any order or decree of any court applicable to the
Seller or any of its properties or any provision of its articles of
incorporation, charter or by-laws, or constitute a material breach
of, or result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to any mortgage,
indenture, contract or other agreement to which it is a party or by
which it may be bound.
(v) No certificate of an officer, written statement or written
report delivered pursuant to the terms hereof of the Seller contains
any untrue statement of a material fact or omits to state any
material fact necessary to make the certificate, statement or report
not misleading.
(vi) The transactions contemplated by this Agreement are in the
ordinary course of the Seller's business.
(vii) The Seller is not insolvent, nor will the Seller be made
insolvent by the transfer of the Mortgage Loans to the Depositor,
nor is the Seller aware of any pending insolvency of the Seller.
(viii) The Seller is not in violation of, and the execution and
delivery of this Agreement by the Seller and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court, or any
order or regulation of any federal, state, municipal or governmental
agency having jurisdiction, which violation would materially and
adversely affect the Seller's financial condition (financial or
otherwise) or operations, or materially and adversely affect the
performance of any of its duties hereunder.
(ix) There are no actions or proceedings against the Seller, or
pending or, to its knowledge, threatened, before any court,
administrative agency or other tribunal; nor, to the Seller's
knowledge, are there any investigations (i) that, if determined
adversely, would prohibit the Seller from entering into this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) that, if
determined adversely, would prohibit or materially and adversely
affect the Seller's ability to perform any of its respective
obligations under, or the validity or enforceability of, this
Agreement.
(x) The Seller did not transfer the Mortgage Loans to the
Depositor with any intent to hinder, delay or defraud any of its
creditors.
(xi) The Seller acquired title to the Mortgage Loans in good
faith, without notice of any adverse claims.
(xii) The transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by the Seller to the Depositor are not
subject to the bulk transfer laws or any similar statutory
provisions in effect in any applicable jurisdiction.
SECTION 2.09. Covenants of the Seller. The Seller hereby covenants
that, except for the transfer hereunder, the Seller will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any lien on any Mortgage Loan, or any interest therein; the
Seller will notify the Trustee, as assignee of the Depositor, and the related
Servicer of the existence of any lien on any Mortgage Loan immediately upon
discovery thereof, and the Seller will defend the right, title and interest of
the Trust, as assignee of the Depositor, in, to and under the Mortgage Loans,
against all claims of third parties claiming through or under the Seller;
provided, however, that nothing in this Section 2.09 shall prevent or be
deemed to prohibit the Seller from suffering to exist upon any of the Mortgage
Loans any liens for municipal or other local taxes and other governmental
charges if such taxes or governmental charges shall not at the time be due and
payable or if the Seller shall currently be contesting the validity thereof in
good faith by appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicers to Act as Servicers.
The obligations of each of Countrywide and ABN AMRO hereunder to
service and administer the Mortgage Loans shall be limited to the Countrywide
Loans and the ABN AMRO Loans, respectively; and with respect to the duties and
obligations of each Servicer, references herein to "Mortgage Loans" or
"related Mortgage Loans" shall be limited to the Countrywide Loans (and the
related proceeds thereof and related REO Properties), in the case of
Countrywide, and the ABN AMRO Loans (and the related proceeds thereof and
related REO Properties), in the case of ABN AMRO; and in no event shall any
Servicer have any responsibility or liability with respect to any of the other
Mortgage Loans (other than a Mortgage Loan with respect to which such Servicer
acts as a subservicer).
Each Servicer shall service and administer the related Mortgage Loans
on behalf of the Trustee and in the best interests of and for the benefit of
the Certificateholders (as determined by such Servicer in its reasonable
judgment) in accordance with the terms of this Agreement and the related
Mortgage Loans and, to the extent consistent with such terms, in the same
manner in which it services and administers similar mortgage loans for its own
portfolio, giving due consideration to customary and usual standards of
practice of mortgage lenders and loan servicers administering similar mortgage
loans but without regard to:
(i) any relationship that such Servicer, any Sub-Servicer or
any Affiliate of such Servicer or any Sub-Servicer may have with the
related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by such
Servicer or any Affiliate of such Servicer;
(iii) such Servicer's obligation to make Advances or Servicing
Advances; or
(iv) such Servicer's or any Sub-Servicer's right to receive
compensation for its services hereunder or with respect to any
particular transaction.
To the extent consistent with the foregoing, each Servicer shall seek
to maximize the timely and complete recovery of principal and interest on the
Mortgage Notes. Subject only to the above-described servicing standards and
the terms of this Agreement and of the related Mortgage Loans, each Servicer
shall have full power and authority, acting alone or through Sub-Servicers as
provided in Section 3.02 hereof, to do or cause to be done any and all things
in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, each
Servicer in its own name or in the name of a Sub-Servicer is hereby authorized
and empowered by the Trustee, when such Servicer believes it appropriate in
its best judgment in accordance with the servicing standards set forth above,
to execute and deliver, on behalf of the Certificateholders and the Trustee,
and upon notice to the Trustee, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the related Mortgage Loans and the
related Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on
behalf of the Trustee and Certificateholders. Each Servicer shall service and
administer the related Mortgage Loans in accordance with applicable state and
federal law and shall provide to the Mortgagors any reports required to be
provided to them thereby. Each Servicer shall also comply in the performance
of this Agreement with all reasonable rules and requirements of each insurer
under any standard hazard insurance policy. Subject to Section 3.17 hereof,
the Trustee shall execute, at the written request of a Servicer, and furnish
to such Servicer and any related Sub-Servicer any special or limited powers of
attorney and other documents prepared by such Servicer and necessary or
appropriate to enable such Servicer or any related Sub-Servicer to carry out
their servicing and administrative duties hereunder; provided, however, such
limited powers of attorney or other documents shall be prepared by such
Servicer and submitted to the Trustee for execution. The Trustee shall not be
liable for the actions of any Servicer or any Sub-Servicer under such powers
of attorney.
Subject to Section 3.09 hereof, in accordance with the standards of
the preceding paragraph, each Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes
and assessments on the related Mortgaged Properties, which advances shall be
Servicing Advances reimbursable in the first instance from related collections
from the Mortgagors pursuant to Section 3.09, and further as provided in
Section 3.11 hereof. Any cost incurred by a Servicer or by related
Sub-Servicers in effecting the timely payment of taxes and assessments on a
Mortgaged Property shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid Principal Balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
Notwithstanding anything in this Agreement to the contrary, no
Servicer may make any future advances with respect to a Mortgage Loan and no
Servicer shall (i) permit any modification with respect to any Mortgage Loan
that would change the Mortgage Rate, reduce or increase the Principal Balance
(except for reductions resulting from actual payments of principal) or change
the final maturity date on such Mortgage Loan (unless, as provided in Section
3.07 hereof, the Mortgagor is in default with respect to the Mortgage Loan or
such default is, in the judgment of the Servicer, reasonably foreseeable) or
(ii) permit any modification, waiver or amendment of any term of any Mortgage
Loan that would both (A) effect an exchange or reissuance of such Mortgage
Loan under Section 1001 of the Code (or Treasury regulations promulgated
thereunder) and (B) cause the REMIC to fail to qualify as a REMIC under the
Code or the imposition of any tax on "prohibited transactions" or
"contributions after the startup date" under the REMIC Provisions.
Each Servicer may delegate its responsibilities under this Agreement;
provided, however, that no such delegation shall release such Servicer from
the responsibilities or liabilities arising under this Agreement.
SECTION 3.02. Sub-Servicing Agreements Between Servicers and
Sub-Servicers.
(a) Each Servicer may enter into Sub-Servicing Agreements with
Sub-Servicers for the servicing and administration of the related Mortgage
Loans; provided, however, that such agreements would not result in a
withdrawal or a downgrading by the Rating Agencies of the rating on any Class
of Certificates.
Each Sub-Servicer shall be (i) authorized to transact business in the
state or states where the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Sub-Servicer to perform its obligations hereunder and under the Sub-Servicing
Agreement and (ii) a mortgage servicer approved by Fannie Mae or Freddie Mac.
Each Sub-Servicing Agreement must impose on the Sub-Servicer requirements
conforming to the provisions set forth in Section 3.08 hereof and provide for
servicing of the Mortgage Loans consistent with the terms of this Agreement.
Each Servicer will examine each related Sub-Servicing Agreement and will be
familiar with the terms thereof. The terms of any Sub-Servicing Agreement will
not be inconsistent with any of the provisions of this Agreement. Each
Servicer and its Sub-Servicers may enter into and make amendments to the
related Sub-Servicing Agreements or enter into different forms of
Sub-Servicing Agreements; provided, however, that any such amendments or
different forms shall be consistent with and not violate the provisions of
this Agreement, and that no such amendment or different form shall be made or
entered into which could be reasonably expected to be materially adverse to
the interests of the Certificateholders without the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights; provided, further,
that the consent of the Holders of Certificates entitled to at least 66% of
the Voting Rights shall not be required (i) to cure any ambiguity or defect in
a Sub-Servicing Agreement, (ii) to correct, modify or supplement any
provisions of a Sub-Servicing Agreement, or (iii) to make any other provisions
with respect to matters or questions arising under a Sub-Servicing Agreement,
which, in each case, shall not be inconsistent with the provisions of this
Agreement. Any variation without the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights from the provisions set forth in
Section 3.08 hereof relating to insurance or priority requirements of
Sub-Servicing Accounts, or credits and charges to Sub-Servicing Accounts or
the timing and amount of remittances by a Sub-Servicer to the related
Servicer, are conclusively deemed to be inconsistent with this Agreement and
therefore prohibited. Each Servicer shall deliver to the Trustee copies of all
of its Sub-Servicing Agreements, and any amendments or modifications thereof,
promptly upon such Servicer's execution and delivery of such instruments.
(b) As part of its servicing activities hereunder, each Servicer, for
the benefit of the Trustee and the Certificateholders, shall enforce the
obligations of each related Sub-Servicer under the related Sub-Servicing
Agreement including, without limitation, any obligation to make advances in
respect of delinquent payments as required by a Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements, and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as such Servicer, in its good faith business judgment, would require were
it the owner of the related Mortgage Loans. Each Servicer shall pay the costs
of such enforcement at its own expense, and shall be reimbursed therefor only
(i) from a general recovery resulting from such enforcement, to the extent, if
any, that such recovery exceeds all amounts due in respect of the related
Mortgage Loans, or (ii) from a specific recovery of costs, expenses or
attorneys' fees against the party against whom such enforcement is directed.
SECTION 3.03. Successor Sub-Servicers.
Each Servicer shall be entitled to terminate any of its Sub-Servicing
Agreements and the rights and obligations of any related Sub-Servicer pursuant
to any of its Sub-Servicing Agreements in accordance with the terms and
conditions of such Sub-Servicing Agreement. In the event of termination of any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall be assumed
simultaneously by the related Servicer without any act or deed on the part of
such Sub-Servicer or such Servicer, and such Servicer either shall service
directly the related Mortgage Loans or shall enter into a Sub-Servicing
Agreement with a successor Sub-Servicer which qualifies under Section 3.02
hereof.
Any Sub-Servicing Agreement shall include the provision that such
agreement may be immediately terminated by the related Servicer or the Trustee
(if the Trustee is acting as successor Servicer to such Servicer) without fee,
in accordance with the terms of this Agreement, in the event that such
Servicer (or the Trustee, if such party is then acting as successor Servicer
to such Servicer) shall, for any reason, no longer be a Servicer (including
termination due to a Servicer Event of Termination).
SECTION 3.04. Liability of the Servicers.
Notwithstanding any Sub-Servicing Agreement or the provisions of this
Agreement relating to agreements or arrangements between a Servicer and a
Sub-Servicer or reference to actions taken through a Sub-Servicer or
otherwise, each Servicer shall remain obligated and primarily liable to the
Trustee and the Certificateholders for the servicing and administering of the
related Mortgage Loans in accordance with the provisions of Section 3.01
hereof without diminution of such obligation or liability by virtue of any
such Sub-Servicing Agreements or arrangements or by virtue of indemnification
from the Sub-Servicer and to the same extent and under the same terms and
conditions as if such Servicer alone were servicing and administering the
related Mortgage Loans. Each Servicer shall be entitled to enter into any
agreement with a Sub-Servicer for indemnification of such Servicer by such
Sub-Servicer and nothing contained in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.05. No Contractual Relationship Between Sub-Servicers and
the Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to any Mortgage Loans involving a
Sub-Servicer in its capacity as such shall be deemed to be between the
Sub-Servicer and the related Servicer alone, and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to the
Sub-Servicer except as set forth in Section 3.06 hereof. Each Servicer shall
be solely liable for all fees owed by it to any of its Sub-Servicers,
irrespective of whether such Servicer's compensation pursuant to this
Agreement is sufficient to pay such fees.
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements
by Trustee.
In the event that a Servicer shall for any reason no longer be a
Servicer (including by reason of the occurrence of a Servicer Event of
Termination), the Trustee shall thereupon assume all of the rights and
obligations of such Servicer under each Sub-Servicing Agreement into which
such Servicer may have entered, unless the Trustee elects to terminate any
such Sub-Servicing Agreement in accordance with its terms as provided in
Section 3.03 hereof. Upon such assumption, the Trustee (or the successor
Servicer to such departing Servicer appointed pursuant to Section 7.02 hereof)
shall be deemed, subject to Section 3.03, to have assumed all of such
departing Servicer's interest therein and to have replaced such departing
Servicer as a party to each related Sub-Servicing Agreement to the same extent
as if each such Sub-Servicing Agreement had been assigned to the assuming
party, except that (i) such departing Servicer shall not thereby be relieved
of any liability or obligations under any related Sub-Servicing Agreement that
arose before it ceased to be a Servicer and (ii) neither the Trustee nor any
successor Servicer shall be deemed to have assumed any liability or obligation
of such departing Servicer that arose before it ceased to be a Servicer.
Each Servicer at its expense shall deliver to the assuming party all
documents and records relating to each of its Sub-Servicing Agreements and the
related Mortgage Loans then being serviced and an accounting of amounts
collected and held by or on behalf of it, and otherwise use its best efforts
to effect the orderly and efficient transfer of such Sub-Servicing Agreements
to the assuming party.
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
Each Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the related Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement
and the terms and provisions of any applicable insurance policies, follow such
collection procedures as it would follow with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Consistent with
the foregoing, each Servicer may in its discretion (i) waive any late payment
charge or, if applicable, any penalty interest, or (ii) extend the due dates
for the Monthly Payments due on a Mortgage Note for a period of not greater
than 180 days; provided, however, that any extension pursuant to clause (ii)
above shall not affect the amortization schedule of any Mortgage Loan for
purposes of any computation hereunder, except as provided below. In the event
of any such arrangement pursuant to clause (ii) above, the related Servicer
shall make timely advances on such Mortgage Loan during such extension
pursuant to Section 4.04 hereof and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangement. Notwithstanding the foregoing, in the event that any Mortgage
Loan is in default or, in the judgment of the related Servicer, such default
is reasonably foreseeable, such Servicer, consistent with the standards set
forth in Section 3.01 hereof, may also waive, modify or vary any term of such
Mortgage Loan (including modifications that would change the Mortgage Rate,
forgive the payment of principal or interest or extend the final maturity date
of such Mortgage Loan), accept payment from the related Mortgagor of an amount
less than the Stated Principal Balance in final satisfaction of such Mortgage
Loan, or consent to the postponement of strict compliance with any such term
or otherwise grant indulgence to any Mortgagor (any and all such waivers,
modifications, variances, forgiveness of principal or interest, postponements,
or indulgences collectively referred to herein as "forbearance"); provided,
however, that in no event shall a Servicer grant any such forbearance (other
than as permitted by the second sentence of this Section) with respect to any
one Mortgage Loan more than once in any 12-month period or more than three
times over the life of such Mortgage Loan. A Servicer's analysis supporting
any forbearance and the conclusion that any forbearance meets the standards of
Section 3.01 hereof (including the standard that such forbearance will
maximize the timely and complete recovery of principal and interest on the
Mortgage Notes) shall be reflected in writing in the related Mortgage File.
SECTION 3.08. Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage Loan
pursuant to a Sub-Servicing Agreement, the Sub-Servicer will be required to
establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
comply with all requirements of this Agreement relating to the Collection
Account. The Sub-Servicer shall deposit in the clearing account in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Sub-Servicer's receipt thereof, all
proceeds of Mortgage Loans received by the Sub-Servicer less its servicing
compensation to the extent permitted by the Sub-Servicing Agreement, and shall
thereafter deposit such amounts in the Sub-Servicing Account, in no event more
than two Business Days after the receipt of such amounts. The Sub-Servicer
shall thereafter deposit such proceeds in the applicable Collection Account or
remit such proceeds to the related Servicer for deposit in the applicable
Collection Account not later than two Business Days after the deposit of such
amounts in the Sub-Servicing Account. For purposes of this Agreement, a
Servicer shall be deemed to have received payments on the related Mortgage
Loans when its Sub-Servicer receives such payments.
SECTION 3.09. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
Each Servicer shall establish and maintain, or cause to be
established and maintained, one or more accounts (the "Servicing Accounts"),
into which all Escrow Payments collected on account of the related Mortgage
Loans shall be deposited and retained. Servicing Accounts shall be Eligible
Accounts. Each Servicer shall deposit in the clearing account in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after such Servicer's receipt thereof, all Escrow
Payments collected on account of the related Mortgage Loans and shall
thereafter deposit such Escrow Payments in the Servicing Accounts, in no event
more than two Business Days after the receipt of such Escrow Payments, all
Escrow Payments collected on account of the related Mortgage Loans for the
purpose of effecting the timely payment of any such items as required under
the terms of this Agreement. Withdrawals of amounts from a Servicing Account
may be made only to (i) effect payment of taxes, assessments, hazard insurance
premiums, and comparable items in a manner and at a time that assures that the
lien priority of the Mortgage is not jeopardized (or, with respect to the
payment of taxes, in a manner and at a time that avoids the loss of the
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien); (ii) reimburse the related Servicer (or a related Sub-Servicer to the
extent provided in the related Sub-Servicing Agreement) out of related
collections for any Servicing Advances made pursuant to Section 3.01 hereof
(with respect to taxes and assessments) and Section 3.14 hereof (with respect
to hazard insurance); (iii) refund to Mortgagors any sums as may be determined
to be overages; (iv) pay interest, if required and as described below, to
Mortgagors on balances in the Servicing Account; or (v) clear and terminate
the Servicing Account at the termination of the related Servicer's obligations
and responsibilities in respect of the related Mortgage Loans under this
Agreement in accordance with Article X hereof. Each Servicer will be
responsible for the administration of its Servicing Accounts and will be
obligated to make Servicing Advances to such accounts when and as necessary to
avoid the lapse of insurance coverage on the Mortgaged Property, or which such
Servicer knows, or in the exercise of the required standard of care of the
Servicers hereunder should know, is necessary to avoid the loss of the
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien. If any such payment has not been made and the related Servicer receives
notice of a tax lien with respect to the Mortgage being imposed, such Servicer
will, within ten business days of such notice, advance or cause to be advanced
funds necessary to discharge such lien on the Mortgaged Property. As part of
its servicing duties, a Servicer or any of its Sub-Servicers shall pay to the
related Mortgagors interest on funds in the related Servicing Accounts, to the
extent required by law and, to the extent that interest earned on funds in
such Servicing Accounts is insufficient, to pay such interest from its or
their own funds, without any reimbursement therefor.
SECTION 3.10. Collection Accounts and Distribution Account.
(a) On behalf of the Trust Fund, each Servicer shall establish and
maintain, or cause to be established and maintained, one or more accounts
(each such account or set of accounts, for any given Servicer, a "Collection
Account"), held in trust for the benefit of the Trustee and the
Certificateholders. Each Servicer shall deposit into its Collection Account,
no later than two Business Days following the Closing Date, any amounts
representing payments of principal due in respect of the related Mortgage
Loans after the Cut-off Date and received by such Servicer prior to the
Closing Date and any amounts representing payments of interest due in respect
of the related Mortgage Loans after the Cut-off Date and received by such
Servicer prior to the Closing Date. Thereafter, on behalf of the Trust Fund,
each Servicer shall deposit or cause to be deposited in the clearing account
in which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and
in no event more than one Business Day after such Servicer's receipt thereof,
and shall thereafter deposit in the related Collection Account, in no event
more than two Business Days after such Servicer's receipt thereof, as and when
received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than
in respect of principal or interest on the related Mortgage Loans due on or
before the Cut-off Date) or payments (other than Principal Prepayments)
received by it on or prior to the Cut-off Date but allocable to a Due Period
subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments on the related Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each related Mortgage Loan;
(iii) all Insurance Proceeds and Liquidation Proceeds (other
than proceeds collected in respect of any particular REO Property
and amounts paid in connection with a purchase of related Mortgage
Loans and REO Properties pursuant to Section 10.01 hereof);
(iv) any amounts required to be deposited pursuant to Section
3.12 hereof in connection with any losses realized on Permitted
Investments with respect to funds held in the related Collection
Account;
(v) any amounts required to be deposited by such Servicer
pursuant to the second paragraph of Section 3.14(a) hereof in
respect of any blanket policy deductibles;
(vi) all proceeds of any related Mortgage Loan repurchased or
purchased in accordance with Section 2.03 or Section 10.01 hereof;
(vii) all amounts required to be deposited in connection with
Substitution Adjustments pursuant to Section 2.03 hereof;
(viii) any Advances in respect of related Mortgage Loans, as
required pursuant to Section 4.05 hereof; and
(ix) any amounts to be paid in connection with a purchase of
related Mortgage Loans and REO Properties pursuant to Section
3.16(c) hereof.
The foregoing requirements, with respect to each Servicer, for
deposit in the related Collection Account shall be exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments in the nature of late payment charges, assumption fees, insufficient
funds charges, prepayment premiums or other ancillary income, with respect to
any Mortgage Loan, need not be deposited by the related Servicer in such
Servicer's Collection Account and may be retained by such Servicer as
additional compensation. In the event that a Servicer shall deposit in its
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from such Collection Account, any provision
herein to the contrary notwithstanding.
(b) On behalf of the Trust Fund, the Trustee shall establish and
maintain one or more accounts (such account or accounts, the "Distribution
Account"), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, each Servicer shall deliver
to the Trustee in immediately available funds for deposit in the Distribution
Account on or before the Close of Business New York time on the Servicer
Remittance Date, that portion of the Available Funds (calculated without
regard to the references in the definition thereof to amounts that may be
withdrawn from the Distribution Account) for the related Distribution Date
then on deposit in the related Collection Account.
(c) Funds in the Collection Accounts may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12
hereof. Each Servicer shall give notice to the Trustee of the location of the
Collection Account maintained by it when established and prior to any change
thereof. The Trustee shall give notice to each Servicer and the Depositor of
the location of the Distribution Account when established and prior to any
change thereof.
(d) Funds held in a Collection Account at any time may be delivered
by the related Servicer to the Trustee for deposit in an account (which may be
the Distribution Account and must satisfy the standards for the Distribution
Account as set forth in the definition thereof) and for all purposes of this
Agreement shall be deemed to be a part of such Collection Account; provided,
however, that the Trustee shall have the sole authority to withdraw any funds
held in the Distribution Account pursuant to this subsection (d). In the event
that a Servicer shall deliver to the Trustee for deposit in the Distribution
Account any amount not required to be deposited therein, it may at any time
request that the Trustee withdraw such amount from the Distribution Account
and remit to such Servicer any such amount, any provision herein to the
contrary notwithstanding. In addition, each Servicer, with respect to items
(i) through (iii) below, shall deliver to the Trustee from time to time for
deposit, and the Trustee, with respect to items (i) through (iii) below, shall
so deposit, in the Distribution Account:
(i) any amounts required to be deposited pursuant to Section
3.23(d) or (f) hereof in connection with any REO Property;
(ii) any amounts to be paid in connection with a purchase of
related Mortgage Loans and REO Properties pursuant to Section 10.01
hereof; and
(iii) any Compensating Interest to be deposited pursuant to
Section 3.24 hereof in connection with any Prepayment Interest
Shortfall in respect of any related Mortgage Loans.
(e) [Reserved].
(f) Each Servicer shall deposit in its Collection Account any amounts
required to be deposited pursuant to Section 3.12(b) hereof in connection with
losses realized on Permitted Investments with respect to funds held in such
Collection Account.
