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Exhibit 7.1
<PAGE>
CONFORMED COPY
PNC MORTGAGE SECURITIES CORP.,
as Depositor and Master Servicer
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
POOLING AND SERVICING AGREEMENT
$163,723,488.01
PNC Mortgage Securities Corp.
Mortgage Pass-Through Certificates
Series 2000-7
Cut-Off Date: September 1, 2000
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This Pooling and Servicing Agreement, dated and effective as of
September 1, 2000 (this "Agreement"), is executed by and between PNC
Mortgage Securities Corp., as Depositor and Master Servicer (the
"Company"), and State Street Bank and Trust Company, a Massachusetts trust
company with a corporate trust office at 225 Franklin Street, Boston, MA
02110, as Trustee (the "Trustee"). Capitalized terms used in this
Agreement and not otherwise defined have the meanings ascribed to such
terms in Article I hereof.
PRELIMINARY STATEMENT
The Company at the Closing Date is the owner of the Mortgage Loans and
the other property being conveyed by it to the Trustee for inclusion in the
Trust Fund. On the Closing Date, the Company will acquire the Certificates
from the REMIC I Trust Fund as consideration for its transfer to the Trust
Fund of the Mortgage Loans and certain other assets and will be the owner
of the Certificates. The Company has duly authorized the execution and
delivery of this Agreement to provide for the conveyance to the Trustee of
the Mortgage Loans and the issuance to the Company of the Certificates
representing in the aggregate the entire beneficial ownership of REMIC I.
All covenants and agreements made by the Company and the Trustee herein
with respect to the Mortgage Loans and the other property constituting the
assets of REMIC I are for the benefit of the Holders from time to time of
the Certificates. The Company is entering into this Agreement, and the
Trustee is accepting the trust created hereby, for good and valuable
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consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Certificates issued hereunder, other than the Junior Subordinate
Certificates, have been offered for sale pursuant to a Prospectus, dated
July 26, 2000, and a Prospectus Supplement, dated September 27, 2000, of
the Company (together, the "Prospectus"). The Junior Subordinate
Certificates have been offered for sale pursuant to a Private Placement
Memorandum, dated September 29, 2000. The Trust Fund is intended to be the
"Trust" described in the Prospectus and the Private Placement Memorandum
and the Certificates are intended to be the "Certificates" described
therein. The following tables set forth the designation, type of interest,
Certificate Interest Rate, initial Class Principal Balance and Final
Maturity Date for the Certificates:
REMIC I Interests
<TABLE>
<CAPTION>
REMIC I
Class Designation
for each REMIC I
Regular Interest
and the Class R-1 Type of Remittance Initial Class Final Maturity
Certificates Interest Rate (1) Principal Balance Date*
----------------- -------- ------------- ----------------- --------------
<S> <C> <C> <C> <C>
Class A-1 Regular Variable (2) $ 152,672,000.00 May 2040
Class X Regular Variable (3) ------ May 2040
Class B-1 Regular Variable (2) 4,093,000.00 May 2040
Class B-2 Regular Variable (2) 2,046,600.00 May 2040
Class B-3 Regular Variable (2) 1,637,200.00 May 2040
Class B-4 Regular Variable (2) 1,555,400.00 May 2040
Class B-5 Regular Variable (2) 818,600.00 May 2040
Class B-6 Regular Variable (2) 900,638.01 May 2040
Class R+ Residual Variable (2) 50.00 May 2040
* The Distribution Date in the month following the month the latest
maturing Mortgage Loan matures.
+ The Class R Certificates are entitled to receive the Residual
Distribution Amount and any Excess Liquidation Proceeds.
(1) Interest distributed to the Certificates on each Distribution Date will
have accrued at the applicable per annum Certificate Interest Rate on the
Class Principal Balance or Class Notional Amount outstanding following the
immediately prior Distribution Date (or, with respect to the first
Distribution Date, as of the Closing Date).
(2) On each Distribution Date on or before the Distribution Date in April
2005, the Certificate Interest Rate on the Class A-1, Class B and Class R
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Certificates shall equal the lesser of (i) 7.500% per annum and (ii) the
weighted average of the Pass-Through Rates on the Mortgage Loans as of the
second preceding Due Date. On each Distribution Date after the
Distribution Date in April 2005, the Certificate Interest Rate on the Class
A-1, Class B and Class R Certificates shall equal the weighted average of
the Pass-Through Rates on the Mortgage Loans as of the second preceding Due
Date less 0.1215% per annum.