SECTION 3.11. Withdrawals from the Collection Accounts and
Distribution Account.
(a) Each Servicer shall, from time to time, make withdrawals from its
Collection Account for any of the following purposes or as described in
Section 4.05 hereof:
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be so remitted pursuant to Section
3.10(b) hereof or permitted to be so remitted pursuant to the first
sentence of Section 3.10(d) hereof;
(ii) subject to Section 3.16(d) hereof, to reimburse such
Servicer for Advances, but only to the extent of amounts received
which represent Late Collections (net of the related Servicing Fees)
of Monthly Payments, Liquidation Proceeds and Insurance Proceeds on
related Mortgage Loans with respect to which such Advances were made
in accordance with the provisions of Section 4.05;
(iii) subject to Section 3.16(d), to pay such Servicer or any
related Sub-Servicer (a) any unpaid Servicing Fees, (b) any
unreimbursed Servicing Advances with respect to each related
Mortgage Loan, but only to the extent of any Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to
such related Mortgage Loan, and (c) any Servicing Advances with
respect to the final liquidation of a related Mortgage Loan that are
Nonrecoverable Advances, but only to the extent that Late
Collections, Liquidation Proceeds and Insurance Proceeds received
with respect to such Mortgage Loan are insufficient to reimburse
such Servicer or any related Sub-Servicer for Servicing Advances;
(iv) to pay to such Servicer as servicing compensation (in
addition to the Servicing Fee) on the Servicer Remittance Date any
interest or investment income earned on funds deposited in the
related Collection Account;
(v) to pay to such Servicer or the Seller, as applicable, with
respect to each related Mortgage Loan that has previously been
purchased or replaced pursuant to Section 2.03 or Section 3.16(c)
hereof all amounts received thereon subsequent to the date of
purchase or substitution, as the case may be;
(vi) to reimburse such Servicer for any Advance previously made
by it which such Servicer has determined to be a Nonrecoverable
Advance in accordance with the provisions of Section 4.05;
(vii) to pay or to reimburse such Servicer for Servicing
Advances made by it in respect of expenses incurred in connection
with any related Mortgage Loan pursuant to Section 3.16(b) hereof;
(viii) to pay or reimburse the Seller and the Trustee pursuant
to Section 9.01(c) and 9.01(f), respectively, and
(ix) to clear and terminate such Collection Account pursuant to
Section 10.01 hereof.
Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the related Collection Account, to the extent held by or on
behalf of it, pursuant to subclauses (ii), (iii), (iv), (v), (vi) and (vii)
above. Each Servicer shall provide written notification to the Trustee, on or
prior to the next succeeding Servicer Remittance Date, upon making any
withdrawals from the related Collection Account pursuant to subclause (vi)
above; provided, however, that an Officers' Certificate in the form described
under Section 4.05(d) shall suffice for such written notification to the
Trustee in respect hereof.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account, for any of the following purposes, without priority:
(i) to make distributions in accordance with Sections 4.01 and
8.05 hereof;
(ii) to pay any amounts in respect of taxes pursuant to Section
9.01(g) hereof; and
(iii) to clear and terminate the Distribution Account pursuant
to Section 10.01 hereof.
SECTION 3.12. Investment of Funds in the Collection Accounts.
(a) Each Servicer may direct any depository institution maintaining
its Collection Account (each such account, for purposes of this Section 3.12,
an "Investment Account"), to invest the funds in such Investment Account in
one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. Funds in the Distribution Account may be
held uninvested. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment Account
shall be made in the name of the Trustee (in its capacity as such), or in the
name of a nominee of the Trustee. The Trustee may be entitled to sole
possession or control (except with respect to investment direction of funds
held in any Collection Account and any income and gain realized thereon) over
each such investment, and any certificate, securities entitlement or other
instrument evidencing any such investment shall be delivered directly to the
Trustee or its agent, together with any document of transfer necessary to
transfer title to such investment to the Trustee or its nominee. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the related Servicer shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (A) all amounts then payable thereunder and (B) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by a Responsible Officer of the Trustee that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and any REO Account held by or on behalf
of a Servicer shall be for the benefit of such Servicer and shall be subject
to its withdrawal in accordance with Section 3.11 or Section 3.23 hereof, as
applicable. Each Servicer shall deposit in the related Collection Account or
any REO Account, as applicable, the amount of any loss of principal incurred
in respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All benefit derived from funds deposited in the Distribution
Account shall be for the benefit of the Trustee.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.01 and Section
8.02(a)(v), upon the request of the Holders of Certificates representing more
than 50% of the Voting Rights allocated to any Class of Certificates, shall
take such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
SECTION 3.13. [Reserved].
SECTION 3.14. Maintenance of Hazard Insurance Polices and Errors and
Omissions and Fidelity Coverage.
(a) Except in the case of Cooperative Loans, each Servicer shall
cause to be maintained for each related Mortgage Loan fire insurance with
extended coverage on all buildings upon the Mortgaged Property in an amount
which is at least equal to the lesser of the current Principal Balance of such
Mortgage Loan and the amount necessary to fully compensate for any damage or
loss to the improvements that are a part of such property on a replacement
cost basis, in each case in an amount not less than such amount as is
necessary to avoid the application of any coinsurance clause contained in the
related hazard insurance policy. Each Servicer shall also cause to be
maintained fire insurance with extended coverage on each related REO Property
in an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements which are a part of such property and (ii)
the outstanding Principal Balance of the related Mortgage Loan at the time it
became an REO Property. Each Servicer will comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
such hazard policies. Any amounts to be collected by a Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or amounts to be released to the
Mortgagor in accordance with the procedures that such Servicer would follow in
servicing loans held for its own account, subject to the terms and conditions
of the related Mortgage and Mortgage Note) shall be deposited in the related
Collection Account, subject to withdrawal pursuant to Section 3.11 hereof, if
received in respect of a Mortgage Loan, or in the related REO Account, subject
to withdrawal pursuant to Section 3.23 hereof, if received in respect of an
REO Property. Any cost incurred by a Servicer in maintaining any such
insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid Principal Balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no earthquake or other additional insurance
is to be required of any Mortgagor other than pursuant to such applicable laws
and regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property or REO Property is at any time
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards and flood insurance has been
made available, the related Servicer will cause to be maintained a flood
insurance policy in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid Principal Balance of the related
Mortgage Loan and (ii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance program
(assuming that the area in which such Mortgaged Property is located is
participating in such program).
If a Mortgage is secured by a unit in a condominium, the related
Servicer shall have received a certificate of insurance evidencing a master
policy held by the owner's association and naming such Servicer as loss payee.
All policies required hereunder shall name the related Servicer as loss payee
and shall be endorsed with standard mortgage clauses, which shall provide for
at least 30 days' prior written notice of any cancellation, reduction in
amount or material change in coverage. No Servicer shall interfere with a
Mortgagor's freedom of choice in selecting an insurance carrier or agent;
provided, however, that no Servicer shall accept any such insurance policies
from insurance companies unless such companies satisfy the requirements of
FNMA or FHLMC and are licensed to do business in the jurisdiction in which the
related Mortgaged Property is located. Any amounts collected by a Servicer
under any such policies (other than the amounts to be deposited in the related
Escrow Account and to be applied to the restoration or repair of the related
Mortgaged Property) (or, in the case of a Cooperative Loan, the related
Cooperative Unit) or property acquired in liquidation of the Mortgage Loan, or
amounts released to the Mortgagor in accordance with such Servicer's normal
servicing procedures) shall be deposited in the applicable Collection Account.
Any cost incurred by a 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 related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit. Such costs shall be recoverable by such Servicer out
of late payments by the related Mortgagor or out of Liquidation Proceeds to
the extent permitted by Section 3.10 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.
In the event that a Servicer shall obtain and maintain a blanket
policy with an insurer having a General Policy Rating of A+ or better in
Best's Key Rating Guide (or such other rating that is comparable to such
rating) insuring against hazard losses on all of the related Mortgage Loans,
such Servicer shall conclusively be deemed to have satisfied its obligations
as set forth in the first two sentences of the first two paragraphs of this
Section 3.14, it being understood and agreed that such policy may contain a
deductible clause, in which case such Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO
Property a policy complying with the first two sentences of this Section 3.14,
and there shall have been one or more losses which would have been covered by
such policy, deposit to the applicable Collection Account from its own funds
the amount not otherwise payable under the blanket policy because of such
deductible clause. In connection with its activities as administrator and
servicer of the related Mortgage Loans, each Servicer agrees to prepare and
present, on behalf of itself, the Trustee and the Certificateholders, claims
under any such blanket policy in a timely fashion in accordance with the terms
of such policy.
(b) [Reserved.]
(c) [Reserved.]
(a) Each Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of such Servicer's obligations under this
Agreement, which policy or policies shall be in such form and amount that
would meet the requirements of Fannie Mae or Freddie Mac if it were the
purchaser of the related Mortgage Loans, unless such Servicer has obtained a
waiver of such requirements from Fannie Mae or Freddie Mac. Each Servicer
shall also maintain a fidelity bond in the form and amount that would meet the
requirements of Fannie Mae or Freddie Mac, unless such Servicer has obtained a
waiver of such requirements from Fannie Mae or Freddie Mac. Each Servicer
shall be deemed to have complied with this provision if an Affiliate of such
Servicer has such errors and omissions and fidelity bond coverage and, by the
terms of such insurance policy or fidelity bond, the coverage afforded
thereunder extends to such Servicer. Any such errors and omissions policy and
fidelity bond shall by its terms not be cancelable without thirty days' prior
written notice to the Trustee. Each Servicer shall also cause each of its
Sub-Servicers to maintain a policy of insurance covering errors and omissions
and a fidelity bond which would meet such requirements.
SECTION 3.15. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
Each Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any related Mortgaged Property by any Mortgagor
(whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains or is to remain liable under the Mortgage Note and/or the
Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan under the "due-on-sale" clause, if any, applicable thereto; provided,
however, that such Servicer shall not be required to take such action if in
its sole business judgment such Servicer believes it is not in the best
interests of the Trust Fund and shall not exercise any such rights if
prohibited by law from doing so. If a Servicer reasonably believes it is
unable under applicable law to enforce such "due-on-sale" clause, or if any of
the other conditions set forth in the proviso to the preceding sentence apply,
such Servicer will enter into an assumption and modification agreement from or
with the person to whom such property has been conveyed or is proposed to be
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Each Servicer is also authorized to enter into a substitution
of liability agreement with such person, pursuant to which the original
Mortgagor is released from liability and such person is substituted as the
Mortgagor and becomes liable under the Mortgage Note, provided that no such
substitution shall be effective unless such person satisfies the underwriting
criteria of such Servicer and has a credit risk rating at least equal to that
of the original Mortgagor. In connection with any assumption or substitution,
each Servicer shall apply such underwriting standards and follow such
practices and procedures as shall be normal and usual in its general mortgage
servicing activities and as it applies to other mortgage loans owned solely by
it. No Servicer shall take or enter into any assumption and modification
agreement, however, unless (to the extent practicable in the circumstances) it
shall have received confirmation, in writing, of the continued effectiveness
of any applicable hazard insurance policy. Any fee collected by a Servicer in
respect of an assumption, modification or substitution of liability agreement
shall be retained by such Servicer as additional servicing compensation. In
connection with any such assumption, no material term of the Mortgage Note
(including but not limited to the related Mortgage Rate and the amount of the
Monthly Payment) may be amended or modified, except as otherwise required
pursuant to the terms thereof. The applicable Servicer shall notify the
Trustee that any such substitution, modification or assumption agreement has
been completed by forwarding to the Trustee the executed original of such
substitution, modification or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered
a part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, no Servicer shall be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
related Mortgage Loan by operation of law or by the terms of the Mortgage Note
or any assumption which such Servicer may be restricted by law from
preventing, for any reason whatever. For purposes of this Section 3.15, the
term "assumption" is deemed to also include a sale (of the Mortgaged Property)
subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
SECTION 3.16. Realization upon Defaulted Mortgage Loans.
(a) Each Servicer shall use its best efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties (including any Additional Collateral) securing such of
the related Mortgage Loans (including selling any such Mortgage Loans other
than converting the ownership of the related properties) as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments pursuant to Section 3.07 hereof. Each
Servicer shall be responsible for all costs and expenses incurred by it in any
such proceedings; provided, however, that such costs and expenses will be
recoverable as Servicing Advances by such Servicer as contemplated in Section
3.11 and Section 3.23 hereof. The foregoing is subject to the provision that,
in any case in which Mortgaged Property shall have suffered damage from an
Uninsured Cause, the applicable Servicer shall not be required to expend its
own funds toward the restoration of such property unless it shall determine in
its discretion that such restoration will increase the proceeds of liquidation
of the related Mortgage Loan after reimbursement to itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section 3.16 or
any other provision of this Agreement, with respect to any Mortgage Loan as to
which a Servicer has received actual notice of, or has actual knowledge of,
the presence of any toxic or hazardous substance on the related Mortgaged
Property, such Servicer shall not, on behalf of the Trustee, either (i) obtain
title to such Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, or (ii) otherwise acquire possession of, or take any other action
with respect to, such Mortgaged Property, if, as a result of any such action,
the Trustee, the Trust Fund or the Certificateholders would be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
from time to time, or any comparable law, unless such Servicer has also
previously determined, based on its reasonable judgment and a report prepared
by a Person who regularly conducts environmental audits using customary
industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any
hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or regulation, or that if any
such materials are present for which such action could be required,
that it would be in the best economic interest of the Trust Fund to
take such actions with respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by this
Section 3.16 shall be advanced by the related Servicer, subject to such
Servicer's right to be reimbursed therefor from the applicable Collection
Account as provided in Section 3.11(a)(vii) above, such right of reimbursement
being prior to the rights of Certificateholders to receive any amount in such
Collection Account received in respect of the affected Mortgage Loan or other
related Mortgage Loans.
If such Servicer determines, as described above, that it is in the
best economic interest of the Trust Fund to take such actions as are necessary
to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials,
hazardous wastes or petroleum-based materials affecting any such Mortgaged
Property, then such Servicer shall take such action as it deems to be in the
best economic interest of the Trust Fund; provided that any amounts disbursed
by such Servicer pursuant to this Section 3.16(b) shall constitute Servicing
Advances, subject to Section 4.05(d) hereof. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by such Servicer,
subject to such Servicer's right to be reimbursed therefor from the applicable
Collection Account as provided in Section 3.11(a)(iii) and (a)(vii) hereof,
such right of reimbursement being prior to the rights of Certificateholders to
receive any amount in such Collection Account received in respect of the
affected Mortgage Loan or other related Mortgage Loans.
(c) Each Servicer may, at its option, purchase any related Mortgage
Loan or related REO Property that is 90 days or more delinquent, which such
Servicer determines in good faith will otherwise become subject to foreclosure
proceedings (evidence of such determination to be delivered in writing to the
Trustee prior to purchase), at a price equal to the Purchase Price; provided,
however, that (i) such Servicer shall purchase any such Mortgage Loans or
related REO Properties on the basis of delinquency, purchasing the most
delinquent Mortgage Loans or related REO Properties first. The Purchase Price
for any Mortgage Loan or related REO Property purchased hereunder shall be
deposited in the Collection Account. The Trustee, upon receipt of such
deposit, shall release or cause to be released to the applicable Servicer the
related Mortgage File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as such Servicer shall
furnish and as shall be necessary to vest in it title to any Mortgage Loan or
related REO Property released pursuant hereto.
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds, Liquidation Proceeds or proceeds from liquidation of
Additional Collateral, in respect of any Mortgage Loan, will be applied in the
following order of priority: first, to reimburse the applicable Servicer or
any related Sub-Servicer for any related unreimbursed Servicing Advances and
Advances, pursuant to Section 3.11(a)(ii) or (a)(iii) hereof; second, to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than the
full amount of accrued and unpaid interest due on such Mortgage Loan, the
amount of such recovery will be allocated by the applicable Servicer as
follows: first, to unpaid Servicing Fees; and second, to the balance of the
interest then due and owing. The portion of the recovery so allocated to
unpaid Servicing Fees shall be reimbursed to the applicable Servicer or any
related Sub-Servicer pursuant to Section 3.11(a)(iii).
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the related Servicer of a notification that payment in full shall be escrowed
in a manner customary for such purposes, such Servicer shall deliver to the
Trustee two executed copies of a Request for Release in the form of Exhibit F
(which shall include a certification to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the related Collection Account pursuant to Section 3.10 hereof
have been or will be so deposited) of a related Servicing Officer and shall
request delivery to it of the Mortgage File. Upon receipt of such
certification and request, the Trustee shall, within five Business Days,
release and send the related Mortgage File to the related Servicer by
overnight mail, at the expense of such Servicer. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to any Collection Account or the Distribution Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection
under any insurance policy relating to the Mortgage Loans, the Trustee shall,
upon any request made by or on behalf of the related Servicer and delivery to
the Trustee of two copies of a Request for Release in the form of Exhibit F,
release the related Mortgage File to such Servicer, and the Trustee shall, at
the direction of such Servicer, execute such documents as shall be necessary
to the prosecution of any such proceedings. Such Request for Release shall
obligate the applicable Servicer to return each and every document previously
requested from the Mortgage File to the Trustee, when the need therefor by
such Servicer no longer exists, unless the Mortgage Loan has been liquidated
and the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the applicable Collection Account or the Mortgage File or such document has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or
other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and such Servicer has delivered, or caused to be
delivered, to the Trustee an additional Request for Release certifying as to
such liquidation or action or proceedings. Upon the request of the Trustee,
such Servicer shall provide notice to the Trustee of the name and address of
the Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that
are required to be deposited into the applicable Collection Account have been
so deposited, or that such Mortgage Loan has become an REO Property, any
outstanding Requests for Release with respect to such Mortgage Loan shall be
released by the Trustee to such Servicer or its designee.
(c) Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the related Servicer or its Sub-Servicer, as the
case may be, copies of, any court pleadings, requests for trustee's sale or
other documents prepared by such Servicer and necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action
brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or rights provided by the Mortgage Note or Mortgage or otherwise available at
law or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the
lien of the Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale.
(d) Each Request for Release delivered to the Trustee hereunder shall
be signed by a Servicing Officer or shall be delivered in a mutually agreed
upon electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer.
SECTION 3.18. Servicing Compensation.
As compensation for its activities hereunder, each Servicer shall be
entitled to its Servicing Fee with respect to each related Mortgage Loan
payable solely from payments of interest in respect of the related Mortgage
Loans; provided, however, that the Servicing Fee for each Servicer shall be
reduced with respect to each Distribution Date, by an amount equal generally
to the aggregate of the Prepayment Interest Shortfalls, if any, with respect
to the Mortgage Loans serviced by such Servicer and such Distribution Date,
but the aggregate reductions shall not exceed an amount equal to the aggregate
Servicing Fee for such Servicer for such Distribution Date before reduction
thereof in respect of such Prepayment Interest Shortfalls as further set forth
in Section 3.24 hereof.
Additional servicing compensation in the form of late payment
charges, assumption fees, insufficient funds charges, prepayment premiums or
other ancillary income shall be retained by each Servicer only to the extent
such fees or charges are received by such Servicer. Each Servicer shall also
be entitled pursuant to Section 3.11(a)(iv) hereof to withdraw from the
related Collection Account and pursuant to Section 3.23(b) hereof to withdraw
from any REO Account, as additional servicing compensation, interest or other
income earned on deposits therein, subject to Section 3.12 and Section 3.24
hereof. Each Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled
to reimbursement therefor except as specifically provided herein.
SECTION 3.19. Reports to the Trustee; Collection Account Statements.
Not later than 20 days after each Distribution Date, each Servicer
shall forward, upon request, to the Trustee and the Depositor the most current
available bank statement for the related Collection Account. Copies of such
statement shall be provided by the Trustee to any Certificateholder and to any
Person identified to the Trustee as a prospective transferee of a Certificate,
upon request at the expense of the requesting party, provided such statement
is delivered by such Servicer to the Trustee.
SECTION 3.20. Statement as to Compliance.
Each Servicer shall deliver to the Trustee and the Depositor not
later than 90 days following the end of the fiscal year of such Servicer,
commencing with the fiscal year that begins in 2000, an Officers' Certificate
stating, as to each signatory thereof, that (i) a review of the activities of
such Servicer during the preceding year and of performance under this
Agreement has been made under such officers' supervision and (ii) to the best
of such officers' knowledge, based on such review, such Servicer has fulfilled
all of its obligations under this Agreement throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officer and the nature and status thereof. Copies
of any such statement shall be provided by the Trustee to any
Certificateholder and to any Person identified to the Trustee as a prospective
transferee of a Certificate, upon request at the expense of the requesting
party, provided such statement is delivered by such Servicer to the Trustee.
SECTION 3.21. Independent Public Accountants' Servicing Report.
Not later than 90 days following the end of each fiscal year of a
Servicer, commencing with the fiscal year that begins in 2000, such Servicer
at its own expense shall cause a nationally recognized firm of Independent
certified public accountants to furnish to such Servicer a report stating that
(i) it has obtained a letter of representation regarding certain matters from
the management of such Servicer that includes an assertion that such Servicer
has complied with certain minimum residential mortgage loan servicing
standards, identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with
respect to the servicing of residential mortgage loans during the most
recently completed fiscal year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the
American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted
in accordance with the same standards (rendered within one year of such
report) with respect to those Sub-Servicers. Copies of such statement shall be
provided by the Trustee to any Certificateholder upon request at the expense
of such Servicer provided that such statement is delivered by such Servicer to
the Trustee.
SECTION 3.22. Access to Certain Documentation; Filing of Reports by
Trustee.
(a) Each Servicer shall provide to the Office of Thrift Supervision,
the FDIC, and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to
the documentation regarding the related Mortgage Loans required by applicable
laws and regulations. Such access shall be afforded without charge, but only
upon reasonable request and during normal business hours at the offices of
such Servicer designated by it. In addition, access to the documentation
regarding the related Mortgage Loans will be provided to any
Certificateholder, the Trustee and to any Person identified to a Servicer as a
prospective transferee of a Certificate, upon reasonable request during normal
business hours at the offices of such Servicer designated by it at the expense
of the Person requesting such access.
(b) Within 15 days after each Distribution Date, the Trustee shall,
in accordance with industry standards, file with the Commission, via the
Electronic Data Gathering and Retrieval System (EDGAR), a Form 8-K with a copy
of the statement to the Certificateholders for such Distribution Date as an
exhibit thereto. Prior to January 30, 2001, the Trustee shall, in accordance
with industry standards, file a Form 15 Suspension Notification with respect
to the Trust Fund, if applicable. Prior to March 30, 2001, the Trustee shall
file a Form 10-K, in substance conforming to industry standards, with respect
to the Trust Fund. The Depositor hereby grants to the Trustee a limited power
of attorney to execute and file each such document on behalf of the Depositor.
Such power of attorney shall continue until either the earlier of (i) receipt
by the Trustee from the Depositor of written termination of such power of
attorney and (ii) the termination of the Trust Fund. The Depositor and each
Servicer agree to furnish to the Trustee promptly, from time to time upon
request, such further information, reports, and financial statements within
its control related to this Agreement and the Mortgage Loans as the Trustee
reasonably deems appropriate to prepare and file all necessary reports with
the Commission. The Trustee shall have no responsibility to file any items
other than those specified in this section.
SECTION 3.23. Title, Management and Disposition of REO Property.
(a) The deed or certificate of sale of any REO Property shall be
taken in the name of the Trustee, or its nominee, in trust for the benefit of
the Certificateholders. Each Servicer, on behalf of the REMIC, shall either
sell any related REO Property by the end of the third full taxable year after
the taxable year in which the REMIC acquires ownership of such REO Property
for purposes of Section 860G(a)(8) of the Code or request from the Internal
Revenue Service, no later than 61 days before the day on which the three-year
grace period would otherwise expire, an extension of such three-year period,
unless such Servicer shall have delivered to the Trustee an Opinion of
Counsel, addressed to the Trustee and the Depositor, to the effect that the
holding by the REMIC of such REO Property subsequent to three years after its
acquisition will not result in the imposition on the REMIC of taxes on
"prohibited transactions" thereof, as defined in Section 860F of the Code, or
cause the REMIC to fail to qualify as a REMIC under Federal law at any time
that any Certificates are outstanding. Each Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for
the purpose of its prompt disposition and sale in a manner which does not
cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code or result in the receipt by the
REMIC of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code, or any "net income from foreclosure property" which
is subject to taxation under the REMIC Provisions.