(3) The Class X Certificates shall accrue interest on the Class X Notional
Amount. The Class X Certificates shall not be entitled to receive any
distributions of principal. On each Distribution Date on or before the
Distribution Date in April 2005, the Certificate Interest Rate on the Class
X Certificates shall equal the excess, if any, of (i) the weighted average
of the Pass-Through Rates on the Mortgage Loans as of the second preceding
Due Date over (ii) 7.500% per annum. On each Distribution Date after the
Distribution Date in April 2005, the Certificate Interest Rate on the Class
X Certificates shall equal 0.1215% per annum.
</TABLE>
As provided herein, with respect to REMIC I, the Company will cause an
election to be made on behalf of REMIC I to be treated for federal income
tax purposes as a REMIC. The Certificates (other than the Class R
Certificates) will be designated regular interests in REMIC I and the Class
R Certificates will be designated the sole class of residual interest in
REMIC I, for purposes of the REMIC Provisions. As of the Cut-Off Date, the
Mortgage Loans have an aggregate Principal Balance of $163,723,488.01 and
the Certificates have an Aggregate Certificate Principal Balance of
$163,723,488.01.
W I T N E S S E T H :
WHEREAS, the Company is a corporation duly organized and existing
under and by virtue of the laws of the State of Delaware and has full
corporate power and authority to enter into this Agreement and to undertake
the obligations undertaken by it herein;
WHEREAS, the Company is the owner of the Mortgage Loans identified in
the Mortgage Loan Schedule hereto having unpaid Principal Balances on the
Cut-Off Date as stated therein;
WHEREAS, the Company has been duly authorized to (i) create a trust
(the "Trust Fund") to hold the Mortgage Loans and certain other property
and (ii) sell undivided beneficial ownership interests in REMIC I and in
order to do so is selling the Certificates issued hereunder as hereinafter
provided; and
WHEREAS, the Trustee is a Massachusetts trust company duly organized
and existing under the laws of The Commonwealth of Massachusetts and has
full power and authority to enter into this Agreement.
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NOW, THEREFORE, in order to declare the terms and conditions upon
which the Certificates are, and are to be, authenticated, issued and
delivered, and in consideration of the premises and of the purchase and
acceptance of the Certificates by the Holders thereof, the Company
covenants and agrees with the Trustee, for the equal and proportionate
benefit of the respective Holders from time to time of the Certificates, as
follows:
ARTICLE I
Section 1.01. Definitions.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Adjustment Date: As to each Mortgage Loan, a Due Date on or about the
fifth anniversary of the first Due Date and each anniversary of the first
Due Date thereafter, as set forth in the related Mortgage Note, on which
date an adjustment to the Mortgage Interest Rate of such Mortgage Loan
becomes effective.
Aggregate Certificate Principal Balance: At any given time, the sum of
the then current Class Principal Balances of the Certificates.
Appraised Value: The amount set forth in an appraisal made by or for
(a) the mortgage originator in connection with its origination of each
Mortgage Loan, (b) with respect to a Mortgage Loan originated to refinance
mortgage debt, the originator of such mortgage debt or (c) the Servicer, at
any time, in accordance with the Selling and Servicing Contract.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
the assignment or mortgage of the related Cooperative Lease from the
Mortgagor to the originator of the Cooperative Loan.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 8.11.
Authorized Denomination: With respect to the Certificates (other than
the Class A-1, Class X and Residual Certificates), an initial Certificate
Principal Balance equal to $25,000 and multiples of $1 in excess thereof,
except that one Certificate of each Class of the Junior Subordinate
Certificates may be issued in an amount that is not an integral multiple of
$1. With respect to the Class A-1 Certificates, an initial Certificate
Principal Balance equal to $50,000 and multiples of $1 in excess thereof.
With respect to the Class X Certificates, a Class Notional Amount as of the
Cut-Off Date equal to $100,000 and multiples of $1 in excess thereof. With
respect to the Residual Certificates, one Certificate with a Percentage
Interest equal to 0.01% and one Certificate with a Percentage Interest
equal to 99.99%.