(b) Each Servicer shall separately account for all funds collected
and received by it in connection with the operation of any REO Property and
shall establish and maintain, or cause to be established and maintained, with
respect to REO Properties an account held in trust for the Trustee for the
benefit of the Certificateholders (each such account, an "REO Account"), which
shall be an Eligible Account. Each Servicer shall be permitted to allow its
Collection Account to serve as its REO Account, subject to separate ledgers
for each related REO Property. Each Servicer shall be entitled to retain or
withdraw any interest income paid on funds deposited in its REO Account.
(c) Each Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any related REO Property as are consistent with
the manner in which such Servicer manages and operates similar property owned
by such Servicer or any of its Affiliates, all on such terms and for such
period as such Servicer deems to be in the best interests of
Certificateholders. In connection therewith, each Servicer shall deposit, or
cause to be deposited in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan servicing activities on a daily basis, and in no event more than one
Business Day after such Servicer's receipt thereof, and shall thereafter
deposit in its REO Account, in no event more than two Business Days after such
Servicer's receipt thereof, all revenues received by it with respect to an REO
Property and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of such REO Property including, without
limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with respect to an
REO Property are insufficient for the purposes set forth in clauses (i)
through (iii) above with respect to such REO Property, the applicable Servicer
shall advance from its own funds such amount as is necessary for such purposes
if, but only if, such Servicer would make such advances if such Servicer owned
such REO Property and if in such Servicer's judgment, the payment of such
amounts will be recoverable from the rental or sale of such REO Property.
Notwithstanding the foregoing, no Servicer shall:
(i) authorize the Trust Fund to enter into, renew or extend any
New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents
from Real Property;
(ii) authorize any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize any construction on any REO Property, other
than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of such
building or other improvement was completed before default on the
related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) authorize any Person to Directly Operate any REO Property
on any date more than 90 days after its date of acquisition by the
Trust Fund;
unless, in any such case, such Servicer has obtained an Opinion of Counsel,
provided to the Trustee, to the effect that such action will not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code at any time that it is held by the REMIC, in
which case such Servicer may take such actions as are specified in such
Opinion of Counsel.
Each Servicer may contract with any Independent Contractor for the
operation and management of any related REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs and
expenses incurred in connection with the operation and management of
such REO Property, including those listed above and remit all
related revenues (net of such costs and expenses) to such Servicer
as soon as practicable, but in no event later than thirty days
following the receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.23(c) relating
to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve such Servicer of
any of its duties and obligations to the Trustee on behalf of the
Certificateholders with respect to the operation and management of
any such REO Property; and
(iv) such Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
REO Property.
Each Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of such Servicer by such Independent
Contractor, and nothing in this Agreement shall be deemed to limit or modify
such indemnification. Each Servicer shall be solely liable for all fees owed
by it to any such Independent Contractor, irrespective of whether such
Servicer's compensation pursuant to Section 3.18 hereof is sufficient to pay
such fees; provided, however, that to the extent that any payments made by
such Independent Contractor would constitute Servicing Advances if made by
such Servicer, such amounts shall be reimbursable as Servicing Advances made
by such Servicer.
(d) In addition to the withdrawals permitted under Section 3.23(c)
hereof, each Servicer may from time to time make withdrawals from the
applicable REO Account for any related REO Property: (i) to pay itself or any
of its Sub-Servicers unpaid Servicing Fees in respect of the related Mortgage
Loan; and (ii) to reimburse itself or any of its Sub-Servicers for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, each
Servicer shall withdraw from each REO Account maintained by it and deposit
into the Distribution Account in accordance with Section 3.10(d)(i) hereof,
for distribution on the related Distribution Date in accordance with Section
4.01 hereof, the income from the related REO Property received during the
prior calendar month, net of any withdrawals made pursuant to Section 3.23(c)
hereof or this Section 3.23(d).
(e) Subject to the time constraints set forth in Section 3.23(a)
hereof, each REO Disposition shall be carried out by the related Servicer at
such price and upon such terms and conditions as such Servicer shall deem
necessary or advisable, as shall be normal and usual in its Servicing
Standard.
(f) The proceeds from the REO Disposition, net of any amount required
by law to be remitted to the Mortgagor under the related Mortgage Loan and net
of any payment or reimbursement to the applicable Servicer or any related
Sub-Servicer as provided above, shall be deposited in the Distribution Account
in accordance with Section 3.10(d)(i) hereof on the Servicer Remittance Date
in the month following the receipt thereof for distribution on the related
Distribution Date in accordance with Section 4.01 hereof. Any REO Disposition
shall be for cash only (unless changes in the REMIC Provisions made subsequent
to the Startup Day allow a sale for other consideration).
(g) Each Servicer shall file information returns with respect to the
receipt of mortgage interest received in a trade or business, reports of
foreclosures and abandonments of any Mortgaged Property and cancellation of
indebtedness income with respect to any Mortgaged Property as required by
Sections 6050H, 6050J and 6050P of the Code, respectively. Such reports shall
be in form and substance sufficient to meet the reporting requirements imposed
by such Sections 6050H, 6050J and 6050P of the Code.
SECTION 3.24. Obligations of the Servicers in Respect of Prepayment
Interest Shortfalls.
Not later than the Close of Business on each Servicer Remittance
Date, each Servicer shall remit to the applicable Collection Account an amount
("Compensating Interest") equal to:
(a) In the case of Countrywide, the lesser of (i) the aggregate of
the Prepayment Interest Shortfalls for the related Distribution Date and (ii)
Countrywide's Servicing Fee received in the related Due Period; and
(b) In the case of ABN AMRO, the lesser of (i) the aggregate of the
Prepayment Interest Shortfalls resulting from Principal Prepayments in full
for the related Distribution Date and (ii) ABN AMRO's Servicing Fee received
in the related Due Period on a loan by loan basis.
No Servicer shall have the right to reimbursement for any amounts
remitted to the Trustee in respect of Compensating Interest. Such amounts so
remitted shall be included in the Loan Group Available Funds relating to any
Loan Group experiencing the Principal Prepayments and distributed therewith on
the next Distribution Date. No Servicer shall be obligated to pay Compensating
Interest with respect to Relief Act Interest Shortfalls.
SECTION 3.25. [Reserved]
SECTION 3.26. Obligations of the Servicers in Respect of Adjustments.
In the event that a shortfall in any collection on or liability with
respect to the Mortgage Loans in the aggregate results from or is attributable
to adjustments to Stated Principal Balances that were made by a Servicer in a
manner not consistent with the terms of the related Mortgage Note and this
Agreement, such Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Trustee for deposit in the Distribution
Account from its own funds the amount of any such shortfall and shall
indemnify and hold harmless the Trust Fund, the Trustee, the Depositor and any
successor servicer in respect of any such liability. Such indemnities shall
survive the termination or discharge of such Servicer or this Agreement.
Notwithstanding the foregoing, this Section 3.26 shall not limit the ability
of any Servicer to seek recovery of any such amounts from the related
Mortgagor under the terms of the related Mortgage Note, as permitted by law.
SECTION 3.27. Solicitations.
From and after the Closing Date, each Servicer agrees that it will
not take any action or permit or cause any action to be taken by any of its
agents and Affiliates, or by any independent contractors or independent
mortgage brokerage companies on such Servicer's behalf, to personally, by
telephone or mail, solicit the Mortgagor under any Mortgage Loan for the
purpose of refinancing such Mortgage Loan; provided, however, that a Servicer
may solicit any Mortgagor for whom such Servicer has received a request for
verification of mortgage, a request for demand for payoff, a mortgagor
initiated written or verbal communication indicating a desire to prepay the
related Mortgage Loan, or the mortgagor initiates a title search; and
provided, further, it is understood and agreed that promotions undertaken by a
Servicer or any of its Affiliates that (i) concern optional insurance products
or other additional products or (ii) are generally directed to the customers
of such Servicer or its Affiliates (including customers meeting certain
defined parameters), including, without limitation, mass mailings based on
commercially acquired mailing lists, newspaper, radio and television
advertisements shall not constitute solicitation under this Section, nor is
any Servicer prohibited from responding to unsolicited requests or inquiries
made by a Mortgagor or an agent of a Mortgagor.
ARTICLE IV
FLOW OF FUNDS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall withdraw funds on
deposit in the Distribution Account and make the following disbursements and
transfers as described below and to the extent of such funds, based upon
information provided to the Trustee pursuant to Section 4.04(a) hereof.
(i) The Loan Group Available Funds for Loan Group I shall be
distributed on each Distribution Date in the following order
of priority:
(A) to the Holder of the Class A-R Certificate, the related
Interest Distributable Amount for that date;
(B) to the Holders of the Class IA-1, Class IA-2 and Class X
Certificates, the related Interest Distributable Amounts
for that date, pro rata (based on the Interest
Distributable Amount to which each such Class--or, in the
case of the Class X Certificate, the Class X-I
Component--is entitled); and
(C) from the Principal Distribution Amount for Loan Group I
for such Distribution Date, an amount equal to the Senior
Principal Distribution Amount for Loan Group I for that
date, as follows:
first, to the Holder of Class A-R
Certificate, until the Class Certificate
Principal Balance of such Class is reduced
to zero, and
second, sequentially, to the Holders of the
Class IA-1 and Class IA-2 Certificates, in
that order, or pro rata (based on the their
respective Class Certificate Principal
Balances immediately prior to such
Distribution Date) if the Senior Credit
Support Depletion Date has occurred--until
the respective Class Certificate Principal
Balances of such Classes are reduced to
zero.
(ii) The Loan Group Available Funds for Loan Group II shall be
distributed on each Distribution Date in the following order
of priority:
(A) to the Holders of the Class IIA and Class X Certificates,
the related Interest Distributable Amounts for that date,
pro rata (based on the Interest Distributable Amount to
which each such Class--or, in the case of the Class X
Certificate, the Class X-II Component--is entitled); and
(B) from the Principal Distribution Amount for Loan Group II
for such Distribution Date, an amount equal to the Senior
Principal Distribution Amount for Loan Group II for that
date, to the Holders of the Class IIA Certificates until
the Class Certificate Principal Balance of such Class is
reduced to zero.
(iii) The Loan Group Available Funds for Loan Group III shall be
distributed on each Distribution Date in the following order
of priority:
(A) to the Holders of the Class IIIA and Class X Certificates,
the related Interest Distributable Amounts for that date,
pro rata (based on the Interest Distributable Amount to
which each such Class--or, in the case of the Class X
Certificate, the Class X-III Component--is entitled); and
(B) from the Principal Distribution Amount for Loan Group III
for such Distribution Date, an amount equal to the Senior
Principal Distribution Amount for Loan Group III for that
date, to the Holders of the Class IIIA Certificates until
the Class Certificate Principal Balance of such Class is
reduced to zero.
(iv) On each Distribution Date, the Available Funds remaining
after giving effect to the distributions specified in
subsections (i), (ii) and (iii) above will be distributed to
the Certificateholders in the following order of priority:
(A) to each Servicer, pro rata, the amount to which such
Servicer shall be entitled, by way of indemnification,
pursuant to Section 6.03.
(B) to the Holders of the Class B-1 Certificates, the related
Interest Distributable Amount for that date;
(C) to the Holders of the Class B-1 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(D) to the Holders of the Class B-2 Certificates, the related
Interest Distributable Amount for that date;
(E) to the Holders of the Class B-2 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(F) to the Holders of the Class B-3 Certificates, the related
Interest Distributable Amount for that date;
(G) to the Holders of the Class B-3 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(H) to the Holders of the Class B-4 Certificates, the related
Interest Distributable Amount for that date;
(I) to the Holders of the Class B-4 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(J) to the Holders of the Class B-5 Certificates, the related
Interest Distributable Amount for that date;
(K) to the Holders of the Class B-5 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero;
(L) to the Holders of the Class B-6 Certificates, the related
Interest Distributable Amount for that date;
(M) to the Holders of the Class B-6 Certificates, an amount
allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate
Principal Balance of such Class is reduced to zero; and
(N) to the Holder of the Class A-R Certificate, any Available
Funds then remaining.
(b) Amounts to be paid to the Holders of a Class of Certificates
shall be payable with respect to all Certificates of that Class, pro rata,
based on the Certificate Balance or Certificate Notional Balance of each
Certificate of that Class.
(c) [Reserved].
(d) On each Distribution Date, the Interest Distributable Amounts for
the Classes of Senior Certificates and Subordinate Certificates on such
Distribution Date shall be reduced by the pro rata share of each such Class
in:
(i) Net Prepayment Interest Shortfalls and Relief Act
Reductions with respect to the Related Loan Group in the case of the
Senior Certificates, and all Net Prepayment Interest Shortfalls and
Relief Act Reductions in the case of the Subordinate Certificates,
based on such Class's Interest Distributable Amount without taking
into account such Net Prepayment Interest Shortfalls and Relief Act
Reductions;
(ii) after the Special Hazard Coverage Termination Date, with
respect to each Mortgage Loan in a Loan Group that became a Special
Hazard Mortgage Loan during the related Prepayment Period, the
excess of one month's interest at the related Net Loan Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in
such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such related
Prepayment Period;
(iii) after the Bankruptcy Coverage Termination Date, with
respect to each Mortgage Loan in such Loan Group that became subject
to a Bankruptcy Loss during the related Prepayment Period, the
interest portion of the related Debt Service Reduction or Deficient
Valuation; and
(iv) after the Fraud Coverage Termination Date, with respect to
each Mortgage Loan in such Loan Group that became a Fraud Loan
during the related Prepayment Period, the excess of one month's
interest at the related Net Loan Rate on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in such month over
the amount of Liquidation Proceeds applied as interest on such
Mortgage Loan with respect to such month.
(e) Notwithstanding the priority and allocation set forth in Section
4.01(a)(iv) above, if with respect to any Class of Subordinate Certificates on
any Distribution Date the sum of the related Class Subordination Percentages
of such Class and of all other Classes of Subordinate Certificates which have
a higher numerical Class designation than such Class (the "Applicable Credit
Support Percentage") is less than the Original Applicable Credit Support
Percentage for such Class, no distribution of Principal Prepayments will be
made to any such Classes (the "Restricted Classes") and the amount of such
Principal Prepayment otherwise distributable to the Restricted Classes shall
be distributed to any Classes of Subordinate Certificates having lower
numerical Class designations than such Class, pro rata, based on the Class
Certificate Principal Balances of the respective Classes immediately prior to
such Distribution Date and shall be distributed in the sequential order
provided in Section 4.01(a)(iv) above.
(f) Distributions on Physical Certificates. The Trustee shall make
distributions in respect of a Distribution Date to each Certificateholder of
record on the related Record Date (other than as provided in Section 10.01
hereof respecting the final distribution), in the case of Certificateholders
of the Physical Certificates, by check or money order mailed to such
Certificateholder at the address appearing in the Certificate Register, or by
wire transfer. Distributions among Certificateholders of a Class shall be made
in proportion to the Percentage Interests evidenced by the Certificates of
that Class held by such Certificateholders.
(g) Distributions on Book-Entry Certificates. Each distribution with
respect to a Book-Entry Certificate shall be paid to the Depository, which
shall credit the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing
funds to the Certificate Owners that it represents. All such credits and
disbursements with respect to a Book-Entry Certificate are to be made by the
Depository and the Depository Participants in accordance with the provisions
of the Certificates. None of the Trustee, the Depositor, any Servicer or the
Seller shall have any responsibility therefor.
SECTION 4.02. [Reserved].
SECTION 4.03. Allocation of Realized Losses.
(a) On or prior to each Determination Date, each Servicer shall
determine the total amount of Realized Losses, including Excess Losses, with
respect to the Mortgage Loans serviced by such Servicer in each Loan Group and
the related Distribution Date, and provide such information to the Trustee,
accompanied by its Officers' Certificate. Thereupon, the Trustee shall
aggregate the information so provided for each Loan Group.
(b) Realized Losses, Bankruptcy Losses, Fraud Losses and Special
Hazard Losses with respect to each Loan Group and any Distribution Date shall
be allocated as follows:
(i) Realized Losses, Bankruptcy Losses, Fraud Losses and
Special Hazard Losses with respect to each Loan Group (other than
Excess Losses) shall be allocated:
first, to the Subordinate Certificates in reverse order of
their respective numerical Class designations (beginning
with the Class of Subordinate Certificates with the highest
numerical Class designation) until the Class Certificate
Principal Balance of each such Class is reduced to zero; and
second,
(A) with respect to Loan Group I, to the Class IA-1,
Class 1A-2 and Class A-R Certificates, pro rata,
until the Class Certificate Principal Balance of
each such Class is reduced to zero; and
(B) with respect to Loan Group II and Loan Group III,
to the related Class of Senior Certificates until
the Class Certificate Principal Balance thereof is
reduced to zero; and
(ii) any Excess Losses on the Mortgage Loans in a Loan Group
shall be allocated to the related Class or Classes of Senior
Certificates and the related Subordinate Components of the
Subordinate Certificates then outstanding, pro rata, on the basis of
the respective Class Certificate Principal Balances of the Class or
Classes of Senior Certificates in the related Certificate Group and
the respective Subordinate Component Balances of the Classes of
Subordinate Certificates related to such Loan Group; provided,
however, that on any Distribution Date occurring on and after the
Senior Credit Support Depletion Date, any Excess Losses will be
allocated among the related Class or Classes of Senior Certificates,
pro rata, based on their respective Class Certificate Principal
Balances immediately prior to such Distribution Date.
(c) The Class Certificate Principal Balance of the Class of
Subordinate Certificates then outstanding with the highest numerical Class
designation shall be reduced on each Distribution Date by the amount, if any,
by which the aggregate of the Class Certificate Principal Balances of all
outstanding Classes of Certificates (after giving effect to the distribution
of principal and the allocation of Realized Losses, Bankruptcy Losses, Fraud
Losses and Special Hazard Losses and Excess Losses on such Distribution Date)
exceeds the aggregate of the Stated Principal Balances of all the Mortgage
Loans for the following Distribution Date.
(d) Any Realized Loss, Bankruptcy Loss, Fraud Loss, Special Hazard
Loss or Excess Loss allocated to a Class of Certificates or any reduction in
the Class Certificate Principal Balance of a Class of Certificates pursuant to
Section 4.03(b) or (c) shall be allocated among the Certificates of such
Class, pro rata, in proportion to their respective Certificate Balances.
(e) Any allocation of Realized Losses to a Certificate or any
reduction in the Certificate Balance of a Certificate pursuant to Section
4.03(b) or (c) shall be accomplished by reducing the Certificate Balance
thereof immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance."
SECTION 4.04. Statements.
(a) On each Distribution Date, based, as applicable, on information
provided to it by the Servicer, the Trustee shall make available to each
Holder of the Regular Certificates, the Seller, each Servicer and the Rating
Agencies, a statement (the "Distribution Date Statement") as to the
distributions made on such Distribution Date:
(i) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates (and each
Subordinate Component in the case of the Classes of Subordinate
Certificates) allocable to principal;
(ii) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates allocable to
interest;
(iii) the Pro Rata Senior Percentage, Senior Percentage, Senior
Prepayment Percentage and Subordinate Percentage with respect to
each Loan Group for the following Distribution Date;
(iv) the aggregate amount of servicing compensation received by
each Servicer during the related Due Period and such other customary
information as the Trustee deems necessary or desirable, or which a
Certificateholder reasonably requests, to enable Certificateholders
to prepare their tax returns;
(v) the aggregate amount of Advances for the related Due Period
and the amount of unreimbursed Advances;
(vi) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, each as of
the related Determination Date;
(vii) the Loan Group Balance and related Net WAC for each Loan
Group at the Close of Business at the end of the related Due Period;
(viii) the aggregate Principal Balance of the One Year CMT
Indexed Group I Mortgage Loans at the Close of Business at the end
of the related Due Period;
(ix) the aggregate Principal Balance of the Six Month LIBOR
Indexed Group I Mortgage Loans at the Close of Business at the end
of the related Due Period;
(x) the aggregate Principal Balance of the One Year CMT Indexed
Group II Mortgage Loans at the Close of Business at the end of the
related Due Period;
(xi) the aggregate Principal Balance of the Six Month LIBOR
Indexed Group II Mortgage Loans at the Close of Business at the end
of the related Due Period;
(xii) the aggregate Principal Balance of the One Year CMT
Indexed Group III Mortgage Loans at the Close of Business at the end
of the related Due Period;
(xiii) the aggregate Principal Balance of the Six Month LIBOR
Indexed Group III Mortgage Loans at the Close of Business at the end
of the related Due Period;
(xiv) the aggregate Principal Balance of fixed rate Group III
Mortgage Loans at Close of Business at the end of the related Due
Period;
(xv) the number, weighted average remaining term to maturity
and weighted average Mortgage Rate of the Mortgage Loans in each
Loan Group as of the related Due Date;
(xvi) separately stated for each Loan Group, the number and
aggregate unpaid principal balance of Mortgage Loans (a) 30 to 59
days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days
Delinquent, (d) as to which foreclosure proceedings have been
commenced and (e) in bankruptcy, in each case as of the Close of
Business on the last day of the calendar month preceding such
Distribution Date;
(xvii) the book value of any REO Property as of the Close of
Business on the last Business Day of the calendar month preceding
the Distribution Date, and, cumulatively, the total number and
cumulative principal balance of all REO Properties in each Loan
Group as of the Close of Business of the last day of the preceding
Due Period;
(xviii) the aggregate amount of Principal Prepayments with
respect to each Loan Group made during the related Prepayment
Period;
(xix) the aggregate amount of Realized Losses incurred during
the related Due Period and the cumulative amount of Realized Losses;
(xx) the Class Certificate Principal Balance of each Class of
Certificates (other than the Class X Certificates), the Class X
Certificate Notional Balance of the Class X Certificates, the
Subordinate Component Balance of each Subordinate Component and the
Class X Component Notional Balance of each Class X Notional
Component after giving effect to any distributions made thereon, on
such Distribution Date;
(xxi) the Interest Distributable Amount in respect of each
Class of the Certificates, for such Distribution Date and the
respective portions thereof, if any, remaining unpaid following the
distributions made in respect of such Certificates on such
Distribution Date;
(xxii) the aggregate amount of any Prepayment Interest
Shortfalls and the Unpaid Interest Shortfall Amount for such
Distribution Date, to the extent not covered by payments by the
Servicers pursuant to Section 3.24 hereof in each case by Loan
Group;
(xxiii) the Loan Group Available Funds with respect to each
Loan Group;
(xxiv) the Pass-Through Rate for each Class of Certificates for
such Distribution Date; and
(xxv) the aggregate Principal Balance of Mortgage Loans
purchased by each Servicer or the Seller during the related Due
Period with respect to each Loan Group, and indicating the Section
of this Agreement requiring or allowing the purchase of each such
Mortgage Loan.
The Trustee will make the Distribution Date Statement (and, at its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders and the other parties to
this Agreement via the Trustee's internet website and its fax-on-demand
service and will forward the Distribution Date Statement to each Rating
Agency. The Trustee's fax-on-demand service may be accessed through the fax
number 714-247-6285. The Trustee's internet website shall initially be located
at "http://www-apps.gis.deutsche-bank.com/invr". Assistance in using the
website or the fax-on-demand service can be obtained by calling the Trustee's
customer service desk at 800-735-7777. Parties that are unable to use the
above distribution options are entitled to have a paper copy mailed to them
via first class mail by calling the customer service desk and requesting same.
The Trustee shall have the right to change the way Distribution Date
Statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Trustee shall provide
timely and adequate notification to all the above parties regarding any such
changes. The Trustee's obligations pursuant to this Section 4.04 are limited
to the extent of its receipt of all necessary information from each Servicer.
The Trustee may fully rely upon and shall have no liability with respect to
information provided by any Servicer.
In the case of information furnished pursuant to subclauses (i) and
(ii) above, the amounts shall be expressed in a separate section of the report
as a dollar amount for each Class for each $1,000 original dollar amount as of
the Cut-off Date.
(b) Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon written request, furnish to each Person who at
any time during the calendar year was a Certificateholder of a Regular
Certificate, if requested in writing by such Person, such information as is
reasonably necessary to provide to such Person a statement containing the
information set forth in subclauses (i) through (iii) above, aggregated for
such calendar year or applicable portion thereof during which such Person was
a Certificateholder. Such obligation of the Trustee shall be deemed to have
been satisfied to the extent that substantially comparable information shall
be prepared and furnished by the Trustee to Certificateholders pursuant to any
requirements of the Code as are in force from time to time.
(c) On each Distribution Date, the Trustee shall supply an electronic
tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg
Financial Markets, Inc. on a monthly basis.
(d) On each Distribution Date, the Trustee shall supply an electronic
tape to the Seller containing the following with respect to each Mortgage
Loan:
(i) the Mortgage Loan identifying number;
(ii) whether such Mortgage Loan is a Cendant Loan, a
Countrywide Loan, an ABN AMRO Loan or a MLCC Loan (and in the case
of any MLCC Loan, whether such loan is a Servicing Transferred
Loan);
(iii) the current Mortgage Rate as of the end of the related
Due Period;
(iv) the related Servicing Fee Rate;
(v) the current Monthly Payment due as of the end of the
related Due Period;
(vi) the next scheduled Due Date as of the end of the related
Due Period;
(vii) the next Adjustment Date of the Mortgage Loan as of the
end of the related Due Period, if applicable;
(viii) the Stated Principal Balance of the Mortgage Loan
immediately prior to the related Due Period;
(ix) the Stated Principal Balance of the Mortgage Loan as of
the end of the related Due Period;
(x) the Stated Principal Balance of the Mortgage Loan as of the
end of the related Due Period, but only to the extent of principal
actually received, not advanced;
(xi) the aggregate of all interest received on the Mortgage
Loan, including Advances;
(xii) the related Servicing Fee;
(xiii) the aggregate of all scheduled principal payments
received on the Mortgage Loans, including Advances;
(xiv) Principal Prepayments in part;
(xv) Principal Prepayments in full;
(xvi) the delinquency status of the Mortgage Loan (i.e., 0, 30,
60, 90+ days delinquent);
(xvii) an indication as to whether the Obligor on the Mortgage
Loan is in bankruptcy;
(xviii) an indication as to whether the Mortgage Loan is in
foreclosure;
(xix) an indication as to whether the related Mortgaged
Property has become an REO Property;
(xx) the date of bankruptcy, if any;
(xxi) the date of foreclosure, if any;
(xxii) the date on which the related Mortgaged Property became
an REO Property;
(xxiii) for each Mortgage Loan for which a Liquidation Event
has occurred, whether such Mortgage Loan (i) has been paid in full,
(ii) is a Liquidated Mortgage Loan or (iii) has been repurchased or
replaced;
(xxiv) the date after which the Stated Principal Balance of the
Mortgage Loan is zero;
(xxv) the Stated Principal Balance of the Mortgage Loan on the
date on which a Liquidation Event occurs;
(xxvi) Liquidation Proceeds;
(xxvii) Net Liquidation Proceeds;
(xxviii) Realized Losses;
(xxix) Net Prepayment Interest Shortfalls;
(xxx) Relief Act Reductions;
(xxxi) the aggregate of all scheduled interest received on the
Mortgage Loans, excluding Advances;
(xxxii) the aggregate of all scheduled principal received on
the Mortgage Loans, excluding Advances;
(xxxiii) the current amount of Advances outstanding;
(xxxiv) the amount advanced by the related Servicer;
(xxxv) the amount of principal advanced by the related
Servicer; and
(xxxvi) the amount of interest advanced by the related
Servicer.
SECTION 4.05. Remittance Reports; Advances.
(a) No later than the tenth Business Day prior to each Distribution
Date, each Servicer shall deliver to the Trustee, by telecopy or electronic
mail (or by such other means as such Servicer and the Trustee may agree from
time to time), a remittance report (the "Remittance Report") with respect to
the related Distribution Date, which Remittance Report shall include such
information with respect to the Mortgage Loans serviced by such Servicer as
the Trustee may reasonably require to perform the calculations necessary to
make the distributions contemplated by Section 4.01 hereof and to prepare the
Distribution Date Statements contemplated by Section 4.04 hereof. The Trustee
shall not be responsible to recompute, recalculate or verify any information
provided to it by any Servicer.
(b) The amount of Advances to be made by each Servicer for any
Distribution Date shall equal, subject to Section 4.05(d) below, the sum of
(i) the aggregate amount of Monthly Payments (net of the related Servicing
Fee) due during the related Due Period in respect of the Mortgage Loans
serviced by such Servicer, which Monthly Payments were Delinquent on a
contractual basis as of the Close of Business on the related Determination
Date and (ii) with respect to each related REO Property, which REO Property
was acquired during or prior to the related Due Period and as to which REO
Property an REO Disposition did not occur during the related Due Period, an
amount equal to the excess, if any, of the REO Imputed Interest on such REO
Property for the most recently ended calendar month, over the net income from
such REO Property transferred to the Distribution Account pursuant to Section
3.23 hereof for distribution on such Distribution Date.
On or before the Close of Business New York time on the Servicer
Remittance Date, each Servicer shall remit in immediately available funds to
the Trustee for deposit in the Distribution Account an amount equal to the
aggregate amount of Advances, if any, to be made in respect of the related
Mortgage Loans and related REO Properties for the related Distribution Date
either (i) from its own funds previously deposited in the Collection Account
or (ii) from the applicable Collection Account, to the extent of funds held
therein for future distribution (in which case it will cause to be made an
appropriate entry in the records of such Collection Account that amounts held
for future distribution have been, as permitted by this Section 4.05, used by
such Servicer in discharge of any such Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of Advances to be
made by such Servicer with respect to the related Mortgage Loans and related
REO Properties. Any amounts held for future distribution and so used shall be
appropriately reflected in any such Servicer's records and replaced by such
Servicer by deposit in the applicable Collection Account on or before any
future Servicer Remittance Date to the extent that the Available Funds for the
related Distribution Date (determined without regard to Advances to be made on
the Servicer Remittance Date) shall be less than the total amount that would
be distributed to the Classes of Certificateholders pursuant to Section 4.01
on such Distribution Date if such amounts held for future distributions had
not been so used to make Advances. The Trustee will promptly provide notice to
a Servicer by telecopy in the event that the amount remitted by such Servicer
to the Trustee on such date is less than the Advances required to be made by
such Servicer for the related Distribution Date, as set forth in the related
Remittance Report.
(c) The obligation of each Servicer to make such Advances is
mandatory, notwithstanding any other provision of this Agreement but subject
to (d) below and, with respect to any Mortgage Loan serviced by such Servicer,
shall continue until the Mortgage Loan is paid in full or until the recovery
of all Liquidation Proceeds thereon.
(d) Notwithstanding anything herein to the contrary, no Advance or
Servicing Advance shall be required to be made hereunder by any Servicer if
such Advance or Servicing Advance would, if made, constitute a Nonrecoverable
Advance. The determination by a Servicer that it has made a Nonrecoverable
Advance or that any proposed Advance or Servicing Advance, if made, would
constitute a Nonrecoverable Advance, shall be evidenced by an Officers'
Certificate of such Servicer delivered to the Depositor and the Trustee.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
Each of the Class IA-1, Class IA-2, Class IIA and Class IIIA
Certificates shall be substantially in the form annexed hereto as Exhibit A,
the Class X Certificates shall be substantially in the form annexed hereto as
Exhibit B, the Class A-R Certificate shall be substantially in the form
annexed hereto as Exhibit C, and each of the Subordinate Certificates shall be
substantially in the form annexed hereto as Exhibit D. Each of the
Certificates shall, on original issue, be executed, authenticated and
delivered by the Trustee to or upon the order of the Depositor concurrently
with the sale and assignment to the Trustee of the Trust Fund. Each Class of
the Regular Certificates shall be initially evidenced by one or more
Certificates representing a Percentage Interest with a minimum dollar
denomination of $25,000 and integral dollar multiples of $1 in excess thereof,
except that one Certificate of each such Class of Certificates may be in a
different denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Class Certificate Principal Balance
or Class Certificate Notional Balance of such Class on the Closing Date. The
Class A-R Certificate is issuable only in a Percentage Interest of 100%.
The Certificates shall be executed on behalf of the Trust by manual
or facsimile signature on behalf of the Trustee by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures were affixed, authorized to sign on
behalf of the Trustee shall bind the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement or be valid for any purpose, unless such
Certificate shall have been manually authenticated by the Trustee
substantially in the form provided for herein, and such authentication upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. Subject to
Section 5.02(c), the Senior Certificates (other than the Class A-R
Certificate) and the Class B-1, Class B-2 and Class B-3 Certificates shall be
Book-Entry Certificates. The Class A-R Certificate and the Class B-4, Class
B-5 and Class B-6 Certificates shall be Physical Certificates.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall cause to be kept at the Corporate
Trust Office a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for
the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall initially serve as
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Certificate Registrar maintained for such purpose
pursuant to the foregoing paragraph (or the deemed surrender of a Certificate
pursuant to Section 8.17(f) and, in the case of a Private Certificate or Class
A-R Certificate, upon satisfaction of the conditions set forth below, the
Trustee on behalf of the Trust shall execute, authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Certificates
of the same aggregate Percentage Interest.
At the option of the Certificateholders, Certificates may be
exchanged for other Certificates in authorized denominations and the same
aggregate Percentage Interests, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute on behalf of the Trust and
authenticate and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall (if so required by
the Trustee or the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer satisfactory to the Trustee
and the Certificate Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing.
(b) Except as provided in paragraph (c) below, the Book-Entry
Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration of such
Certificates may not be transferred by the Trustee or the Certificate
Registrar except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Certificates; (iii) ownership and transfers of
registration of such Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee shall for all purposes deal with
the Depository as representative of the Certificate Owners of the Certificates
for purposes of exercising the rights of Holders under this Agreement, and
requests and directions for and votes of such representative shall not be
deemed to be inconsistent if they are made with respect to different
Certificate Owners; (vi) the Trustee and the Certificate Registrar may rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and
Persons shown on the books of such indirect participating firms as direct or
indirect Certificate Owners; and (vii) the direct participants of the
Depository shall have no rights under this Agreement under or with respect to
any of the Certificates held on their behalf by the Depository, and the
Depository may be treated by the Trustee, the Certificate Registrar and their
respective agents, employees, officers and directors as the absolute owner of
the Certificates for all purposes whatsoever.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owners. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners that it represents or of brokerage firms for which it acts
as agent in accordance with the Depository's normal procedures. The parties
hereto are hereby authorized to execute a Letter of Representations with the
Depository or take such other action as may be necessary or desirable to
register a Book-Entry Certificate to the Depository. In the event of any
conflict between the terms of any such Letter of Representation and this
Agreement, the terms of this Agreement shall control.
(c) If (i)(x) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to discharge properly
its responsibilities as Depository and (y) the Trustee or the Depositor is
unable to locate a qualified successor, (ii) the Depositor, at its sole
option, with the consent of the Trustee, elects to terminate the book-entry
system through the Depository or (iii) after the occurrence of a Servicer
Event of Termination, the Certificate Owners of each Book-Entry Certificate
representing Percentage Interests of such Classes aggregating not less than
51% advises the Trustee and Depository through the Financial Intermediaries
and the Depository Participants in writing that the continuation of a
book-entry system through the Depository to the exclusion of definitive, fully
registered certificates (the "Definitive Certificates") to Certificate Owners
is no longer in the best interests of the Certificate Owners. Upon surrender
to the Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall, at the Depositor's expense, in the case of (ii) above, or
the Seller's expense, in the case of (i) and (iii) above, execute on behalf of
the Trust and authenticate the Definitive Certificates. Neither the Depositor
nor the Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, the Trustee, the
Certificate Registrar, each Servicer, any Paying Agent and the Depositor shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No transfer, sale, pledge or other disposition of any Private
Certificate shall be made unless such disposition is exempt from the
registration requirements of the 1933 Act, and any applicable state securities
laws or is made in accordance with the 1933 Act and laws. In the event of any
such transfer, (i) unless such transfer is made in reliance upon Rule 144A (as
evidenced by the investment letter delivered to the Trustee, in substantially
the form attached hereto as Exhibit I under the 1933 Act, the Trustee and the
Depositor shall require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to
the Trustee and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from
the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor or (ii) the
Trustee shall require the transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit J) and the transferee to
execute an investment letter (in substantially the form attached hereto as
Exhibit I) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which investment letter shall not be an
expense of the Trustee or the Depositor. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee, the Seller, each Servicer and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of an ERISA-Restricted Certificate that is also a
Physical Certificate shall be made unless the Trustee shall have received
either (i) a representation from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor (such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I hereto), to the effect that such transferee is not an employee benefit plan
or arrangement subject to Section 406 of ERISA or a plan subject to Section
4975 of the Code, nor a person acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect
such transfer or (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60") and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in
the case of any ERISA-Restricted Certificate that is also a Physical
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or a plan or arrangement 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 or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel
satisfactory to the Trustee which Opinion of Counsel shall not be an expense
of either the Trustee or the Trust, addressed to the Trustee, to the effect
that the purchase and holding of such ERISA-Restricted Certificate that is
also a Physical Certificate will not result in the assets of the Trust being
deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee to any
obligation in addition to those expressly undertaken in this Agreement or to
any liability. Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate that is also a Physical
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code without the delivery to the Trustee of an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.
In the case of an ERISA-Restricted Certificate that is also a
Book-Entry Certificate, for purposes of clauses (i) or (ii) of the first
sentence of the preceding paragraph, such representations shall be deemed to
have been made to the Trustee by the transferee's acceptance of such
ERISA-Restricted Certificate that is also a Book-Entry Certificate (or the
acceptance by a Certificate Owner of the beneficial interest in such
Certificate).
To the extent permitted under applicable law (including, but not
limited to, ERISA), neither the Trustee nor the Certificate Registrar shall
have any liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to the Holder
thereof or taking any other action with respect to such Holder under the
provisions of this Agreement so long as the transfer was registered by the
Trustee or the Certificate Registrar in accordance with the foregoing
requirements. In addition, neither the Trustee nor the Certificate Registrar
shall be required to monitor, determine or inquire as to compliance with the
transfer restrictions with respect to any ERISA-Restricted Certificates in the
form of Book-Entry Certificates, and neither the Trustee nor the Certificate
Registrar shall have any liability for transfers of Book-Entry Certificates or
any interests therein made in violation of the restrictions on transfer
described in the Prospectus Supplement and this Agreement.
(e) Each Person who has or who acquires any Ownership Interest in the
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably appointed the Depositor or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause (v)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in the Class A-R Certificate are expressly
subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
the Class A-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 the Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of the Class A-R Certificate
unless, in addition to the certificates required to be delivered
under subsection (b) above, the Trustee shall have been furnished
with an affidavit ("Transfer Affidavit") of the initial owner or
proposed transferee in the form attached hereto as Exhibit L.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Class A-R Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to it,
in form and substance satisfactory to it, of each of the following:
A. a Transferor Certificate in the form of Exhibit
K hereto from the proposed transferee to the effect that
such transferee is a Permitted Transferee and that it is not
acquiring an Ownership Interest in the Class A-R Certificate
that is the subject of the proposed transfer as a nominee,
trustee or agent for any Person who is not a Permitted
Transferee; and
B. a covenant of the proposed transferee to the effect
that the proposed transferee agrees to be bound by and to
abide by the transfer restrictions applicable to the Class
A-R Certificate.
(iv) Any attempted or purported Transfer of any Ownership Interest in
the Class A-R Certificate in violation of the provisions of this Section shall
be absolutely null and void and shall vest no rights in the purported
transferee. If any purported transferee shall, in violation of the provisions
of this Section, become a Holder of the Class A-R Certificate, then the prior
Holder of the Class A-R Certificate that is a Permitted Transferee shall, upon
discovery that the registration of Transfer of the Class A-R Certificate was
not in fact permitted by this Section, be restored to all rights as Holder
thereof retroactive to the date of registration of transfer of the Class A-R
Certificate. Neither the Trustee nor the Certificate Registrar shall have any
liability to any Person for any registration of Transfer of the Class A-R
Certificate that is in fact not permitted by this Section or for making any
distributions due on the Class A-R Certificate to the Holder thereof or taking
any other action with respect to such Holder under the provisions of this
Agreement so long as the Trustee received the documents specified in clause
(iii). The Trustee shall be entitled to recover from any Holder of the Class
A-R Certificate that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on the Class A-R Certificate.
Any such distributions so recovered by the Trustee shall be distributed and
delivered by the Trustee to the last Holder of the Class A-R Certificate that
is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any
Ownership Interest in the Class A-R Certificate in violation of the
restrictions in this Section, then the Trustee shall have the right but not
the obligation, without notice to the Holder of the Class A-R Certificate or
any other Person having an Ownership Interest therein, to notify the Depositor
to arrange for the sale of the Class A-R Certificate. The proceeds of such
sale, net of commissions (which may include commissions payable to the
Depositor or its affiliates in connection with such sale), expenses and taxes
due, if any, will be remitted by the Trustee to the previous Holder of the
Class A-R Certificate that is a Permitted Transferee, except that in the event
that the Trustee determines that the Holder of the Class A-R Certificate may
be liable for any amount due under this Section or any other provisions of
this Agreement, the Trustee may withhold a corresponding amount from such
remittance as security for such claim. The terms and conditions of any sale
under this clause (v) shall be determined in the sole discretion of the
Trustee and it shall not be liable to any Person having an Ownership Interest
in the Class A-R Certificate as a result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires any
Ownership Interest in the Class A-R Certificate in violation of the
restrictions in this Section, then the Trustee upon receipt of reasonable
compensation will provide to the Internal Revenue Service, and to the persons
specified in Sections 860E(e)(3) and (6) of the Code, information needed to
compute the tax imposed under Section 860E(e)(5) of the Code on transfers of
residual interests to disqualified organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee and the Servicer, in form and substance satisfactory to the Trustee,
(i) written notification from the Rating Agencies that the removal of the
restrictions on Transfer set forth in this Section will not cause such Rating
Agency to downgrade its rating of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause either REMIC hereunder
to fail to qualify as a REMIC.
(e) No service charge shall be made for any registration of transfer
or exchange of Certificates of any Class, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled by the Certificate Registrar and disposed of pursuant to
its standard procedures.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate and (ii) there is
delivered to the Trustee, the Depositor and the Certificate Registrar such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser,
the Trustee shall execute on behalf of the Trust, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Percentage Interest. Upon the
issuance of any new Certificate under this Section, the Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) in connection therewith. Any duplicate Certificate
issued pursuant to this Section, shall constitute complete and indefeasible
evidence of ownership in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
Each Servicer, the Depositor, the Trustee, the Certificate Registrar,
any Paying Agent and any agent of any Servicer, the Depositor, the Certificate
Registrar, any Paying Agent or the Trustee may treat the Person, including a
Depository, in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
4.01 hereof and for all other purposes whatsoever, and none of any Servicer,
the Trust, the Trustee, the Certificate Registrar, the Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
SECTION 5.05. Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to Certificateholders
from the Distribution Account pursuant to Section 4.01 hereof and shall report
the amounts of such distributions to the Trustee. The duties of the Paying
Agent may include the obligation (i) to withdraw funds from the Collection
Accounts pursuant to Section 3.11(a) hereof and for the purpose of making the
distributions referred to above and (ii) to distribute statements and provide
information to Certificateholders as required hereunder. The Paying Agent
hereunder shall at all times be an entity duly incorporated and validly
existing under the laws of the United States of America or any state thereof,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal or state authorities. The Paying Agent
shall initially be the Trustee. The Trustee may appoint a successor to act as
Paying Agent, which appointment shall be reasonably satisfactory to the
Depositor.
(b) The Trustee shall cause the Paying Agent (if other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent shall hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders and shall agree that it shall comply
with all requirements of the Code regarding the withholding of payments in
respect of federal income taxes due from Certificate Owners and otherwise
comply with the provisions of this Agreement applicable to it.
ARTICLE VI
THE SELLER, THE SERVICERS AND THE DEPOSITOR
SECTION 6.01. Liability of the Seller, the Servicers and the
Depositor.
The Seller and each Servicer shall be liable in accordance herewith
only to the extent of the obligations specifically imposed upon and undertaken
by the Seller or such Servicer, as the case may be, herein. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Depositor herein.
SECTION 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Seller, a Servicer or the Depositor.
Any entity into which the Seller, any Servicer or the Depositor may
be merged or consolidated, or any entity resulting from any merger, conversion
or consolidation to which the Seller, any Servicer or the Depositor shall be a
party, or any corporation succeeding to the business of the Seller, any
Servicer or the Depositor, shall be the successor of the Seller, such Servicer
or the Depositor, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that the successor Servicer shall satisfy all the requirements of Section 7.02
hereof with respect to the qualifications of a successor Servicer.
SECTION 6.03. Limitation on Liability of the Servicers and Others.
Neither any Servicer nor any of the directors or officers or
employees or agents of any Servicer shall be under any liability to the Trust
or the Certificateholders for any action taken or for refraining from the
taking of any action by such Servicer in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect any such Servicer or any such Person against any liability
that would otherwise be imposed by reason of its willful misfeasance, bad
faith or negligence in the performance of duties of such Servicer or by reason
of such Servicer's failure to perform its obligations and duties hereunder;
and, provided further, that this provision shall not be construed to entitle
any Servicer to indemnity in the event that amounts advanced by such Servicer
to retire any senior lien exceed Liquidation Proceeds (in excess of related
liquidation expenses) realized with respect to the related Mortgage Loan. The
preceding sentence shall not limit the obligations of each Servicer pursuant
to Section 8.05 hereof. Each Servicer and any director or officer or employee
or agent of any 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. Each Servicer and any director or officer or
employee or agent of any Servicer shall be indemnified by the Trust and held
harmless against any loss, liability or expense incurred in connection with
any legal action relating to this Agreement or the Certificates, other than
any loss, liability or expense related to any specific related 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 its willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of its failure to perform
its obligations and duties hereunder. Each Servicer may undertake any such
action which it may deem necessary or desirable in respect of this Agreement,
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. Each Servicer's right to indemnity or
reimbursement pursuant to this Section shall be subject to the payment
priority described in Section 4.01(a) hereof and shall survive any resignation
or termination of such Servicer pursuant to Section 6.04 or 7.01 hereof with
respect to any losses, expenses, costs or liabilities arising prior to such
resignation or termination (or arising from events that occurred prior to such
resignation or termination). This paragraph shall apply to each Servicer
solely in its capacity as Servicer hereunder and in no other capacities.
SECTION 6.04. Servicers Not to Resign.
Subject to the provisions of Section 7.01 and Section 6.02 hereof, a
Servicer shall not resign from the obligations and duties hereby imposed on it
except (i) upon determination that the performance of such Servicer's
obligations or duties hereunder are no longer permissible under applicable law
or are in material conflict by reason of applicable law with any other
activities carried on by such Servicer or its subsidiaries or Affiliates, the
other activities of such Servicer so causing such a conflict being of a type
and nature carried on by such Servicer or its subsidiaries or Affiliates at
the date of this Agreement or (ii) upon satisfaction of the following
conditions: (a) such Servicer has proposed a successor Servicer to the Trustee
in writing and such proposed successor Servicer is acceptable to the Trustee,
(b) each Rating Agency shall have delivered a letter to the Trustee prior to
the appointment of the successor Servicer stating that the proposed
appointment of such successor Servicer as a Servicer hereunder will not result
in the reduction or withdrawal of the then current rating of the Regular
Certificates; provided, however, that no such resignation by any such Servicer
shall become effective until such successor servicer or, in the case of clause
(i) above, the Trustee shall have assumed such Servicer's responsibilities and
obligations hereunder or, in the case of clause (ii) above, the Trustee shall
have designated a successor servicer in accordance with Section 7.02 hereof.
Any such resignation shall not relieve the resigning Servicer of
responsibility for any of the obligations specified in Sections 7.01 and 7.02
hereof as obligations that survive the resignation or termination of such
Servicer. Any such determination permitting the resignation of a Servicer
pursuant to clause (i) above shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee.
SECTION 6.05. Delegation of Duties.