Available Distribution Amount: For any Distribution Date, the sum of
the following amounts with respect to the Mortgage Loans:
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(1) the total amount of all cash received by or on behalf of the
Master Servicer with respect to the Mortgage Loans by the Determination
Date for such Distribution Date and not previously distributed, including
Monthly P&I Advances made by Servicers, Liquidation Proceeds and scheduled
amounts of distributions from Buydown Funds respecting Buydown Loans, if
any, except:
(a) all scheduled payments of principal and interest collected
but due subsequent to such Distribution Date;
(b) all Curtailments received after the Prior Period;
(c) all Payoffs received after the Payoff Period immediately
preceding such Distribution Date (together with any interest payment
received with such Payoffs to the extent that it represents the
payment of interest accrued on the Mortgage Loans for the period
subsequent to the Prior Period), and interest which was accrued and
received on Payoffs received during the period from the 1st to the
14th day of the month of such Distribution Date, which interest shall
not be included in the calculation of the Available Distribution
Amount for any Distribution Date;
(d) Insurance Proceeds and Liquidation Proceeds received on the
Mortgage Loans after the Prior Period;
(e) all amounts in the Certificate Account which are due and
reimbursable to a Servicer or the Master Servicer pursuant to the
terms of this Agreement;
(f) the sum of the Master Servicing Fee and the Servicing Fee
for each Mortgage Loan and any Special Primary Insurance Premiums
payable on such Distribution Date with respect to such Mortgage Loan;
and
(g) Excess Liquidation Proceeds;
(2) the sum, to the extent not previously distributed, of the
following amounts, to the extent advanced or received, as applicable, by
the Master Servicer:
(a) any Monthly P&I Advance made by the Master Servicer to the
Trustee with respect to such Distribution Date relating to the
Mortgage Loans; and
(b) Compensating Interest; and
(3) the total amount of all cash received during the Prior Period by
the Trustee or the Master Servicer in respect of a Purchase Obligation
under Section 2.02 and Section 2.03 or any permitted repurchase of a
Mortgage Loan.
Bankruptcy Coverage: $100,000 less (a) any scheduled or permissible
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reduction in the amount of Bankruptcy Coverage pursuant to this definition
and (b) Bankruptcy Losses allocated to the Certificates.
The Bankruptcy Coverage may be reduced upon written confirmation from
the Rating Agencies that such reduction will not adversely affect the then
current ratings assigned to the Certificates by the Rating Agencies.
Bankruptcy Loss: A loss on a Mortgage Loan arising out of (i) a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a
court of competent jurisdiction in a case under the United States
Bankruptcy Code, other than any such reduction that arises out of clause
(ii) of this definition of "Bankruptcy Loss", including, without
limitation, any such reduction that results in a permanent forgiveness of
principal, or (ii) with respect to any Mortgage Loan, a valuation, by a
court of competent jurisdiction in a case under such Bankruptcy Code, of
the related Mortgaged Property in an amount less than the then outstanding
Principal Balance of such Mortgage Loan.
Beneficial Holder: A Person holding a beneficial interest in any Book-
Entry Certificate as or through a DTC Participant or an Indirect DTC
Participant or a Person holding a beneficial interest in any Definitive
Certificate.
Book-Entry Certificates: The Class A-1 and Class X Certificates,
beneficial ownership and transfers of which shall be made through book
entries as described in Section 5.07.
Business Day: Any day other than a Saturday, a Sunday, or a day on
which banking institutions in Chicago, Illinois, Boston, Massachusetts or
New York, New York are authorized or obligated by law or executive order to
be closed.
Buydown Agreement: An agreement between a Person and a Mortgagor
pursuant to which such Person has provided a Buydown Fund.
Buydown Fund: A fund provided by the originator of a Mortgage Loan or
another Person with respect to a Buydown Loan which provides an amount
sufficient to subsidize regularly scheduled principal and interest payments
due on such Buydown Loan for a period. Buydown Funds may be (i) funded at
the par values of future payment subsidies, or (ii) funded in an amount
less than the par values of future payment subsidies, and determined by
discounting such par values in accordance with interest accruing on such
amounts, in which event they will be deposited in an account bearing
interest. Buydown Funds may be held in a separate Buydown Fund Account or
may be held in a Custodial Account for P&I or a Custodial Account for
Reserves and monitored by a Servicer.
Buydown Fund Account: A separate account or accounts created and
maintained pursuant to Section 3.02 (a) with the corporate trust department
of the Trustee or another financial institution approved by the Master
Servicer, (b) within FDIC insured accounts (or other accounts with
comparable insurance coverage acceptable to the Rating Agencies) created,
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maintained and monitored by a Servicer or (c) in a separate non-trust
account without FDIC or other insurance in an Eligible Institution. Such
account or accounts may be non-interest bearing or may bear interest. In
the event that a Buydown Fund Account is established pursuant to clause (b)
of the preceding sentence, amounts held in such Buydown Fund Account shall
not exceed the level of deposit insurance coverage on such account;
accordingly, more than one Buydown Fund Account may be established.