In the ordinary course of business, a Servicer at any time may
delegate any of its duties hereunder to any Person, including any of such
Servicer's Affiliates, who agrees to conduct such duties in accordance with
standards comparable to those set forth in Section 3.01 hereof. Such
delegation shall not relieve such Servicer of its liabilities and
responsibilities with respect to such duties and shall not constitute a
resignation within the meaning of Section 6.04 hereof.
ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Events of Termination.
(a) If any one of the following events (each, a "Servicer Event of
Termination") shall occur and be continuing:
(i) the failure by a Servicer to make any Advance or to deposit
in the applicable Collection Account or the Distribution Account any
deposit required to be made under the terms of this Agreement, which
continues unremedied for a period of three Business Days after the
date upon which written notice of such failure requiring the same to
be remedied shall have been given to such Servicer by any other
Person; or
(ii) the failure by a Servicer to make any required Servicing
Advance which failure continues unremedied for a period of 30 days,
or the failure by a Servicer duly to observe or perform, in any
material respect, any other covenants, obligations or agreements of
such Servicer as set forth in this Agreement, which failure
continues unremedied for a period of 30 days, after the date (A) on
which written notice of such failure, requiring the same to be
remedied, shall have been given to such Servicer by the Trustee or
to such Servicer and the Trustee by Holders of Regular Certificates
evidencing at least 25% of the Voting Rights or (B) actual knowledge
of such failure by a Servicing Officer of such Servicer; or
(iii) the entry against a Servicer of a decree or order by a
court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of such
Servicer's affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 days; or
(iv) a Servicer shall voluntarily go into liquidation, consent
to the appointment of a conservator or receiver or liquidator or
similar person in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to
such Servicer or of or relating to all or substantially all of such
Servicer's property; or a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver, liquidator or similar person
in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of such Servicer's affairs, shall have been entered
against such Servicer and such decree or order shall have remained
in force undischarged, unbonded or unstayed for a period of 60 days;
or such Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations;
(b) then, and in each and every such case, so long as a Servicer
Event of Termination with respect to a given Servicer shall not have been
remedied within the applicable grace period in the case of (ii), (iii) and
(iv) above, the Trustee may, and at the direction of the Holders of each Class
of Regular Certificates evidencing Percentage Interests aggregating not less
than 51%, by notice then given in writing to such Servicer (and to the Trustee
if given by Holders of Certificates) shall, terminate all of the rights and
obligations of such Servicer as a servicer under this Agreement. Any such
notice to any such Servicer shall also be given to the Rating Agencies, the
Depositor and the Seller. On or after the receipt by a Servicer (and by the
Trustee if such notice is given by the Holders) of such written notice, all
authority and power of such Servicer under this Agreement, whether with
respect to the Certificates or the related Mortgage Loans or otherwise, shall
pass to and be vested in the Trustee; and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of any such
terminated Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement of each Mortgage Loan and
related documents or otherwise. Each Servicer agrees to cooperate with the
Trustee in effecting the termination of the responsibilities and rights of
such Servicer hereunder, including, without limitation, the delivery to the
Trustee of all documents and records requested by it to enable it to assume
such Servicer's functions under this Agreement within ten Business Days
subsequent to such notice, the transfer within one Business Day subsequent to
such notice to the Trustee for the administration by it of all cash amounts
that shall at the time be held by such Servicer and to be deposited by it in
the related Collection Account, the Distribution Account, any related REO
Account or any related Servicing Account or that have been deposited by such
Servicer in such accounts or thereafter received by such Servicer with respect
to the related Mortgage Loans or any REO Property received by such Servicer.
In connection with the termination of a Servicer, the Trustee will be
entitled to be reimbursed by the Trust Fund (in the event that such Servicer
does not timely reimburse the Trustee) for all of the reasonable costs
associated with the termination of such Servicer, appointment of any successor
Servicer and the transfer of the related servicing to a successor Servicer,
including without limitation all reasonable costs and expenses associated with
the completion, correction or manipulation of servicing data as may be
required to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee or the successor Servicer to service the
related Mortgage Loans properly and effectively.
SECTION 7.02. Trustee to Act; Appointment of Successor.
(a) Within not more than 90 days from the date a Servicer (and the
Trustee, if notice is sent by the Holders) receives a notice of termination
pursuant to Section 7.01, the Trustee (or any successor Servicer appointed by
the Trustee in accordance with this Section 7.02) shall be the successor in
all respects to such terminated Servicer in its capacity as a 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 such Servicer by the terms and provisions hereof arising on
and after its succession. As compensation therefor, the Trustee shall be
entitled to such compensation as such Servicer would have been entitled to
hereunder if no such notice of termination had been given. Notwithstanding the
above, (i) if the Trustee is unwilling to act as successor Servicer or (ii) if
the Trustee is legally unable so to act, the Trustee shall appoint or petition
a court of competent jurisdiction to appoint, any established housing and home
finance institution, bank or other mortgage loan or home equity loan servicer
having a net worth of not less than $15,000,000 as the successor to such
terminated Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of such terminated Servicer hereunder;
provided, however, that the appointment of any such successor Servicer shall
not result in the qualification, reduction or withdrawal of the ratings that
are in effect on the Certificates by the Rating Agencies as evidenced by a
letter to such effect from the Rating Agencies. Pending appointment of a
successor to a Servicer hereunder, unless the Trustee is prohibited by law
from so acting, the Trustee shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the successor
shall be entitled to receive compensation out of payments on related Mortgage
Loans in an amount equal to the compensation which the predecessor Servicer
would otherwise have received pursuant to Section 3.18 hereof. The appointment
of a successor Servicer shall not affect any liability of the predecessor
Servicer which may have arisen under this Agreement prior to its termination
as Servicer, including without limitation any liability to pay any deductible
under an insurance policy pursuant to Section 3.14 hereof or to indemnify the
Trustee pursuant to Section 8.05 hereof), nor shall any successor Servicer be
liable for any acts or omissions of the predecessor Servicer or for any breach
by such Servicer of any of its representations or warranties contained herein
or in any related document or agreement. The Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
In connection with the termination or resignation of Countrywide
hereunder, either (i) the successor Servicer to Countrywide, including the
Trustee if the Trustee is acting as successor Servicer to Countrywide, 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 Countrywide Loans that are registered
with MERS, or (ii) Countrywide shall cooperate with the successor Servicer
either (x) 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
Servicer or (y) in causing MERS to designate on the MERS(R) System the
successor Servicer as the Servicer of such Countrywide Loan. Countrywide shall
file or cause to be filed any such assignment in the appropriate recording
office. The successor Servicer to Countrywide shall cause such assignment to
be delivered to the Trustee 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.
(b) Any successor, including the Trustee, to a Servicer shall, during
the term of its service as a Servicer, continue to service and administer the
related Mortgage Loans for the benefit of Certificateholders, and maintain in
force a policy or policies of insurance covering errors and omissions in the
performance of its obligations as a Servicer hereunder and a Fidelity Bond in
respect of its officers, employees and agents to the same extent as each
Servicer is so required pursuant to Section 3.14 hereof.
SECTION 7.03. Waiver of Servicer Events of Termination.
The Majority Certificateholders may, on behalf of all
Certificateholders, by notice in writing to a Servicer and the Trustee, waive
any events permitting removal of such Servicer as a servicer pursuant to this
Article VII, provided, however, that the Majority Certificateholders may not
waive an event that results in a failure to make any required distribution on
a Certificate without the consent of the Holder of such Certificate. Upon any
waiver of a Servicer Event of Termination, such event shall cease to exist and
any Servicer Event of Termination arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other event or impair any right consequent thereto except
to the extent expressly so waived. Notice of any such waiver shall be given by
the Trustee to the Rating Agencies.
SECTION 7.04. Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to any
Servicer pursuant to this Article VII or Section 6.04 hereof, the Trustee
shall give prompt written notice thereof to the Certificateholders at their
respective addresses appearing in the Certificate Register and to the Rating
Agencies.
(b) No later than 60 days after the occurrence of any event which
constitutes or which, with notice or a lapse of time or both, would constitute
a Servicer Event of Termination for five Business Days after a Responsible
Officer of the Trustee becomes aware of the occurrence of such an event, the
Trustee shall transmit by mail to all Certificateholders notice of such
occurrence unless such Servicer Event of Termination shall have been waived or
cured.
SECTION 7.05. Survivability of Servicer Liabilities.
Notwithstanding anything herein to the contrary, upon termination of
a Servicer hereunder, any liabilities of such Servicer which accrued prior to
such termination shall survive such termination.
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of a Servicer Event of
Termination and after the curing or waiver of all Servicer Events of
Termination which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement. If a
Servicer Event of Termination has occurred (which has not been cured or
waived) of which a Responsible Officer has knowledge, 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 man would
exercise or use under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that the Trustee will not be responsible for the accuracy or content of any
such resolutions, certificates, statements, opinions, reports, documents or
other instruments. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner the Trustee shall take
such action as it deems appropriate to have the instrument corrected.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) prior to the occurrence of a Servicer Event of Termination,
and after the curing of all such Servicer Events of Termination
which may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee and, in the absence
of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining or investigating the facts related thereto;
(iii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the consent or at the direction of Holders
of Certificates as provided herein relating to the time, method and
place of conducting any remedy pursuant to this Agreement, or
exercising or omitting to exercise any trust or power conferred upon
the Trustee, under this Agreement; and
(iv) the Trustee shall not be charged with knowledge of any
Servicer Event of Termination unless a Responsible Officer of the
Trustee at the Corporate Trust Office obtains actual knowledge of
such failure or the Trustee receives written notice of such Servicer
Event of Termination from the related Servicer or the Majority
Certificateholders.
The Trustee acknowledges that the Cendant Loans are being serviced by
Cendant in accordance with the provisions of the Greenwich Servicing Contract
and the Trustee agrees to enforce its rights (other than any rights contained
in Section 7.01 or Section 7.02 thereof) against Cendant as servicer
thereunder. The Trustee acknowledges that the MLCC Loans are being serviced by
MLCC in accordance with the provisions of the Greenwich Servicing Contract and
the Trustee agrees to enforce its rights (other than any rights contained in
Section 7.01 or Section 7.02 thereof) against MLCC as servicer thereunder. The
Trustee, as assignee of the Greenwich Servicing Contract, the Cendant Loans
and the MLCC Loans, agrees to be bound by all the terms, covenants and
conditions of the Greenwich Servicing Contract (other than the provisions of
Section 7.01 and Section 7.02 thereof) as if the Trustee were the "Owner"
thereunder.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of,
any of the obligations of a Servicer under this Agreement, except during such
time, if any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, a Servicer in accordance with the
terms of this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01 hereof:
(i) the Trustee may request and rely upon, and shall be
protected in acting or refraining from acting upon, any resolution,
Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties, and the manner of
obtaining consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such
reasonable regulations as the Trustee may prescribe;
(ii) the Trustee may consult with counsel and any written
advice of its counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation hereunder or in relation
hereto, at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the right of
the Trustee to perform any discretionary act enumerated in this
Agreement shall not be construed as a duty, and the Trustee shall
not be answerable for other than its negligence or willful
misconduct in the performance of any such act;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of a Servicer Event of Termination
and after the curing or waiver of all Servicer Events of Termination
which may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or documents,
unless requested in writing to do so by the Majority
Certificateholder; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such cost, expense
or liability as a condition to such proceeding. The reasonable
expense of every such examination shall be paid by each Servicer to
which such examination relates, pro rata, or, if paid by the
Trustee, shall be reimbursed by each such Servicer upon demand (or
if any Servicer fails to reimburse the Trustee, by the Trust Fund).
Nothing in this clause (v) shall derogate from the obligation of
each Servicer to observe any applicable law prohibiting disclosure
of information regarding the Mortgagors;
(vi) the Trustee shall not be accountable, shall have no
liability and makes no representation as to any acts or omissions
hereunder of a Servicer until such time as the Trustee may be
required to act as a Servicer pursuant to Section 7.02 hereof and
thereupon only for the acts or omissions of the Trustee as a
successor Servicer;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian; and
(viii) the right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty,
and the Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of such act.
SECTION 8.03. Trustee Not Liable for Certificates, Mortgage Loans or
Additional Collateral.
The recitals contained herein and in the Certificates (other than the
authentication of the Trustee on the Certificates) shall be taken as the
statements of the Seller, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates (other than
the signature and authentication of the Trustee on the Certificates) or of any
Mortgage Loan or related document or of MERS or the MERS System. The Trustee
shall not be accountable for the use or application by any Servicer, or for
the use or application of any funds paid to any Servicer in respect of related
Mortgage Loans or deposited in or withdrawn from the applicable Collection
Account by such Servicer. The Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability
of any Mortgage or any Mortgage Loan, or the perfection and priority of any
Mortgage or the maintenance of any such perfection and priority, or for or
with respect to the sufficiency of the Trust or its ability to generate the
payments to be distributed to Certificateholders under this Agreement,
including, without limitation: the existence, condition and ownership of any
Mortgaged Property; the existence and enforceability of any hazard insurance
thereon (other than if the Trustee shall assume the duties of a Servicer
pursuant to Section 7.02 hereof); the validity of the assignment of any
Mortgage Loan to the Trustee or of any intervening assignment; the
completeness of any Mortgage Loan; the performance or enforcement of any
Mortgage Loan (other than if the Trustee shall assume the duties of a Servicer
pursuant to Section 7.02); the compliance by the Depositor, the Seller or any
Servicer with any warranty or representation made under this Agreement or in
any related document or the accuracy of any such warranty or representation
prior to the Trustee's receipt of notice or other discovery of any
non-compliance therewith or any breach thereof; any investment of monies by or
at the direction of a Servicer or any loss resulting therefrom, it being
understood that the Trustee shall remain responsible for any Trust property
that it may hold in its individual capacity; the acts or omissions of any
Servicer (other than if the Trustee shall assume the duties of a Servicer
pursuant to Section 7.02 and then only for the acts or omissions of the
Trustee as a successor Servicer), any Sub-Servicer or any Mortgagor; any
action of any Servicer (other than if the Trustee shall assume the duties of a
Servicer pursuant to Section 7.02), or any Sub-Servicer taken in the name of
the Trustee; the failure of any Servicer or any Sub-Servicer to act or perform
any duties required of it as agent of the Trustee hereunder; or any action by
the Trustee taken at the instruction of any Servicer (other than if the
Trustee shall assume the duties of a Servicer pursuant to Section 7.02 and
then only for the actions of the Trustee as a successor Servicer); provided,
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties under this Agreement, including, without limitation, the
Trustee's duty to review the Mortgage Files, if so required pursuant to
Section 2.01 hereof. The Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become a successor
Servicer).
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact any banking and trust
business with the Seller, any Servicer, the Depositor or their Affiliates with
the same rights as it would have if it were not Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for all services rendered by the Trustee
in the exercise and performance of any of the powers and duties hereunder,
shall be entitled to withdraw from the Distribution Account on each
Distribution Date an amount equal to the Trustee Fee for such Distribution
Date. The Trust Fund shall pay or reimburse the Trustee upon request on any
Distribution Date for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Agreement during the related Due Period (including but not limited to
Section 7.01 and Section 8.02(v) hereof and including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith or which is the
responsibility of Certificateholders or the Trustee hereunder. On each such
Distribution Date, the Trustee shall be entitled to withdraw from the
Distribution Account the amount of such payment or reimbursement for such
Distribution Date. In addition, the Trust Fund shall indemnify the Trustee and
its officers, directors, employees and agents from, and hold it harmless
against, any and all losses, liabilities, damages, claims or expenses incurred
in connection with any legal action relating to this Agreement, the Trust Fund
or the Certificates, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence of the Trustee in the
performance of its duties hereunder or by reason of the Trustee's reckless
disregard of obligations and duties hereunder. This section shall survive
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 an entity duly organized
and validly existing under the laws of the United States of America or any
state thereof, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and a minimum
long-term debt rating of BBB by S&P and Fitch and a short-term rating of at
least F-1 by Fitch, if rated by Fitch, and in one of S&P's two highest
short-term rating categories, and subject to supervision or examination by
federal or state authority. If such entity publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section
8.06, the combined capital and surplus of such entity shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. The principal office of the Trustee (other than the
initial Trustee) shall be in a state with respect to which an Opinion of
Counsel has been delivered to such Trustee at the time such Trustee is
appointed Trustee to the effect that the Trust will not be a taxable entity
under the laws of such state. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 8.06, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 8.07 hereof.
SECTION 8.07. Resignation or Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Seller,
each Servicer and the Rating Agencies. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof or if at any time the Trustee shall
be legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Depositor may remove the Trustee. If the Depositor removes the Trustee
under the authority of the immediately preceding sentence, the Depositor shall
promptly appoint a successor Trustee by written instrument, in quadruplicate,
one copy of which instrument shall be delivered to each Servicer, one copy to
the Trustee so removed and one copy to the successor trustee.
The Majority Certificateholders may at any time remove the Trustee by
written instrument or instruments delivered to each Servicer, the Depositor
and the Trustee; the Depositor shall thereupon use its best efforts to appoint
a successor trustee in accordance with this Section.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee
as provided in Section 8.08 hereof.
SECTION 8.08. Successor Trustee.
Any successor Trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor, the Seller, each
Servicer and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective, and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as Trustee. The Depositor, the Seller,
each Servicer and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 8.06 hereof and the
appointment of such successor Trustee shall not result in a downgrading of the
Senior Certificates by either Rating Agency, as evidenced by a letter from
each Rating Agency.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, the successor Trustee shall mail notice of the appointment
of a successor Trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to each Rating Agency.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided such entity shall be eligible under the
provisions of Section 8.06 and 8.08 hereof, without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust or any Mortgaged Property may at the time be located,
each Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons, with the
consent of the Depositor, which consent shall not be unreasonably withheld,
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Servicers and the
Trustee may consider necessary or desirable. Any such co-trustee or separate
trustee shall be subject to the written approval of each Servicer. If a
Servicer Event of Termination shall have occurred and be continuing with
respect to one or more Servicers, the remaining Servicers--or, if a Servicer
Event of Termination shall have occurred and be continuing with respect to all
of the Servicers, the Trustee alone--shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereof, and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.08 hereof.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to
be performed (whether as Trustee hereunder or as successor to a
Servicer hereunder), the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) each Servicer and the Trustee, acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee except that if a Servicer Event of Termination shall have
occurred and be continuing with respect to one or more Servicers,
the remaining Servicers--or, if a Servicer Event of Termination
shall have occurred and be continuing with respect to all of the
Servicers, the Trustee alone--may accept the resignation or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Depositor and each Servicer.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
SECTION 8.11. Limitation of Liability.
The Certificates are executed by the Trustee, not in its individual
capacity but solely as Trustee of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the
undertakings and agreements made on the part of the Trustee in the
Certificates is made and intended not as a personal undertaking or agreement
by the Trustee but is made and intended for the purpose of binding only the
Trust.
SECTION 8.12. Trustee May Enforce Claims Without Possession of
Certificates.
(a) All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee
shall be brought in its own name or in its capacity as Trustee for the benefit
of all Holders of such Certificates, subject to the provisions of this
Agreement. Any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursement and advances of the
Trustee, its agents and counsel, be for the ratable benefit or the
Certificateholders in respect of which such judgment has been recovered.
(b) The Trustee shall afford the Seller, the Depositor, each Servicer
and each Certificateholder upon reasonable notice during normal business hours
at its Corporate Trust Office or other office designated by the Trustee,
access to all records maintained by the Trustee in respect of its duties
hereunder and access to officers of the Trustee responsible for performing
such duties. Upon request, the Trustee shall furnish the Depositor, each
Servicer and any requesting Certificateholder with its most recent audited
financial statements. The Trustee shall cooperate fully with the Seller, each
Servicer, the Depositor and such Certificateholder and shall, subject to the
first sentence of this Section 8.12(b), make available to the Seller, each
Servicer, the Depositor and such Certificateholder for review and copying such
books, documents or records as may be requested with respect to the Trustee's
duties hereunder. The Seller, the Depositor, the Servicers and the
Certificateholders shall not have any responsibility or liability for any
action or failure to act by the Trustee and are not obligated to supervise the
performance of the Trustee under this Agreement or otherwise.
SECTION 8.13. Suits for Enforcement.
In case a Servicer Event of Termination or other default by any
Servicer or the Depositor hereunder shall occur and be continuing, the Trustee
may proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution
of any power granted in this Agreement or for the enforcement of any other
legal, equitable or other remedy, as the Trustee, being advised by counsel,
and subject to the foregoing, shall deem most effectual to protect and enforce
any of the rights of the Trustee and the Certificateholders.
SECTION 8.14. Waiver of Bond Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee post a bond or other surety with any
court, agency or body whatsoever.
SECTION 8.15. Waiver of Inventory, Accounting and Appraisal
Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
SECTION 8.16. Appointment of Custodians.
The Trustee may, with the consent of a Servicer, appoint one or more
custodians to hold all or a portion of the related Mortgage Files as agent for
the Trustee, by entering into a Custodial Agreement. The custodian may at any
time be terminated by such Servicer and a substitute custodian appointed
therefor with the consent of the Trustee, which consent shall not be
unreasonably withheld. Subject to this Article VIII, the Trustee agrees to
comply with the terms of each Custodial Agreement and to enforce the terms and
provisions thereof against the custodian for the benefit of the
Certificateholders having an interest in any Mortgage File held by such
custodian. Each custodian shall be a depository institution or trust company
subject to supervision by federal or state authority, shall have combined
capital and surplus of at least $15,000,000 and shall be qualified to do
business in the jurisdiction in which it holds any Mortgage File. The
applicable Servicer shall pay from its own funds, without any right to
reimbursement, the fees, costs and expenses of each custodian (including the
costs of custodian's counsel).
SECTION 8.17. Put and Call.
(a) During the applicable Put and Call Period, each Class IA-1, Class
IA-2 and Class IIIA Certificateholder that holds a related Senior Put Option,
or in the event that such Class of Senior Certificates is still held in
book-entry form, each Beneficial Holder that holds a related Senior Put
Option, may exercise its Senior Put Option by written notice to the Trustee
or, to the extent that the Class IA-1, Class IA-2 and Class IIIA Certificates
are still held in book-entry form, to DTC and to the Trustee. Notice by a
Class IA-1, Class IA-2 or Class IIIA Certificateholder or Beneficial Holder,
as applicable, of the exercise of its Senior Put Option shall be irrevocable.
With respect to any Class IA-1, Class IA-2 and Class IIIA Certificate
for which the related Certificateholders have not exercised their Senior Put
Option, CDC may exercise their Senior Call Option by written notice to the
Trustee. Notwithstanding anything to the contrary herein, CDC may exercise its
Senior Call Option (i) with respect to all, but not less than all, of the
Class IA-1 and Class IA-2 Certificates and (ii) with respect to all, but not
less than all, of the Class IIIA Certificates.
(b) At the end of each applicable Put and Call Period, based on
information obtained by the Trustee from DTC with respect to Book-Entry
Certificates, if applicable, the Trustee shall notify CDC in writing of the
number of Class IA-1, Class IA-2 and Class IIIA Certificateholders, or
Beneficial Holders, as applicable, who have exercised the Senior Put Option
and the Percentage Interest of the Class Certificate Principal Balance of each
such Class held by such Certificateholders or Beneficial Holders, as
applicable.
(c) The Trustee shall notify each holder of a Certificate for which
the related Senior Call Option was exercised consistent with the notification
requirements of Section 10.01(b).
(d) CDC shall, one (1) Business Day prior to the Distribution Date on
which the purchase pursuant to the applicable Senior Put Option or Senior Call
Option is scheduled to occur, deposit into the Distribution Account (by wire
transfer in immediately available funds to the Trustee) the Put and Call
Purchase Price for each Class of Senior Certificates for which CDC has
exercised its Senior Call Option and (without duplication) for each
Certificate for which the related Senior Put Option has been exercised.
(e) On each Put and Call Date, with respect to each Certificate for
which the Senior Put Option was exercised, or as to all Certificates of such
applicable Class if the Senior Call Option was exercised with respect thereto,
the Trustee shall withdraw from the Distribution Account the applicable Put
and Call Purchase Price and distribute it to the related Certificateholder by
wire transfer in immediately available funds for the account of such
Certificateholder, or by any other means of payment as specified by such
Certificateholder and at the address of such Holder appearing in the
Certificate Register, provided that such payment shall only be made after
presentation and surrender of the Certificate if the Certificates are no
longer held in book-entry form.