Buydown Loan: A Mortgage Loan for which the Mortgage Interest Rate has
been subsidized through a Buydown Fund provided at the time of origination
of such Mortgage Loan.
Call Option Agreement: The Call Option Agreement, dated as of
September 29, 2000, between DLJ and the Trustee.
Certificate: Any one of the Certificates issued pursuant to this
Agreement, executed by the Trustee and authenticated by or on behalf of the
Trustee hereunder in substantially one of the forms set forth in Exhibit A
hereto. The additional matter appearing in Exhibit H shall be deemed
incorporated into Exhibit A as though set forth at the end of such Exhibit.
Certificate Account: The separate trust account created and maintained
with the Trustee, the Investment Depository or any other bank or trust
company acceptable to the Rating Agencies which is incorporated under the
laws of the United States or any state thereof pursuant to Section 3.04,
which account shall bear a designation clearly indicating that the funds
deposited therein are held in trust for the benefit of the Trustee on
behalf of the Certificateholders or any other account serving a similar
function acceptable to the Rating Agencies. Funds in the Certificate
Account may be invested in Eligible Investments pursuant to Section 3.04(b)
and reinvestment earnings thereon shall be paid to the Master Servicer as
additional servicing compensation. Funds deposited in the Certificate
Account (exclusive of the Master Servicing Fee) shall be held in trust for
the Certificateholders and for the uses and purposes set forth in Section
2.01, Section 3.04, Section 3.05 and Section 4.01.
Certificateholder or Holder: With respect to the Certificates, the
person in whose name a Certificate is registered in the Certificate
Register, except that, solely for the purposes of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Company, the Master Servicer or any affiliate thereof shall be deemed not
to be outstanding and the Percentage Interest evidenced thereby shall not
be taken into account in determining whether the requisite percentage of
Percentage Interests necessary to effect any such consent has been
obtained; provided, that the Trustee may conclusively rely upon an
Officer's Certificate to determine whether any Person is an affiliate of
the Company or the Master Servicer.
Certificate Interest Rate: For each Class of Certificates, the per
annum rate set forth as the Certificate Interest Rate for such Class in the
Preliminary Statement hereto.
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Certificate Principal Balance: For each Certificate of any Class, the
portion of the related Class Principal Balance, if any, represented by such
Certificate.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed, respectively, pursuant to Section
5.03.
Class: All Certificates having the same priority and rights to
payments on the Mortgage Loans from the Available Distribution Amount,
which Certificates shall be designated as a separate Class, and which shall
be set forth in the applicable forms of Certificates attached hereto as
Exhibit A. Each Class of Certificates shall be entitled to receive the
amounts allocated to such Class pursuant to the definition of "Distribution
Amount" only to the extent of the Available Distribution Amount for such
Distribution Date remaining after distributions in accordance with prior
clauses of the definition of "Distribution Amount."
Class A-1 Certificates: The Certificates designated as "Class A-1" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
Class B-1 Certificates: The Certificates designated as "Class B-1" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-2 Certificates: The Certificates designated as "Class B-2" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-3 Certificates: The Certificates designated as "Class B-3" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-4 Certificates: The Certificates designated as "Class B-4" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-5 Certificates: The Certificates designated as "Class B-5" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class B-6 Certificates: The Certificates designated as "Class B-6" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class Principal Balance: For any Class of Certificates, the applicable
initial Class Principal Balance therefor set forth in the Preliminary
Statement hereto, corresponding to the rights of such Class in payments of
principal due to be passed through to the Certificateholders from principal
payments on the Mortgage Loans, as reduced from time to time by (x)
distributions of principal to the Certificateholders of such Class and (y)
the portion of Realized Losses allocated to the Class Principal Balance of
such Class pursuant to the definition of "Realized Loss" with respect to a
given Distribution Date. For any Distribution Date, the reduction of the
Class Principal Balance of any Class of Certificates pursuant to the
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definition of "Realized Loss" shall be deemed effective prior to the
determination and distribution of principal on such Class pursuant to the
definition of "Distribution Amount." Notwithstanding the foregoing, any
amounts distributed in respect of losses pursuant to paragraph (xxiii) of
the definition of "Distribution Amount" shall not cause a further reduction
in the Class Principal Balances of the Class B Certificates. The Class
Principal Balance for the Class A-1 Certificates shall be referred to as
the "Class A-1 Principal Balance" and so on. The Class X Principal Balance
shall be zero.