(f) With respect to each Book-Entry Certificate for which CDC has
exercised the related Senior Call Option and deposited the aggregate
applicable Put and Call Purchase Price into the Distribution Account on the
related Put and Call Date, the transfer of the Ownership Interest in such
Book-Entry Certificate to CDC, as Certificate Owner, shall be effected by the
applicable Depository Participant (or the applicable indirect participant in
the Depository, as the case may be) upon notice by the Trustee. Upon such
transfer, the Certificate Owner of such Book-Entry Certificate prior to such
exercise of such Senior Call Option shall cease to have any Ownership Interest
in such Book-Entry Certificate on or after the related Put and Call Date.
Notwithstanding any provision herein to the contrary, with respect to each
Definitive Certificate for which CDC has exercised the related Senior Call
Option and deposited the aggregate applicable Put and Call Purchase Price into
the Distribution Account on the related Put and Call Date, the Holder of such
Definitive Certificate prior to such exercise of such Senior Call Option shall
be deemed to have surrendered such Definitive Certificate to the Certificate
Registrar for transfer to CDC. On such Put and Call Date, the Trustee shall
cause the Certificate Registrar to note in the Certificate Register the
registration of the transfer of such Definitive Certificate to CDC, and CDC
shall be recognized as the Record Holder of such Definitive Certificate. Each
Holder of a Class IA-1, Class IA-2 or Class IIIA Certificate is deemed, by
acceptance of any such Certificate, to acknowledge and accept the provisions
of this Section 8.17(f).
The Trustee shall treat the Senior Put Option as a contractual right
combined with a regular interest within the meaning of Treasury regulation ss.
1.860G-2(i) and will account for the Senior Put Option separately from the
corresponding Class IA-1, Class IA-2 or Class IIIA Certificates.
ARTICLE IX
REMIC ADMINISTRATION
SECTION 9.01. REMIC Administration.
(a) As set forth in the Preliminary Statement to this Agreement, two
REMIC elections shall be made by the Trustee on Form 1066 or other appropriate
federal tax or information return for the taxable year ending on the last day
of the calendar year in which the Certificates are issued. The regular
interests in each REMIC and the related residual interest shall be as
designated in the Preliminary Statement. Following the Closing Date, the
Trustee shall apply to the IRS for an employer identification number for each
REMIC created hereunder by means of a Form SS-4 or other acceptable method.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC created hereunder within the meaning of section 86OG(a)(9) of the
Code.
(c) Except as provided in subsection (d) of this Section 9.01, the
Seller shall pay any and all tax related expenses (not including taxes) of
each REMIC created hereunder, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial
proceedings with respect to such REMIC that involve the Internal Revenue
Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Seller in fulfilling its duties
hereunder (including its duties as tax return preparer). The Seller shall be
entitled to reimbursement of expenses referred to in clause (i) above from
each Collection Account, pro rata.
(d) The Trustee shall prepare, and the Trustee shall sign and file,
all of the federal and state tax and information returns of each REMIC created
hereunder as the direct representative. The expenses of preparing and filing
such returns shall be borne by the Trustee. Notwithstanding the foregoing, the
Trustee shall have no obligation to prepare, file or otherwise deal with
partnership tax information or returns. In the event that partnership tax
information or returns are required by the Internal Revenue Service, the
Seller, at its own cost and expense, will prepare and file all necessary
returns.
(e) The Holder of the Class A-R Certificate at any time holding the
largest Percentage Interest thereof shall be the "tax matters person" as
defined in the REMIC Provisions (the "Tax Matters Person") with respect to
each REMIC created hereunder and shall act as Tax Matters Person for each such
REMIC. The Trustee, as agent for the Tax Matters Person, shall perform on
behalf of each REMIC created hereunder all reporting and other tax compliance
duties that are the responsibility of each such REMIC under the Code, the
REMIC Provisions or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Among its other duties, if
required by the Code, the REMIC Provisions or other such guidance, the
Trustee, as agent for the Tax Matters Person, shall provide (i) to the
Treasury or other governmental authority such information as is necessary for
the application of any tax relating to the Transfer of the Class A-R
Certificate to any disqualified person or organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(f) The Trustee (to the extent that the affairs of the REMICs are
within its control and the scope of its specific responsibilities under the
Agreement), each Servicer and the Holders of Certificates shall take any
action or cause any REMIC created hereunder to take any action necessary to
create or maintain the status of each REMIC created hereunder as a REMIC under
the REMIC Provisions and shall assist each other as necessary to create or
maintain such status. Neither the Trustee, any Servicer nor the Holder of the
Class A-R Certificate shall take any action, cause any REMIC created hereunder
to take any action or fail to take (or fail to cause to be taken) any action
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of any REMIC created hereunder as a REMIC or
(ii) result in the imposition of a tax upon any REMIC created hereunder
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2) and the tax on prohibited contributions set forth on
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee and each Servicer have received an Opinion of Counsel (at
the expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition
of such a tax. In addition, prior to taking any action with respect to any
REMIC created hereunder or the assets therein, or causing any such REMIC to
take any action which is not expressly permitted under the terms of this
Agreement, any Holder of the Class A-R Certificate will consult with the
Trustee and each Servicer, or their respective designees, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur
with respect to any such REMIC, and no such Person shall take any such action
or cause any REMIC created hereunder to take any such action as to which the
Trustee or any Servicer has advised it in writing that an Adverse REMIC Event
could occur. Should the Trustee choose to consult tax counsel as permitted
under Section 8.02(a)(ii) in advising any Holder of the Class A-R Certificate
that a proposed action may result in an Adverse REMIC Event, fees and expenses
related to such consultation with tax counsel shall be paid from each
Collection Account, pro rata.
(g) Each Holder of the Class A-R Certificate shall pay when due any
and all taxes imposed on each REMIC created hereunder by federal or state
governmental authorities. To the extent that such Trust taxes are not paid by
the Class A-R Certificateholder, the Trustee shall pay any remaining REMIC
taxes out of current or future amounts otherwise distributable to the Holder
of the Class A-R Certificate or, if no such amounts are available, out of
other amounts held in the Distribution Account, and shall reduce amounts
otherwise payable to holders of regular interests in each such REMIC, as the
case may be.
(h) The Trustee, as agent for the Tax Matters Person, shall, for
federal income tax purposes, maintain books and records with respect to each
REMIC created hereunder on a calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC
created hereunder, except as expressly provided in this Agreement with respect
to eligible substitute mortgage loans.
(j) Neither the Trustee nor any Servicer shall enter into any
arrangement by which any REMIC created hereunder will receive a fee or other
compensation for services.
SECTION 9.02. Prohibited Transactions and Activities.
Neither the Depositor, any Servicer nor the Trustee shall sell,
dispose of, or substitute for any of the Mortgage Loans, except in a
disposition pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of any REMIC created
hereunder pursuant to Article X of this Agreement, (iv) a substitution
pursuant to Article II or Section 3.16 of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC created hereunder, nor sell or dispose of any investments
in the Distribution Account for gain, nor accept any contributions to any
REMIC created hereunder after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition,
substitution, or acceptance will not (a) affect adversely the status of any
REMIC created hereunder as a REMIC or of the interests therein other than the
Class A-R Certificate as the "residual interest" therein, (b) affect the
distribution of interest or principal on the Certificates, (c) result in the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement) or (d) cause any REMIC created
hereunder to be subject to a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
SECTION 9.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status.
In the event that any REMIC created hereunder fails to qualify as a
REMIC, lose its status as a REMIC, or incurs federal, state or local taxes as
a result of a prohibited transaction or prohibited contribution under the
REMIC Provisions due to the negligent performance by a Servicer of its duties
and obligations set forth herein, such Servicer shall indemnify the Holder of
the Class A-R Certificate against any and all losses, claims, damages,
liabilities or expenses ("Losses") resulting from such negligence; provided,
however, that such Servicer shall not be liable for any such Losses
attributable to the action or inaction of the Trustee, the Depositor, any
other Servicer or the Holder of Class A-R Certificate, as applicable, nor for
any such Losses resulting from misinformation provided by the Holder of the
Class A-R Certificate on which such Servicer has relied. The foregoing shall
not be deemed to limit or restrict the rights and remedies of the Holder of
the Class A-R Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall any Servicer have
any liability (1) for any action or omission that is taken in accordance with
and in compliance with the express terms of, or which is expressly permitted
by the terms of, this Agreement, (2) for any Losses other than arising out of
a negligent performance by such Servicer of its duties and obligations set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest on the
Certificates).
SECTION 9.04. REO Property.
(a) Notwithstanding any other provision of this Agreement, each
Servicer, acting on behalf of the Trustee hereunder, shall not, and shall not
permit any Subservicer to, rent, lease, or otherwise earn income on behalf of
any REMIC created hereunder with respect to any REO Property that might cause
such REO Property to fail to qualify as "foreclosure" property within the
meaning of section 860G(a)(8) of the Code or result in the receipt by such
REMIC of any "income from non-permitted assets" within the meaning of section
860F(a)(2) of the Code or any "net income from foreclosure property" that is
subject to tax under the REMIC Provisions unless each Servicer has obtained an
Opinion of Counsel (a copy of which shall be delivered to the Trustee) to the
effect that, under the REMIC Provisions, such action would not adversely
affect the status of any REMIC created hereunder as a REMIC and any income
generated for such REMIC by the REO Property would not result in the
imposition of a tax upon such REMIC.
(b) Each Servicer shall make reasonable efforts to sell any related
REO Property for its fair market value. In any event, however, a Servicer
shall dispose of any REO Property within three years of its acquisition by the
Trust Fund unless such Servicer on behalf of the Trust Fund has received a
grant of extension (a copy of which shall be provided to the Trustee) from the
Internal Revenue Service to the effect that, under the REMIC Provisions and
any relevant proposed legislation and under applicable state law, the REMIC
may hold REO Property for a longer period without adversely affecting such
REMIC status of any REMIC created hereunder or causing the imposition of a
federal or state tax upon such REMIC. If a Servicer has received such an
extension, then such Servicer shall continue to attempt to sell the REO
Property for its fair market value for such period longer than three years as
such extension permits (the "Extended Period"). If a Servicer has not received
such an extension and such Servicer is unable to sell the REO Property within
33 months after its acquisition by the Trust Fund or if such Servicer has
received such an extension, and such Servicer is unable to sell the REO
Property within the period ending three months before the close of the
Extended Period, such Servicer shall before the end of the three year period
or the Extended Period, as applicable, (i) purchase such REO Property at a
price equal to the REO Property's fair market value or (ii) auction the REO
Property to the highest bidder (which may be such Servicer) in an auction
reasonably designed to produce a fair price prior to the expiration of the
three-year period or the Extended Period, as the case may be.
ARTICLE X
TERMINATION
SECTION 10.01. Termination.
(a) The respective obligations and responsibilities of the Seller,
the Servicers, the Depositor and the Trustee created hereby (other than the
obligation of the Trustee to make certain payments to Certificateholders after
the final Distribution Date and the obligation of the Servicers to send
certain notices as hereinafter set forth) shall terminate upon notice to the
Trustee upon the earliest of (i) the Distribution Date on which the Class
Certificate Principal Balance of each Class of Certificates has been reduced
to zero, (ii) the final payment or other liquidation of the last Mortgage
Loan, (iii) the optional purchase by the Holder of the Class A-R Certificate
of the Mortgage Loans as described below and (iv) the Latest Possible Maturity
Date. Notwithstanding the foregoing, in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James's, living on the date hereof.
The Holder of the Class A-R Certificate may, at its option, terminate
this Agreement on any date on which the aggregate of the Principal Balances of
the Mortgage Loans on such date is 10% or less of the aggregate of the Cut-off
Date Principal Balance of the Mortgage Loans, by purchasing, on the next
succeeding Distribution Date, all of the outstanding Mortgage Loans and REO
Properties at a price equal to the sum of (i) the outstanding Stated Principal
Balances of the Mortgage Loans (other than in respect of REO Properties), (ii)
the lesser of (x) the appraised value of any REO Property as determined by the
higher of two appraisals completed by two independent appraisers selected by
the Depositor at the expense of the Depositor and (y) the Stated Principal
Balance of each Mortgage Loan related to any REO Property and (iii) in all
cases, accrued and unpaid interest thereon at the weighted average of the
Adjusted Mortgage Rates through the end of the Due Period preceding the final
Distribution Date, plus unreimbursed Servicing Advances and any unpaid
Servicing Fees allocable to such Mortgage Loans and REO Properties, plus all
amounts, if any, then due and owing to the Trustee under this Agreement (the
"Termination Price").
In connection with any such purchase pursuant to the preceding
paragraph, each Servicer shall deposit in the Distribution Account all amounts
then on deposit in each related Collection Account, which deposit shall be
deemed to have occurred immediately preceding such purchase.
(b) Notice of any termination pursuant to the second paragraph of
Section 10.01(a), specifying the Distribution Date (which shall be a date that
would otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon the
Trustee receiving notice of such date from the Holder of the Class A-R
Certificate, by letter to the Certificateholders mailed not earlier than the
10th day and not later than the 19th day of the month immediately preceding
the month of such final distribution specifying (1) the Distribution Date upon
which final distribution of the Certificates will be made upon presentation
and surrender of such Certificates at the office or agency of the Trustee
therein designated, (2) the amount of any such final distribution and (3) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of
the Certificates at the office or agency of the Trustee therein specified.
(c) Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed to
such Holders in accordance with the provisions of Section 4.01 hereof for such
Distribution Date.
(d) In the event that all Certificateholders shall not surrender
their Certificates for final payment and cancellation on or before such final
Distribution Date, the Trustee shall promptly following such date cause all
funds in the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate account for the
benefit of such Certificateholders, and the Trustee shall give a second
written notice to the remaining Certificateholders, to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within nine months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Class A-R
Certificateholder shall be entitled to all unclaimed funds and other assets
which remain subject hereto, and the Trustee upon transfer of such funds shall
be discharged of any responsibility for such funds, and the Certificateholders
shall look to the Class A-R Certificateholder for payment.
SECTION 10.02. Additional Termination Requirements.
(a) In the event that the Class A-R Certificateholder exercises its
purchase option as provided in Section 10.01, the Trust shall be terminated in
accordance with the following additional requirements, unless the Trustee
shall have been furnished with an Opinion of Counsel to the effect that the
failure of the Trust to comply with the requirements of this Section will not
(i) result in the imposition of taxes on "prohibited transactions" of the
Trust as defined in Section 860F of the Code or (ii) cause the REMIC
constituting the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date, the
Trustee shall adopt and sign a plan of complete liquidation of the
REMIC meeting the requirements of a "Qualified Liquidation" under
Section 860F of the Code and any regulations thereunder;
(ii) at or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date,
the Trustee shall sell all of the assets of the Trust to the Class
A-R Certificateholder for cash pursuant to the terms of the plan of
complete liquidation; and
(iii) 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 Holders of each Class of the
Certificates, the related Class Certificate Principal Balance of the
Class, plus one month's interest thereon at the applicable
Pass-Through Rate, and the Trust shall terminate at such time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to appoint the Trustee as their attorney in fact to: (i) adopt such a
plan of complete liquidation (and the Certificateholders hereby appoint the
Trustee as their attorney in fact to sign such plan) as appropriate and (ii)
to take such other action in connection therewith as may be reasonably
required to carry out such plan of complete liquidation all in accordance with
the terms hereof.
ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment.
This Agreement may be amended from time to time by Seller, the
Depositor, each Servicer and the Trustee; and without the consent of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement
any provisions herein which may be defective or inconsistent with any other
provisions herein or (iii) to make any other provisions with respect to
matters or questions arising under this Agreement, which shall not be
inconsistent with the provisions of this Agreement; provided, however, that
any such action listed in clause (i) through (iii) above shall be deemed not
to adversely affect in any material respect the interests of any
Certificateholder, if evidenced by (i) written notice to the Depositor, the
Seller, each Servicer and the Trustee from the Rating Agencies that such
action will not result in the reduction or withdrawal of the rating of any
outstanding Class of Certificates with respect to which it is a Rating Agency
or (ii) an Opinion of Counsel delivered to each Servicer and the Trustee.
In addition, this Agreement may be amended from time to time by
Seller, the Depositor, each Servicer and the Trustee with the consent of the
Majority Certificateholders for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates;
provided, however, that no such amendment or waiver shall (x) reduce in any
manner the amount of, or delay the timing of, payments on the Certificates
that are required to be made on any Certificate without the consent of the
Holder of such Certificate, (y) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than
as described in clause (x) above, without the consent of the Holders of
Certificates of such Class evidencing at least a 66% Percentage Interest in
such Class, or (z) reduce the percentage of Voting Rights required by clause
(y) above without the consent of the Holders of all Certificates of such Class
then outstanding. Upon approval of an amendment, a copy of such amendment
shall be sent to the Rating Agencies.
Notwithstanding any provision of this Agreement to the contrary, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel, delivered by and at the expense of
the Person seeking such Amendment (unless such Person is the Trustee, in which
case the Trustee shall be entitled to be reimbursed for such expenses by the
Trust pursuant to Section 8.05 hereof), to the effect that such amendment will
not result in the imposition of a tax on any REMIC created hereunder pursuant
to the REMIC Provisions or cause any REMIC created hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding and that
the amendment is being made in accordance with the terms hereof.
Promptly after the execution of any such amendment the Trustee shall
furnish, at the expense of the Person that requested the amendment if such
Person is the Seller or a Servicer (but in no event at the expense of the
Trustee), otherwise at the expense of the Trust, a copy of such amendment and
the Opinion of Counsel referred to in the immediately preceding paragraph to
each Servicer and the Rating Agencies.
It shall not be necessary for the consent of Certificateholders under
this Section 12.01 to approve the particular form of any proposed amendment;
instead it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this 12.01 Section that affects its rights, duties and
immunities under this Agreement or otherwise.
SECTION 12.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the
Servicers at the expense of the Trust, but only upon direction of
Certificateholders accompanied by an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall together constitute
but one and the same instrument.
SECTION 12.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not (i)
operate to terminate this Agreement or the Trust, (ii) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
the Trust or (iii) otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
Except as expressly provided for herein, no Certificateholder shall
have any right to vote or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third person by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 15 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more
Holders of Certificates shall have any right in any manner whatever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights
of the Holders of any other of such Certificates, or to obtain or seek to
obtain priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 12.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 12.04. Governing Law; Jurisdiction.
This Agreement shall be construed in accordance with the laws of the
State of New York, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws. With respect to
any claim arising out of this Agreement, each party irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in The City of New
York, and each party irrevocably waives any objection which it may have at any
time to the laying of venue of any suit, action or proceeding arising out of
or relating hereto brought in any such courts, irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in any inconvenient forum and further irrevocably waives the right to
object, with respect to such claim, suit, action or proceeding brought in any
such court, that such court does not have jurisdiction over such party,
provided that service of process has been made by any lawful means.
SECTION 12.05. Notices.
All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed
by first class mail, postage prepaid, or by express delivery service, to (a)
in the case of the Seller, to Greenwich Capital Financial Products, Inc., 600
Steamboat Road, Greenwich, Connecticut 06830, Attention: General Counsel
(telecopy number (203) 618-2132), or such other address or telecopy number as
may hereafter be furnished to the Depositor, the Trustee and the Servicers in
writing by the Seller, (b) in the case of Countrywide, to Countrywide Credit
Corp., 4500 Park Grenada, Calabasas, CA 91302, Attention: Kevin Bartlett, or
such other address as may hereafter be furnished to the Seller, the Depositor,
the Trustee and the other Servicers in writing by Countrywide, (c) in the case
of ABN AMRO, to ABN AMRO Mortgage Group, Inc., 4242 N. Harlem Avenue,
Norridge, IL 60706, Attention: Mary Sperlik (telecopy number (708) 456-2545)
or such other address or telecopy number as may hereafter be furnished to the
Seller, the Depositor, the Trustee and the other Servicers in writing by ABN
AMRO, (d) in the case of the Trustee, to Bankers Trust Company of California,
N.A., 1761 East St. Andrew Place, Santa Ana, CA 92705-4934, Attention:
HarborView 2000-1 (telecopy number (714) 247-6285), with a copy to the
Corporate Trust Office or such other address or telecopy number as may
hereafter be furnished to the Depositor, the Seller and the Servicers in
writing by the Trustee, (e) in the case of the Depositor, to Greenwich Capital
Acceptance, Inc., 600 Steamboat Road, Greenwich, Connecticut 06830, Attention:
Legal (telecopy number (203) 618-2132), or such other address or telecopy
number as may be furnished to the Seller, the Servicers and the Trustee in
writing by the Depositor. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Notice of any
Servicer Event of Termination shall be given by telecopy and by certified
mail. Any notice so mailed within the time prescribed in this Agreement shall
be conclusively presumed to have duly been given when mailed, whether or not
the Certificateholder receives such notice. A copy of any notice required to
be telecopied hereunder shall also be mailed to the appropriate party in the
manner set forth above.
SECTION 12.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 12.07. Article and Section References.
All article and section references used in this Agreement, unless
otherwise provided, are to articles and sections in this Agreement.
SECTION 12.08. Notice to the Rating Agencies.
(a) Each of the Trustee and each Servicer shall be obligated to use
its best reasonable efforts promptly to provide notice to the Rating Agencies
with respect to each of the following of which a Responsible Officer of the
Trustee or the Servicer, as the case may be, has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Servicer Event of Termination that
has not been cured or waived;
(iii) the resignation or termination of a Servicer or the
Trustee;
(iv) the final payment to Holders of the Certificates of any
Class;
(v) any change in the location of any Account; and
(vi) if the Trustee is acting as a successor Servicer pursuant
to Section 7.02 hereof, any event that would result in the inability
of the Trustee to make Advances.
(b) Each Servicer shall promptly furnish to each Rating Agency copies
of the following:
(i) each annual statement as to compliance described in Section
3.20 hereof;
(ii) each annual independent public accountants' servicing
report described in Section 3.21 hereof; and
(iii) each notice delivered pursuant to Section 7.01(a) hereof
which relates to the fact that such Servicer has not made an
Advance.
Any such notice pursuant to this Section 12.08 shall be in writing
and shall be deemed to have been duly given if personally delivered or mailed
by first class mail, postage prepaid, or by express delivery service to
Standard & Poor's Ratings Services, 55 Water Street, New York, New York 10041;
and to Fitch IBCA, Inc., One State Street Plaza, New York, New York 10004.
SECTION 12.09. Further Assurances.
Notwithstanding any other provision of this Agreement, neither the
Regular Certificateholders nor the Trustee shall have any obligation to
consent to any amendment or modification of this Agreement unless they have
been provided reasonable security or indemnity against their out-of-pocket
expenses (including reasonable attorneys' fees) to be incurred in connection
therewith.
SECTION 12.10. Benefits of Agreement.
Nothing in this Agreement or in the Certificates, expressed or
implied, shall give to any Person, other than the Certificateholders and the
parties hereto and their successors hereunder, any benefit or any legal or
equitable right, remedy or claim under this Agreement.