Class R Certificates: The Certificates designated as "Class R" on the
face thereof in substantially the form attached hereto as Exhibit A, which
have been designated as the single class of "residual interest" in REMIC I
pursuant to Section 2.01.
Class X Certificates: The Certificates designated as "Class X" on the
face thereof in substantially the form attached hereto as Exhibit A.
Class X Notional Amount: With respect to any Distribution Date, the
aggregate scheduled principal balance of the Mortgage Loans, as of the
second preceding Due Date after giving effect to payments scheduled to be
received as of such Due Date, whether or not received (and after giving
effect to Principal Prepayments, Monthly P&I Advances and the principal
portion of Realized Losses applied prior to such Due Date), or with respect
to the initial Distribution Date, as of the Cut-Off Date.
Clean-Up Call Percentage: 10%.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
which initially shall be DTC.
Closing Date: September 29, 2000, which is the date of settlement of
the sale of the Certificates to the original purchasers thereof.
Code: The Internal Revenue Code of 1986, as amended.
Company: PNC Mortgage Securities Corp., a Delaware corporation, or its
successor-in-interest.
Compensating Interest: For any Distribution Date, the lesser of (i)
the sum of (a) the aggregate Master Servicing Fee payable with respect to
the Mortgage Loans, (b) the aggregate Payoff Earnings with respect to the
Mortgage Loans and (c) the aggregate Payoff Interest with respect to the
Mortgage Loans and (ii) the aggregate Uncollected Interest with respect to
the Mortgage Loans.
Cooperative: A private, cooperative housing corporation organized
under the laws of, and headquartered in, the State of New York which owns
or leases land and all or part of a building or buildings located in any
such state, including apartments, spaces used for commercial purposes and
common areas therein and whose board of directors authorizes, among other
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things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment
occupied by the Mortgagor and relating to the related Cooperative Stock,
which lease or agreement confers an exclusive right to the holder of such
Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii)
an assignment or mortgage of the Cooperative Lease, (iv) financing
statements and (v) a stock power (or other similar instrument), and
ancillary thereto, a recognition agreement between the Cooperative and the
originator of the Cooperative Loan, each of which was transferred and
assigned to the Trustee pursuant to Section 2.01 and are from time to time
held as part of the Trust Fund created hereunder.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership
instrument in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan,
the stock certificate or other instrument evidencing the related
Cooperative Stock.
Corporate Trust Office: The corporate trust office of the Trustee in
the Commonwealth of Massachusetts, at which at any particular time its
corporate trust business with respect to this Agreement shall be
administered, which office at the date of the execution of this Agreement
is located at 225 Franklin Street, Boston, MA 02110, Attention: Corporate
Trust PNC 2000-7.
Curtailment: Any payment (exclusive of any prepayment penalty) of
principal on a Mortgage Loan, made by or on behalf of the related
Mortgagor, other than a Monthly Payment, a Prepaid Monthly Payment or a
Payoff, which is applied to reduce the outstanding principal balance of the
Mortgage Loan.
Curtailment Shortfall: With respect to any Curtailment applied with a
Monthly Payment other than a Prepaid Monthly Payment, an amount equal to
one month's interest on such Curtailment at the applicable Pass-Through
Rate on such Mortgage Loan.
Custodial Account for P&I: The Custodial Account for principal and
interest established and maintained by each Servicer pursuant to its
Selling and Servicing Contract and caused by the Master Servicer to be
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established and maintained pursuant to Section 3.02 (a) with the corporate
trust department of the Trustee or another financial institution approved
by the Master Servicer such that the rights of the Master Servicer, the
Trustee and the Certificateholders thereto shall be fully protected against
the claims of any creditors of the applicable Servicer and of any creditors
or depositors of the institution in which such account is maintained, (b)
within FDIC insured accounts (or other accounts with comparable insurance
coverage acceptable to the Rating Agencies) created, maintained and
monitored by a Servicer or (c) in a separate non-trust account without FDIC
or other insurance in an Eligible Institution. In the event that a
Custodial Account for P&I is established pursuant to clause (b) of the
preceding sentence, amounts held in such Custodial Account for P&I shall
not exceed the level of deposit insurance coverage on such account;
accordingly, more than one Custodial Account for P&I may be established.