SECTION 12.11. Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by the
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or
by agent duly appointed in writing, and such action shall become effective
when such instrument or instruments are delivered to the Trustee, the Seller
and each Servicer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "act"
of the Certificateholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and conclusive in favor
of the Trustee and the Trust, if made in the manner provided in this Section
12.11.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Whenever such execution is by a signer acting in a capacity other than his or
her individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by any Certificateholder shall bind every future Holder
of such Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee or
the Trust in reliance thereon, whether or not notation of such action is made
upon such Certificate.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Seller, each Servicer and the
Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., as Seller
By:
----------------------------------
Name:
Title:
GREENWICH CAPITAL ACCEPTANCE, INC.,
as Depositor
By:
-----------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC,
as Servicer
By:
------------------------------------
Name:
Title:
ABN AMRO MORTGAGE GROUP, INC.,
as Servicer
By:
-----------------------------------
Name:
Title:
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:
---------------------------------------
Name:
Title:
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the __ day of July 2000, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of Greenwich Capital Acceptance, Inc., a Delaware corporation
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________
Notary Public
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the __ day of July 2000, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of Greenwich Capital Financial Products, Inc., a Delaware
corporation that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------
Notary Public
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the __ day of July 2000, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of Countrywide Home Loans, Inc., a New York corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------
Notary Public
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the __ day of July 2000, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of ABN AMRO Mortgage Group, Inc., a Delaware corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------
Notary Public
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the __ day of July 2000, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of Bankers Trust Company of California, N.A., a national
banking association that executed the within instrument, and also known to me
to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------
Notary Public
<PAGE>
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No. : [ ]
Cut-off Date : [ ]
First Distribution Date : [ ]
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[ ]
Original Class Certificate
Principal Balance of this
Class : $[ ]
Percentage Interest : [ ]%
Pass-Through Rate : [ ]%
CUSIP : [ ]
Class : [ ]
Assumed Final Distribution Date : [ ]
<PAGE>
HarborView Mortgage Loan Trust 2000-1,
Mortgage Loan Pass-Through Certificates,
Series 2000-1
Class [ ]
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of first lien adjustable rate and fixed
rate mortgage loans (the "Mortgage Loans") originated by, or
purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of this Class
[ ] Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class A- [ ]
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, any Servicer or the Trustee referred
to below or any of their respective affiliates.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class [ ] Certificate (obtained by
dividing the Denomination of this Class [ ] Certificate by the Original Class
Certificate Principal Balance) in certain monthly distributions with respect
to a Trust consisting primarily of the Mortgage Loans deposited by Greenwich
Capital Acceptance, Inc. (the "Depositor"). The Trust was created pursuant to
a Pooling and Servicing Agreement dated as of July 1, 2000 (the "Agreement")
among the Depositor, Greenwich Capital Financial Products, Inc. ("GCFP"), as
seller (the "Seller"), ABN AMRO Mortgage Group, Inc. ("ABN") and Countrywide
Home Loans, Inc. ("CHL"), each as a servicer (the "Servicers"), and Bankers
Trust Company of California, N.A., as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class [ ] Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class [ ] Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Class [ ]
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Class [ ] Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
<PAGE>
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: July ___, 2000
HARBORVIEW MORTGAGE LOAN TRUST
2000-1
By: BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
not in its individual capacity,
but solely as Trustee
By
---------------------------------
This is one of the Certificates
referenced in the within-mentioned Agreement
By ________________________________
Authorized Signatory of Bankers Trust
Company of California, N.A., as Trustee
<PAGE>
EXHIBIT B
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE ON BEHALF OF PLAN OR USING PLAN ASSETS, OR AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [ ]
Cut-off Date : [ ]
First Distribution Date : [ ]
Initial Certificate Principal
Balance of this Certificate : [ ]
Original Class Certificate : [ ]
Principal Balance of this :
Class : [ ]
Percentage Interest : [ ]%
Pass-Through Rate : [ ]%
CUSIP : [ ]
Class : A-R
Assumed Maturity Date : [ ]
<PAGE>
HarborView Mortgage Loan Trust 2000-1
Mortgage Loan Pass-Through Certificates,
Series 2000-1
Class A-R
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of a pool of first lien adjustable rate
and fixed rate mortgage loans (the "Mortgage Loans") originated by,
or purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, any Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that GREENWICH CAPITAL MARKETS, INC. is the registered
owner of the Percentage Interest evidenced by this Certificate specified above
in the interest represented by all Certificates of the Class to which this
Certificate belongs in a Trust consisting primarily of the Mortgage Loans
deposited by Greenwich Capital Acceptance, Inc. (the "Depositor"). The Trust
was created pursuant to a Pooling and Servicing Agreement dated as of July 1,
2000 (the "Agreement") among the Depositor, certain affiliates of Greenwich
Capital Financial Products, Inc. ("GCFP"), as seller (the "Seller"), ABN AMRO
Mortgage Group, Inc. ("ABN") and Countrywide Home Loans, Inc. ("CHL"), each as
a servicer (the "Servicers"), and Bankers Trust Company of California, N.A.,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer is to
be made in reliance upon an exemption from the Act and such laws, in order to
assure compliance with the Act and such laws, the Certificateholder desiring
to effect such transfer and such Certificateholder's prospective transferee
shall each certify to the Trustee and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be made
pursuant to Rule 144A of the Act, there shall be delivered to the Trustee and
the Depositor an Opinion of Counsel that such transfer may be made pursuant to
an exemption from the Act, which Opinion of Counsel shall not be obtained at
the expense of the Trustee, the Seller or the Depositor; or there shall be
delivered to the Trustee and the Depositor a transferor certificate by the
transferor and an investment letter shall be executed by the transferee. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee and the Depositor against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to the Trustee and in substantially
the form attached to the Agreement, to the effect that such transferee is not
an employee benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, nor a person acting on behalf of any such plan, which representation
letter shall not be an expense of the Trustee, or (ii) if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such 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 PTCE 95-60.
Notwithstanding anything else to the contrary herein, any purported transfer
of a Certificate of this Class to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the opinion of counsel satisfactory to
the Trustee as described above shall be void and of no effect.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Certificate must be a Permitted Transferee, (ii) no Ownership Interest
in this Certificate may be transferred without delivery to the Trustee of (a)
a transfer affidavit of the proposed transferee and (b) a transfer certificate
of the transferor, each of such documents to be in the form described in the
Agreement, (iii) each person holding or acquiring any Ownership Interest in
this Certificate must agree to require a transfer affidavit and to deliver a
transfer certificate to the Trustee as required pursuant to the Agreement,
(iv) each person holding or acquiring an Ownership Interest in this
Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be absolutely null and void and will vest no rights in the purported
transferee. The Trustee will provide the Internal Revenue Service and any
pertinent persons with the information needed to compute the tax imposed under
the applicable tax laws on transfers of residual interests to disqualified
organizations, if any person other than a Permitted Transferee acquires an
Ownership Interest on a Class A-R Certificate in violation of the restrictions
mentioned above.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized officer of the Trustee.
<PAGE>
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: July ___, 2000
HARBORVIEW MORTGAGE LOAN TRUST 2000-1
By: BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., not in its
individual capacity, but solely
as Trustee
By __________________________
This is the Class A-R Certificate
referenced in the within-mentioned Agreement
By ________________________________
Authorized Signatory of
Bankers Trust Company of California, N.A.
<PAGE>
EXHIBIT C
[FORM OF SUBORDINATE CERTIFICATE]
CLASS B-[ ] CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CLASS OF CERTIFICATES CONSISTS OF SUBORDINATED SECURITIES AND THEY WILL
NOT SATISFY THE REQUIREMENTS OF CERTAIN PROHIBITED TRANSACTION EXEMPTIONS. AS
A RESULT, THE PURCHASE OR HOLDING OF ANY OF THIS CLASS OF CERTIFICATES BY A
PLAN INVESTOR MAY CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION OR RESULT IN
THE IMPOSITION OF EXCISE TAXES OR CIVIL PENALTIES UNDER THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR THE CODE.
ACCORDINGLY, NONE OF THIS CLASS OF CERTIFICATES ARE OFFERED FOR SALE, AND ARE
NOT TRANSFERABLE, TO PLAN INVESTORS UNLESS AN EXEMPTION FROM THE PROHIBITED
TRANSACTION RULES OF ERISA AND THE CODE APPLIES TO THE ACQUISITION, HOLDING,
AND RESALE OF SUCH CERTIFICATE. EACH PURCHASER OF THIS CLASS OF CERTIFICATE,
BY VIRTUE OF ITS PURCHASE OF SUCH CERTIFICATE, WILL BE DEEMED TO HAVE
REPRESENTED EITHER THAT IT IS NOT A PLAN INVESTOR OR THAT CERTAIN EXEMPTIONS
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE APPLY TO THE
PLAN INVESTOR'S ACQUISITION, HOLDING, AND RESALE OF SUCH CERTIFICATES.
THIS CERTIFICATE IS SUBORDINATE IN RIGHT AND PAYMENT AS DESCRIBED IN THE
AGREEMENT REFERRED TO HEREIN.
Certificate No. : [ ]
Cut-off Date : [ ]
First Distribution Date : [ ]
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[ ]
Original Class Certificate
Principal Balance of this
Class : $[ ]
Percentage Interest : [ ]%
Pass-Through Rate : [ ]%
CUSIP : [ ]
Class : [ ]
Assumed Final Distribution Date : [ ]
<PAGE>
HarborView Mortgage Loan Trust 2000-1,
Mortgage Loan Pass-Through Certificates,
Series 2000-1
Class B-[ ]
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of first lien adjustable rate and fixed
rate mortgage loans (the "Mortgage Loans") originated by, or
purchased from others by
GREENWICH CAPITAL ACCEPTANCE INC., as Depositor.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of this Class
B-[ ] Certificate at any time may be less than the Initial Certificate
Principal Balance set forth on the face hereof, as described herein. This
Class B-[ ] Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, any Servicer or the
Trustee referred to below or any of their respective affiliates.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class B-[ ] Certificate (obtained by
dividing the Denomination of this Class B-[ ] Certificate by the Original
Class Certificate Principal Balance) in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by
Greenwich Capital Acceptance, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of July 1, 2000 (the
"Agreement") among the Depositor, Greenwich Capital Financial Products, Inc.
("GCFP"), as seller (the "Seller"), ABN AMRO Mortgage Group, Inc. ("ABN") and
Countrywide Home Loans, Inc. ("CHL"), each as a servicer (the "Servicers"),
and Bankers Trust Company of California, N.A., as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Class B-[ ] Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class B-[ ] Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Class B-[ ] Certificates are subordinated securities and they
will not satisfy the requirements of certain prohibited transaction
exemptions. As a result, the purchase or holding of any of the Class B-[ ]
Certificates by a plan investor may constitute a non-exempt prohibited
transaction or result in the imposition of excise taxes or civil penalties
under the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or the Code. Accordingly, none of the Class B-[ ] Certificates are
offered for sale, and are not transferable, to plan investors unless an
exemption from the prohibited transaction rules of ERISA and the Code applies
to the acquisition, holding, and resale of such certificate. Each purchaser of
a Class B-[ ] Certificate, by virtue of its purchase of such Certificate, will
be deemed to have represented either that it is not a plan investor or that
certain exemptions from the prohibited transaction provisions of ERISA and the
Code apply to the plan investor's acquisition, holding, and resale of such
Certificates.
Reference is hereby made to the further provisions of this Class B-[
] Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Class B-[ ] Certificate shall not be entitled to any benefit
under the Agreement or be valid for any purpose unless manually countersigned
by an authorized signatory of the Trustee.
<PAGE>
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: July ___, 2000
HARBORVIEW MORTGAGE LOAN TRUST
2000-1
By: BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
not in its individual capacity, but
solely as Trustee
By
------------------------------------
This is one of the Certificates
referenced in the within-mentioned Agreement
By ________________________________
Authorized Signatory of Bankers Trust
Company of California, N.A., as Trustee
<PAGE>
EXHIBIT D
[FORM OF CLASS X CERTIFICATE]
THIS CLASS X CERTIFICATE IS AN INTEREST ONLY CERTIFICATE, HAS NO PRINCIPAL
BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE
REPRESENTATION LETTER OR THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
<PAGE>
Certificate No. : [ ]
Cut-off Date : [ ]
First Distribution Date : [ ]
Percentage Interest : [ ]%
Pass-Through Rate : [ ]%
Class : X
Assumed Maturity Date : [ ]
HarborView Mortgage Loan Trust 2000-1,
Mortgage Loan Pass-Through Certificates,
Series 2000-1
Class X
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of first lien adjustable rate and fixed
and variable rate mortgage loans (the "Mortgage Loans") originated
by, or purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Seller, any Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class X Certificate in certain monthly
distributions with respect to a Trust consisting primarily of the Mortgage
Loans deposited by Financial Asset Securities Corp. (the "Depositor"). The
Trust was created pursuant to a Pooling and Servicing Agreement dated as of
July 1, 2000 (the "Agreement") among the Depositor, Greenwich Capital
Financial Products, Inc. ("GCFP"), as seller (the "Seller"), ABN AMRO Mortgage
Group, Inc. ("ABN") and Countrywide Home Loans, Inc. ("CHL"), each as a
servicer (the "Servicers"), and Bankers Trust Company of California, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Class X
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class X
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate does not have a principal balance or pass-through
rate and will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining
assets of the Trust will be made only upon presentment and surrender of this
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, (i) unless such transfer is made in reliance upon Rule 144A (as
evidenced by the investment letter delivered to the Trustee, in substantially
the form attached to the Pooling and Servicing Agreement, the Trustee and the
Depositor shall require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to
the Trustee and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from
the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor or (ii) the
Trustee shall require the transferor to execute a transferor certificate (in
substantially the form attached to the Pooling and Servicing Agreement) and
the transferee to execute an investment letter (in substantially the form
attached to the Pooling and Servicing Agreement) acceptable to and in form and
substance reasonably satisfactory to the Depositor and the Trustee certifying
to the Depositor and the Trustee the facts surrounding such transfer, which
investment letter shall not be an expense of the Trustee or the Depositor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter 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 Section 4975 of the
Code, nor a person acting on behalf of any such plan, which representation
letter shall not be an expense of the Trustee, or (ii) if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such 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 PTCE 95-60.
Notwithstanding anything else to the contrary herein, any purported transfer
of a Certificate of this Class to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the opinion of counsel satisfactory to
the Trustee as described above shall be void and of no effect.
Reference is hereby made to the further provisions of this Class X
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Class X Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
<PAGE>
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: July ___, 2000
HARBORVIEW MORTGAGE LOAN TRUST 2000-1
By: BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., not in its
individual capacity, but
solely as Trustee
By ___________________________________
This is the Class X Certificate
referenced in the within-mentioned Agreement
By ________________________________
Authorized Signatory of
Bankers Trust Company of California, N.A., as Trustee
<PAGE>
EXHIBIT E
[Form of Reverse of the Certificates]
HARBORVIEW MORTGAGE LOAN TRUST 2000-1
Mortgage Loan Pass-Through Certificates, Series 2000-1
Reverse Certificate
HARBORVIEW MORTGAGE LOAN TRUST 2000-1
Mortgage Loan Pass-Through Certificates,
Series 2000-1
This Certificate is one of a duly authorized issue of Certificates
designated as HarborView Mortgage Loan Trust 2000-1, Mortgage Loan
Pass-Through Certificates, Series 2000-1 (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the first Business Day after the Servicer Remittance Date (the
"Distribution Date"), commencing on the first Distribution Date specified on
the face hereof, to the Person in whose name this Certificate is registered at
the close of business on the applicable Record Date in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of Certificates of the Class to
which this Certificate belongs on such Distribution Date pursuant to the
Agreement.
Distributions on this Certificate shall be made by check or money
order mailed to the address of the person entitled thereto as it appears on
the Certificate Register or, upon the request of a Certificateholder, by wire
transfer as set forth in the Agreement. The final distribution on each
Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the office or agency of the Trustee specified
in the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time, by the Depositor, the Seller, the Servicers and the Trustee and of
Holders of the requisite percentage of the Percentage Interests of each Class
of Certificates affected by such amendment, as specified in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or
such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust will be issued to the
designated transferee or transferees.
Subject to the terms of the Agreement, each Class of Book-Entry
Certificates will be registered as being held by the Depository or its nominee
and beneficial interests will be held by Certificate Owners through the
book-entry facilities of the Depository or its nominee in minimum
denominations of $25,000 and integral multiples of $1 in excess thereof.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee nor any such agent shall be affected by any notice to the
contrary.
In the event that the Senior Call Option relating to this Certificate
has been exercised, on the related Put and Call Date the transfer of the
Ownership Interest in this Certificate to CDC Financial Products Inc., as
Certificate Owner, shall be effected by the applicable Depository Participant
(or the applicable indirect participant in the Depository, as the case may be)
upon notice by the Trustee, pursuant to Section 8.17(f) of the Agreement. Upon
such transfer, the Certificate Owner hereof prior to such exercise of such
Senior Call Option shall cease to have any Ownership Interest herein on or
after the related Put and Call Date.
On any Distribution Date following the date at which the remaining
aggregate Principal Balance of the Mortgage Loans in the Trust is less than or
equal to 10% of the aggregate Principal Balance of the Mortgage Loans as of
the Cut-off Date, the Class A-R Certificateholder may purchase, in whole, from
the Trust the Mortgage Loans, at a purchase price determined as provided in
the Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
notice to the Trustee upon the earliest of (i) the Distribution Date on which
the aggregate Certificate Principal Balance of the Certificates has been
reduced to zero, (ii) the final payment or other liquidation of the last
Mortgage Loan in the Trust and (iii) the Distribution Date in August 2030. In
no event, however, will the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement.
Capitalized terms used herein that are defined in the Agreement shall
have the meanings ascribed to them in the Agreement, and nothing herein shall
be deemed inconsistent with that meaning.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto______________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: ______________________________________.
Dated: _____________
_____________________________________
Signature by or on behalf of assignor
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_______________________________________________
for the account of___________________________________________________________,
account number ________________________, or, if mailed by check, to _________
______________________________________________________________________________
Applicable statements should be mailed to_____________________________________
-----------------------------------------------------------------------------.
This information is provided by____________________________________,
_____________________________________________, the assignee named above, or
_____________________________________________________, as its agent.
<PAGE>
EXHIBIT F
REQUEST FOR RELEASE OF DOCUMENTS
To: Bankers Trust Company Of California, N.A.
1761 E. St. Andrew Place
Santa Ana, CA 92705
Re: Pooling and Servicing Agreement dated July 1, 2000,
among Greenwich Capital Acceptance, Inc., as depositor,
Greenwich Capital Financial Products, as a seller, Countrywide Home Loans, Inc.
and ABN AMRO Mortgage Group, Inc., each as servicer, and
Bankers Trust Company Of California, N.A., as trustee,
for HarborView Mortgage Loan Trust 2000-1
-----------------------------------------
In connection with the administration of the Mortgage Loans held by
you, as Trustee, pursuant to the above-captioned Pooling and Servicing
Agreement, we request the release, and hereby acknowledge receipt, of the
Mortgage File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address and ZIP Code:
Reason for Requesting Documents (check one):
______ 1. Mortgage Paid in Full
______ 2. Foreclosure
______ 3. Substitution
______ 4. Other Liquidation
______ 5. Nonliquidation Reason:___________________________
By:
---------------------------
(authorized signer)
Issuer:___________________________
Address:__________________________
--------------------------
Date:
--------------------------
Trustee
Bankers Trust Company Of California, N.A.
Please acknowledge the execution of the above request by your signature and
date below:
---------------------------- -----------------------
Signature Date
Documents returned to Trustee:
---------------------------- -----------------------
Trustee Date
<PAGE>
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
ABN AMRO Mortgage Group, Inc.
4242 N. Harlem Avenue
Norridge, Illinois 60706
Countrywide Home Loans, Inc.
4500 Park Grenada
Calabasas, CA 91302
Greenwich Financial Products, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Re: Pooling and Servicing Agreement among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, as Seller, Countrywide Home Loans, Inc. and ABN AMRO
Mortgage Group, Inc., each as a Servicer, and Bankers Trust
Company Of California, N.A., as Trustee, HarborView Mortgage
Loan Pass-Through Certificates, Series 2000-1
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached schedule) it has received:
(i) all documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Pooling and Servicing Agreement are in its possession;
(ii) such documents have been reviewed by the Trustee and have not
been mutilated, damaged or torn and relate to such Mortgage Loan; and
(iii) based on the Trustee's examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedule that
corresponds to items (i) and (ii) of the Mortgage Loan Schedule accurately
reflects information set forth in the Mortgage File
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as Trustee
By:
-----------------------------
Name:
------------------------
Title:
------------------------
<PAGE>
EXHIBIT G-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
FINAL CERTIFICATION OF TRUSTEE
July 27, 2000
Greenwich Capital Acceptance, Inc. ABN AMRO Mortgage Group, Inc.
600 Steamboat Road 4242 N. Harlem Avenue
Greenwich, CT 06830 Norridge, IL 60706
Countrywide Home Loans, Inc. Greenwich Capital Financial
4500 Park Grenada Products, Inc. 600 Steamboat Road
Calabasas, CA 91302 Greenwich, CT 06830
Re: Pooling and Servicing Agreement, dated July 1, 2000 among
Greenwich Capital Acceptance, Inc., as Depositor, Greenwich
Capital Financial Products, Inc., as Seller, Countrywide Home
Loans, Inc. and ABN AMRO Mortgage Group, Inc., each as a
Servicer, and Bankers Trust Company of California, N.A., as
Trustee, HarborView Mortgage Loan Trust 2000-1, Mortgage Loan
Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(viii) The original Mortgage Note, endorsed either on its face or
by allonge attached thereto in the following form: "Pay to
the order of Bankers Trust Company of California, N.A., as
Trustee under the Pooling and Servicing Agreement, dated as
of July 1, 2000, HarborView Mortgage Loan Trust 2000-1,
Mortgage Loan Pass-Through Certificates, Series 2000-1,
without recourse", or with respect to any lost Mortgage
Note, an original Lost Note Affidavit stating that the
original mortgage note was lost, misplaced or destroyed,
together with a copy of the related mortgage note;
(ix) except with respect to a Cooperative Loan and except as
provided below, the original Mortgage with evidence of
recording thereon, and the original recorded power of
attorney, if the Mortgage was executed pursuant to a power
of attorney, with evidence of recording thereon or, if such
Mortgage or power of attorney has been submitted for
recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise
available, a copy of such Mortgage or power of attorney, as
the case may be, certified to be a true and complete copy of
the original submitted for recording;
(x) except with respect to a Cooperative Loan, an original
Assignment of Mortgage, in form and substance acceptable for
recording. The Mortgage shall be assigned to "Bankers Trust
Company of California, N.A., as Trustee;
(xi) an original copy of any intervening Assignment of Mortgage
showing a complete chain of assignments;
(xii) except with respect to a Cooperative Loan, the original or a
certified copy of lender's title insurance policy;
(xiii) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(xiv) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A)(A)except for Partially Unrecognized Cooperative Loans,
the Coop Shares, together with a stock power in blank;
(B)(B)the executed Security Agreement;
(C) except for Partially Unrecognized Cooperative Loans,
the executed Proprietary Lease;
(D) except for Partially Unrecognized Cooperative Loans,
the executed Recognition Agreement;
(E) except for Partially Unrecognized Cooperative
Loans, the executed UCC-1 financing statement with
evidence of recording thereon which have been filed
in all places required to perfect the Seller's
interest in the Coop Shares and the Proprietary
Lease; and
(F) except for Partially Unrecognized Cooperative
Loans, executed UCC-3 financing statements or other
appropriate UCC financing statements required by
state law, evidencing a complete and unbroken line
from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for
recordation).
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(xiii), (xv), (xvi) and (xix) of the definition of the "Mortgage Loan
Schedule" in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as Trustee
By:
---------------------------------
Name:
----------------------------------
Title:
-----------------------------------
<PAGE>
EXHIBIT G-3
FORM OF RECEIPT OF MORTGAGE NOTE
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Re: HarborView Mortgage Loan Trust 2000-1,
Mortgage Loan Pass-Through Certificates,
Series 2000-1
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing Agreement,
dated as of July 1, 2000, among Greenwich Capital Acceptance, Inc., as
Depositor, Greenwich Capital Financial Products, as Seller, Countrywide Home
Loans, Inc. and ABN AMRO Mortgage Group, Inc., each as a Servicer, and Bankers
Trust Company Of California, N.A., as Trustee, we hereby acknowledge the
receipt of the original Mortgage Note with respect to each Mortgage Loan
listed on Exhibit 1, with any exceptions thereto listed on Exhibit 2.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT H
FORM OF LOST NOTE AFFIDAVIT
Personally appeared before me the undersigned authority to administer
oaths, ______________________ who first being duly sworn deposes and says:
Deponent is ______________________ of Greenwich Capital Financial Products
(the "Seller") and who has personal knowledge of the facts set out in this
affidavit.
On ___________________, _________________________ did execute and
deliver a promissory note in the principal amount of $__________.
That said note has been misplaced or lost through causes unknown and
is currently lost and unavailable after diligent search has been made. The
Seller's records show that an amount of principal and interest on said note is
still presently outstanding, due, and unpaid, and such Seller is still owner
and holder in due course of said lost note.
Seller executes this Affidavit for the purpose of inducing Bankers
Trust Company Of California, N.A., as trustee on behalf of HarborView Mortgage
Loan Trust 2000-1, Mortgage Loan Pass-Through Certificates, Series 2000-1 , to
accept the transfer of the above described loan from Seller.
Seller agrees to indemnify Bankers Trust Company Of California, N.A.
and Greenwich Capital Acceptance, Inc. and hold them harmless for any losses
incurred by such parties resulting from the fact that the above described Note
has been lost or misplaced.
By: __________________________________
----------------------------------
STATE OF )
) ss:
COUNTY OF )
On this ____ day of _______ 2000, before me, a Notary Public, in and
for said County and State, appeared ________________________, who acknowledged
the extension of the foregoing and who, having been duly sworn, states that
any representations therein contained are true.
Witness my hand and Notarial Seal this ____ day of _______ 2000.
===============================
My commission expires _______________.
<PAGE>
EXHIBIT I
FORM OF ERISA REPRESENTATION
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Bankers Trust Company Of California, N.A.
1761 E. St. Andrew Place
Santa Ana, California 92705
Re: HarborView Mortgage Loan Trust 2000-1,
Mortgage Loan Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
1. The undersigned is the ______________________ of (the
"Transferee") a [corporation duly organized] and existing under the laws of
__________, on behalf of which he makes this affidavit.
2. The Transferee either (x)(1) is not an employee benefit plan
subject to Section 406 or Section 407 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), the Trustee of any such plan or
a person acting on behalf of any such plan nor a person using the assets of
any such plan or (2) if the Transferee is an insurance company, such
Transferee is purchasing such Certificates with funds contained in an
"Insurance Company General Account" (as such term is defined in Section v(e)
of the Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificates are covered under PTCE 95-60; or
(y) shall deliver to the Trustee and the Depositor an opinion of counsel (a
"Benefit Plan Opinion") satisfactory to the Trustee and the Depositor, and
upon which the Trustee and the Depositor shall be entitled to rely, to the
effect that the purchase or holding of such Certificate by the Transferee will
not result in the assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA or the Code and will
not subject the Trustee, the Servicer or the Depositor to any obligation in
addition to those undertaken by such entities in the Pooling and Servicing
Agreement, which opinion of counsel shall not be an expense of the Trustee or
the Depositor.
3. The Transferee hereby acknowledges that under the terms of the
Pooling and Servicing Agreement (the "Agreement") among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, as
Seller, Countrywide Home Loans, Inc. and ABN AMRO Mortgage Group, Inc., each
as a Servicer, and Bankers Trust Company Of California, N.A., as Trustee, no
transfer of the ERISA-Restricted Certificates shall be permitted to be made to
any person unless the Depositor and Trustee have received a certificate from
such transferee in the form hereof.
<PAGE>
IN WITNESS WHEREOF, the Transferee has executed this
certificate.
---------------------------------
[Transferee]
By:______________________________
Name:
Title:
<PAGE>
EXHIBIT J
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Bankers Trust Company Of California, N.A.
1761 E. St. Andrew Place
Santa Ana, California 92705
Re: HarborView Mortgage Loan Trust 2000-1,
Mortgage Loan Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned
Certificates, we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we are an "accredited investor," as defined in Regulation D under
the Act, and have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Certificates, (d) we are not an
employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or a plan that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan, (e) we are acquiring the Certificates for investment for our
own account and not with a view to any distribution of such Certificates (but
without prejudice to our right at all times to sell or otherwise dispose of
the Certificates in accordance with clause (g) below), (f) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of
Section 5 of the Act, and (g) we will not sell, transfer or otherwise dispose
of any Certificates unless (1) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act or is
exempt from such registration requirements, and if requested, we will at our
expense provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made
<PAGE>
pursuant to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and Servicing Agreement.
Very truly yours,
[NAME OF TRANSFEREE]
By:
-----------------------------
Authorized Officer
<PAGE>
FORM OF RULE 144A INVESTMENT LETTER
[DATE]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Bankers Trust Company Of California, N.A.
1761 E. St. Andrew Place
Santa Ana, California 92705
Re: HarborView Mortgage Loan Trust 2000-1,
Mortgage Loan Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates
we certify that (a) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (c) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or
a plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as amended, nor are we acting on behalf of any such plan, (d) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificates, any interest in the Certificates or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Certificates under the Securities Act or that would render the disposition of
the Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(e) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
<PAGE>
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
Very truly yours,
[NAME OF TRANSFEREE]
By:
------------------------------
Authorized Officer
<PAGE>
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
i. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
ii. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $______ (1) in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation
(other than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or
banking institution organized under the laws of any State,
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by
the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings
and loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or
Federal authority having supervision over any such
institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer
registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
------------------------
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that
case, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
<PAGE>
___ Insurance Company. The Buyer is an insurance
company whose primary and predominant business activity is
the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of
Columbia.
___ State or Local Plan. The Buyer is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State
or its political subdivisions, for the benefit of its
employees.
___ ERISA Plan. The Buyer is an employee benefit
plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment
advisor registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a
small business investment 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. Buyer is a
business development company as defined in Section 202(a)(22)
of the Investment Advisors Act of 1940.
iii. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer, (ii) securities
that are part of an unsold allotment to or subscription by the Buyer, if the
Buyer is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
v. The Buyer acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
vi. Until the date of purchase of the Rule 144A Securities,
the Buyer will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
--------------------------
Print Name of Buyer
By:___________________________
Name:
Title:
Date:
---------------------------
<PAGE>
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A
under the Securities Act of 1933, as amended ("Rule 144A") because Buyer is
part of a Family of Investment Companies (as defined below), is such an
officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
___ The Buyer owned $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment
Companies which owned in the aggregate $ in securities
(other than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
---------------------------------
Print Name of Buyer or Adviser
By:
-------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------
Print Name of Buyer
Date:
-------------------------------
<PAGE>
EXHIBIT K
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Bankers Trust Company Of California, N.A.
1761 E. St. Andrews Place
Santa Ana, California 92705
Re: Mortgage Loan Trust 2000-1,
Mortgage Loan Pass-Through Certificates, Series 2000-1
Ladies and Gentlemen:
In connection with our disposition of the above 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 which would result in, a
violation of Section 5 of the Act, (c) to the extent we are disposing of a
Class [ ] Certificate, we have no knowledge the Transferee is not a Permitted
Transferee and (d) no purpose of the proposed disposition of a Class [ ]
Certificate is to impede the assessment or collection of tax.
Very truly yours,
[---------------------]
By: ____________________
<PAGE>
EXHIBIT L
AFFIDAVIT OF TRANSFER OF CLASS A-R CERTIFICATE
PURSUANT TO SECTION 5.02(d)
HARBORVIEW MORTGAGE LOAN TRUST 2000-1,
MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2000-1
STATE OF )
) Ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of a 100% Ownership Interest in the Class A-R
Certificate (the "Certificate") issued pursuant to the Pooling and Servicing
Agreement, (the "Agreement"), relating to the above-referenced Certificates,
among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital
Financial Products, as Seller, Countrywide Home Loans, Inc. and ABN AMRO
Mortgage Group, Inc., each as a Servicer, and Bankers Trust Company Of
California, N.A., as Trustee. Capitalized terms used, but not defined herein
or in Exhibit 1 hereto, shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest 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. The Transferee has provided financial statements or other financial
information requested by the Transferor in connection with the transfer of the
Certificate to permit the Transferor to assess the financial capability of the
Transferee to pay such taxes.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(d) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(d) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit L to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. The Transferee is not an employee benefit plan that is subject to
ERISA or a plan that is subject to Section 4975 of the Code, nor are we acting
on behalf of such a plan.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this day of , 20 .
[NAME OF TRANSFEREE]
By:
--------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
------------------------
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me
to be the same person who executed the foregoing instrument and to be the of
the Transferee, and acknowledged that he executed the same as his free act and
deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 .
----- --------- --
---------------------
NOTARY PUBLIC
My Commission expires the ___ day
of ____________________, 20__.
<PAGE>
EXHIBIT 1 to EXHIBIT L
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 Code Section
521) which is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Residual Certificate, (iv) rural electric and telephone cooperatives described
in Code Section 1381(a)(2)(c), (v) a Person that is not a citizen or resident
of the United States, a corporation, partnership, or other entity created or
organized in or under the laws of the United States, any state thereof or the
District of Columbia, or an estate or trust 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, (vi) an "electing large partnership" as
set forth in Code Section 775, and (vii) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the Transfer of Ownership
Interest in the Class A-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 Code Section 7701 or
successor provisions. A corporation will not be treated as an instrumentality
of the United States or of any State or political subdivision thereof if all
of its activities are subject to tax, and, with the exception of the Freddie
Mac, a majority of its board of directors is not selected by such governmental
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.
<PAGE>
EXHIBIT 2 to EXHIBIT L
Sections 5.02(d) and (e) of the Agreement
(d) (d) No transfer, sale, pledge or other disposition of any Private
Certificate shall be made unless such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and any applicable state securities laws or is made in accordance with
the 1933 Act and laws. In the event of any such transfer, (i) unless such
transfer is made in reliance upon Rule 144A (as evidenced by the investment
letter delivered to the Trustee, in substantially the form attached hereto as
Exhibit I under the 1933 Act, the Trustee and the Depositor shall require a
written Opinion of Counsel (which may be in-house counsel) acceptable to and
in form and substance reasonably satisfactory to the Trustee and the Depositor
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the 1933 Act or is being
made pursuant to the 1933 Act, which Opinion of Counsel shall not be an
expense of the Trustee or the Depositor or (ii) the Trustee shall require the
transferor to execute a transferor certificate (in substantially the form
attached hereto as Exhibit J) and the transferee to execute an investment
letter (in substantially the form attached hereto as Exhibit I) acceptable to
and in form and substance reasonably satisfactory to the Depositor and the
Trustee certifying to the Depositor and the Trustee the facts surrounding such
transfer, which investment letter shall not be an expense of the Trustee or
the Depositor. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Seller,
the Servicer and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of an ERISA-Restricted Certificate that is also a
Physical Certificate shall be made unless the Trustee shall have received
either (i) a representation from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor (such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I hereto), to the effect that such transferee is not an employee benefit plan
or arrangement subject to Section 406 of ERISA or a plan subject to Section
4975 of the Code, nor a person acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect
such transfer or (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60") and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in
the case of any ERISA-Restricted Certificate that is also a Physical
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or a plan or arrangement 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 or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel
satisfactory to the Trustee which Opinion of Counsel shall not be an expense
of either the Trustee or the Trust, addressed to the Trustee, to the effect
that the purchase and holding of such ERISA-Restricted Certificate that is
also a Physical Certificate will not result in the assets of the Trust being
deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee to any
obligation in addition to those expressly undertaken in this Agreement or to
any liability. Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate that is also a Physical
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code without the delivery to the Trustee of an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.
In the case of an ERISA-Restricted Certificate that is also a
Book-Entry Certificate, for purposes of clauses (i) or (ii) of the first
sentence of the preceding paragraph, such representations shall be deemed to
have been made to the Trustee by the transferee's acceptance of such
ERISA-Restricted Certificate that is also a Book-entry Certificate (or the
acceptance by a Certificate Owner of the beneficial interest in such
Certificate).
To the extent permitted under applicable law (including, but not
limited to, ERISA), neither the Trustee nor the Certificate Registrar shall
have any liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to the Holder
thereof or taking any other action with respect to such Holder under the
provisions of this Agreement so long as the transfer was registered by the
Trustee or the Certificate Registrar in accordance with the foregoing
requirements. In addition, neither the Trustee nor the Certificate Registrar
shall be required to monitor, determine or inquire as to compliance with the
transfer restrictions with respect to any ERISA-Restricted Certificates in the
form of Book-Entry Certificates, and neither the Trustee nor the Certificate
Registrar shall have any liability for transfers of Book-Entry Certificates or
any interests therein made in violation of the restrictions on transfer
described in the Prospectus Supplement and this Agreement.
(e) Each Person who has or who acquires any Ownership Interest in the
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably appointed the Depositor or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause (v)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in the Class A-R Certificate are expressly
subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
the Class A-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 the Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of the Class A-R Certificate
unless, in addition to the certificates required to be delivered
under subsection (b) above, the Trustee shall have been furnished
with an affidavit ("Transfer Affidavit") of the initial owner or
proposed transferee in the form attached hereto as Exhibit L.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Class A-R Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to it,
in form and substance satisfactory to it, of each of the following:
A. a Transferor Certificate in the form of Exhibit K hereto from the
proposed transferee to the effect that such transferee is a Permitted
Transferee and that it is not acquiring an Ownership Interest in the Class A-R
Certificate that is the subject of the proposed transfer as a nominee, trustee
or agent for any Person who is not a Permitted Transferee; and
B. a covenant of the proposed transferee to the effect that the
proposed transferee agrees to be bound by and to abide by the transfer
restrictions applicable to the Class A-R Certificate.
(iv) Any attempted or purported Transfer of any Ownership
Interest in the Class A-R Certificate in violation of the provisions
of this Section shall be absolutely null and void and shall vest no
rights in the purported transferee. If any purported transferee
shall, in violation of the provisions of this Section, become a
Holder of the Class A-R Certificate, then the prior Holder of the
Class A-R Certificate that is a Permitted Transferee shall, upon
discovery that the registration of Transfer of the Class A-R
Certificate was not in fact permitted by this Section, be restored
to all rights as Holder thereof retroactive to the date of
registration of transfer of the Class A-R Certificate. Neither the
Trustee nor the Certificate Registrar shall have any liability to
any Person for any registration of Transfer of the Class A-R
Certificate that is in fact not permitted by this Section or for
making any distributions due on the Class A-R Certificate to the
Holder thereof or taking any other action with respect to such
Holder under the provisions of this Agreement so long as the Trustee
received the documents specified in clause (iii). The Trustee shall
be entitled to recover from any Holder of the Class A-R Certificate
that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on the Class A-R
Certificate. Any such distributions so recovered by the Trustee
shall be distributed and delivered by the Trustee to the last Holder
of the Class A-R Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires
any Ownership Interest in the Class A-R Certificate in violation of
the restrictions in this Section, then the Trustee shall have the
right but not the obligation, without notice to the Holder of the
Class A-R Certificate or any other Person having an Ownership
Interest therein, to notify the Depositor to arrange for the sale of
the Class A-R Certificate. The proceeds of such sale, net of
commissions (which may include commissions payable to the Depositor
or its affiliates in connection with such sale), expenses and taxes
due, if any, will be remitted by the Trustee to the previous Holder
of the Class A-R Certificate that is a Permitted Transferee, except
that in the event that the Trustee determines that the Holder of the
Class A-R Certificate may be liable for any amount due under this
Section or any other provisions of this Agreement, the Trustee may
withhold a corresponding amount from such remittance as security for
such claim. The terms and conditions of any sale under this clause
(v) shall be determined in the sole discretion of the Trustee and it
shall not be liable to any Person having an Ownership Interest in
the Class A-R Certificate as a result of its exercise of such
discretion.
(vi) If any Person other than a Permitted Transferee acquires
any Ownership Interest in the Class A-R Certificate in violation of
the restrictions in this Section, then the Trustee upon receipt of
reasonable compensation will provide to the Internal Revenue
Service, and to the persons specified in Sections 860E(e)(3) and (6)
of the Code, information needed to compute the tax imposed under
Section 860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
(e) The foregoing provisions of this Section shall cease to apply to
transfers occurring on or after the date on which there shall have been
delivered to the Trustee and the Servicer, in form and substance satisfactory
to the Trustee, (i) written notification from the Rating Agencies that the
removal of the restrictions on Transfer set forth in this Section will not
cause such Rating Agency to downgrade its rating of the Certificates and (ii)
an Opinion of Counsel to the effect that such removal will not cause either
REMIC hereunder to fail to qualify as a REMIC.
<PAGE>
EXHIBIT M
Form of Liquidation Report
Customer Name:
Account Number:
Original Principal Balance:
1. Type of Liquidation (REO disposition/charge-off/short pay-off)
Date last paid
Date of foreclosure
Date of REO
Date of REO Disposition
Property Sale Price/Estimated Market Value at disposition
2. Liquidation Proceeds
Principal Prepayment $____________
Property Sale Proceeds ____________
Insurance Proceeds ____________
Other (itemize) ____________
Total Proceeds $____________
3. Liquidation Expenses
Servicing Advances $____________
Delinquency Advances ____________
Monthly Advances ____________
Servicing Fees ____________
Other Servicing Compensation ____________
Total Advances $____________
4. Net Liquidation Proceeds $____________
(Item 2 minus Item 3)
5. Principal Balance of Mortgage Loan $____________
6. Loss, if any (Item 5 minus Item 4) $____________
<PAGE>
Schedule I
Mortgage Loan Schedule
<PAGE>
Schedule II
Representations and Warranties of the Servicers
A. Representations and Warranties of Countrywide.
Countrywide Home Loans, Inc. hereby makes the representations and
warranties set forth in this Schedule IIB to the Depositor and the Trustee, as
of July 27, 2000, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule IIB shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement,
dated as of July 1, 2000 (the "Agreement"), among Greenwich Capital
Acceptance, Inc, as depositor (the "Depositor"), Greenwich Capital Financial
Products, Inc. ("GCFP"), as seller, Countrywide Home Loans, Inc.
("Countrywide") and ABN AMRO Mortgage Group, Inc. ("ABN AMRO"), each as a
servicer, and Bankers Trust Company of California, N.A., as trustee (the
"Trustee"). Each reference to a "Mortgage Loan" in this Schedule IIB shall
mean a Countrywide Loan, and each reference to a "Mortgaged Property" shall
mean a Mortgaged Property related to a Countrywide Loan. Each reference to the
"Servicer" in this Schedule IIB shall mean Countrywide, in its capacity as
servicer of the Countrywide Loans.
(i) The Servicer is duly organized, validly existing and in
good standing under the laws of New York and is qualified to
transact business in and is in good standing under the laws of each
state where a Mortgaged Property is located or is otherwise exempt
under applicable law from such qualification or is otherwise not
required under applicable law to effect such qualification and no
demand for such qualification has been made upon the Servicer by any
state having jurisdiction and in any event the Servicer is or will
be in compliance with the laws of any such state to the extent
necessary to insure the enforceability of each Mortgage Loan and the
servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
(ii) The Servicer has the full power and authority to execute,
deliver and perform, and to enter into and consummate, all
transactions contemplated by this Agreement. The Servicer has duly
authorized the execution, delivery and performance of this Agreement
and has duly executed and delivered this Agreement. This Agreement,
assuming due authorization, execution and delivery by each other
party hereto, constitutes a legal, valid and binding obligation of
the Servicer, enforceable against it in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy,
insolvency, or reorganization;
(iii) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the
terms, conditions or provisions of the Servicer's certificate of
incorporation or by-laws or result in a material breach of any legal
restriction or any agreement or instrument to which the Servicer is
now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order,
judgment or decree to which the Servicer or its property is subject
or impair the ability of the Purchaser to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans;
(iv) The Servicer is an approved seller/servicer for either
Fannie Mae or Freddie Mac in good standing and is a mortgagee
approved by the Secretary of HUD. No event has occurred, including
but not limited to a change in insurance coverage, which would make
the Servicer unable to comply with Fannie Mae, Freddie Mac or HUD
eligibility requirements or which would require notification to
Fannie Mae, Freddie Mac or HUD;
(v) The Servicer does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(vi) There is no action, suit, proceeding, investigation or
litigation pending or, to the Servicer's knowledge, threatened,
which either in any one instance or in the aggregate, if determined
adversely to the Servicer would adversely affect the execution,
delivery or enforceability of this Agreement, the ability of the
Servicer to service the Mortgage Loans hereunder in accordance with
the terms hereof, or the Servicer's ability to perform its
obligations under this Agreement;
(vii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the
Servicer with this Agreement or the terms of the Mortgage Loans or
the consummation of the transactions contemplated by this Agreement,
or if required, such consent, approval, authorization or order has
been obtained prior to the Closing Date;
(viii) The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the
Servicer;
(ix) No written statement, report or other document prepared
and furnished or to be prepared and furnished by the Servicer
pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact
or omits to state a material fact necessary to make the statements
contained therein not misleading; and
(x) The 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 MERS Mortgage Loans for
as long as such Mortgage Loans are registered with MERS.
<PAGE>
B. Representations and Warranties of ABN AMRO.
-------------------------------------------
ABN AMRO Mortgage Group, Inc. hereby makes the representations and
warranties set forth in this Schedule IIC to the Depositor and the Trustee, as
of July 27, 2000, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule IIC shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement,
dated as of July 1, 2000 (the "Agreement"), among Greenwich Capital
Acceptance, Inc, as depositor (the "Depositor"), Greenwich Capital Financial
Products, Inc. ("GCFP"), as seller, Countrywide Home Loans, Inc.
("Countrywide") and ABN AMRO Mortgage Group, Inc. ("ABN AMRO"), each as a
servicer, and Bankers Trust Company of California, N.A., as trustee (the
"Trustee"). Each reference to a "Mortgage Loan" in this Schedule IIC shall
mean a ABN AMRO Loan, and each reference to a "Mortgaged Property" shall mean
a Mortgaged Property related to a ABN AMRO Loan. Each reference to the
"Servicer" in this Schedule IIC shall mean ABN AMRO, in its capacity as
servicer of the ABN AMRO Loans.
(i) The Servicer is duly organized, validly existing and in good
standing under the laws of the state of Delaware and is and
will remain in compliance with the laws of each state in
which any Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan
and the servicing of the Mortgage Loan in accordance with
the terms of this Agreement;
(ii) The Servicer has the full power and authority to execute,
deliver and perform, and to enter into and consummate, all
transactions contemplated by this Agreement. The Servicer
has duly authorized the execution, delivery and performance
of this Agreement, has duly executed and delivered this
Agreement, and this Agreement, assuming due authorization,
execution and delivery by each other party hereto,
constitutes a legal, valid and binding obligation of the
Servicer, enforceable against it in accordance with its
terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization;
(iii) The execution and delivery of this Agreement by the Servicer
and the performance of and compliance with the terms of this
Agreement will not violate the Servicer's articles of
incorporation or by-laws or constitute a default under or
result in a breach or acceleration of, any material
contract, agreement or other instrument to which the
Servicer is a party or which may be applicable to the
Servicer or its assets;
(iv) The Servicer is not in violation of, and the execution and
delivery of this Agreement by the Servicer and its
performance and compliance with the terms of this Agreement
will not constitute a violation with respect to, any order
or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency having
jurisdiction over the Servicer or its assets, which
violation might have consequences that would materially and
adversely affect the condition (financial or otherwise) or
the operation of the Servicer or its assets or might have
consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The Servicer is an approved seller/servicer for Fannie Mae
and Freddie Mac in good standing and is a HUD approved
mortgagee pursuant to Section 203 of the National Housing
Act. No event has occurred, including but not limited to a
change in insurance coverage, which would make the Servicer
unable to comply with Fannie Mae, Freddie Mac or HUD
eligibility requirements or which would require notification
to Fannie Mae, Freddie Mac or HUD;
(vi) The Servicer does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every
covenant contained in this Agreement;
(vii) With respect to each Mortgage Loan, the Servicer is in
possession of a complete Mortgage File;
(viii) There are no actions or proceedings against, or
investigations of, the Servicer before any court,
administrative or other tribunal (A) that might prohibit its
entering into this Agreement, or (B) that might prohibit or
materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or
enforceability of, this Agreement;
(ix) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution,
delivery and performance by the Servicer of, or compliance
by the Servicer with, this Agreement or the consummation of
the transactions contemplated by this Agreement, except for
such consents, approvals, authorizations or orders, if any,
that have been obtained prior to the Closing Date;
(x) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the
Servicer;
(xi) The information delivered by the Servicer to the Seller, the
Depositor and the underwriter of the Public Certificates
with respect to the Servicer's loan loss, foreclosure and
delinquency experience for the twelve (12) months
immediately preceding the Closing Date on mortgage loans
underwritten to the same standards as the Mortgage Loans and
covering mortgaged properties similar to the Mortgaged
Properties, is true and correct in all material respects;
and
(xii) Neither this Agreement nor any written statement, report or
other document prepared and furnished or to be prepared and
furnished by the Servicer pursuant to this Agreement or in
connection with the transactions contemplated hereby
contains any untrue statement of material fact or omits to
state a material fact necessary to make the statements
contained herein or therein not misleading.