Any amount that is at any time not protected or insured in accordance with
the first sentence of this definition of "Custodial Account for P&I" shall
promptly be withdrawn from such Custodial Account for P&I and be remitted
to the Investment Account.
Custodial Account for Reserves: The Custodial Account for Reserves
established and maintained by each Servicer pursuant to its Selling and
Servicing Contract and caused by the Master Servicer to be established and
maintained pursuant to Section 3.02 (a) with the corporate trust department
of the Trustee or another financial institution approved by the Master
Servicer such that the rights of the Master Servicer, the Trustee and the
Certificateholders thereto shall be fully protected against the claims of
any creditors of the applicable Servicer and of any creditors or depositors
of the institution in which such account is maintained, (b) within FDIC
insured accounts (or other accounts with comparable insurance coverage
acceptable to the Rating Agencies) created, maintained and monitored by a
Servicer or (c) in a separate non-trust account without FDIC or other
insurance in an Eligible Institution. In the event that a Custodial Account
for Reserves is established pursuant to clause (b) of the preceding
sentence, amounts held in such Custodial Account for Reserves shall not
exceed the level of deposit insurance coverage on such account;
accordingly, more than one Custodial Account for Reserves may be
established. Any amount that is at any time not protected or insured in
accordance with the first sentence of this definition of "Custodial Account
for Reserves" shall promptly be withdrawn from such Custodial Account for
Reserves and be remitted to the Investment Account.
Custodial Agreement: The agreement, if any, among the Master Servicer,
the Trustee and a Custodian providing for the safekeeping of the Mortgage
Files on behalf of the Certificateholders.
Custodian: A custodian (other than the Trustee) which is not an
affiliate of the Master Servicer or the Company and which is appointed
pursuant to a Custodial Agreement. Any Custodian so appointed shall act as
agent on behalf of the Trustee, and shall be compensated by the Trustee at
no additional charge to the Master Servicer. The Trustee shall remain at
all times responsible under the terms of this Agreement, notwithstanding
the fact that certain duties have been assigned to a Custodian.
<PAGE> 12
Cut-Off Date: September 1, 2000.
Definitive Certificates: Certificates in definitive, fully registered
and certificated form.
Depositary Agreement: The Letter of Representations, dated September
27, 2000 by and among DTC, the Company and the Trustee.
Destroyed Mortgage Note: A Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Determination Date: A day not later than the 10th day preceding a
related Distribution Date, as determined by the Master Servicer.
Disqualified Organization: Any Person which is not a Permitted
Transferee, but does not include any Pass-Through Entity which owns or
holds a Residual Certificate and of which a Disqualified Organization,
directly or indirectly, may be a stockholder, partner or beneficiary.
Distribution Amount: For any Distribution Date, the Available
Distribution Amount for such Distribution Date shall be distributed to the
Certificates in the following amounts and priority, to the extent of the
Available Distribution Amount for such Distribution Date remaining
following prior distributions, if any, on such Distribution Date:
(i) first, to the Class A-1, Class X and Class R Certificates,
concurrently, the sum of the Interest Distribution Amounts for such
Classes of Certificates remaining unpaid from previous Distribution
Dates, pro rata according to their respective shares of such unpaid
amounts;
(ii) second, to the Class A-1, Class X and Class R Certificates,
concurrently, the sum of the Interest Distribution Amounts for such
Classes of Certificates for the current Distribution Date, pro rata
according to their respective Interest Distribution Amounts;
(iii) third, to the Class R Certificates, as principal, until the
Class R Principal Balance has been reduced to zero;
(iv) fourth, to the Class A-1 Certificates, as principal, the Senior
Principal Distribution Amount;
(v) fifth, to the Class B-1 Certificates, the Interest Distribution
Amount for such Class of Certificates remaining unpaid from previous
Distribution Dates;
(vi) sixth, to the Class B-1 Certificates, the Interest Distribution
Amount for such Class of Certificates for the current Distribution
Date;
(vii) seventh, to the Class B-1 Certificates, the portion of the
Subordinate Principal Distribution Amount allocable to such Class of
<PAGE> 13
Certificates pursuant to the definition of "Subordinate Principal
Distribution Amount", until the Class B-1 Principal Balance has been
reduced to zero;
(viii) eighth, to the Class B-2 Certificates, the Interest Distribu-
tion Amount for such Class of Certificates remaining unpaid from previous
Distribution Dates;
(ix) ninth, to the Class B-2 Certificates, the Interest Distribu-
tion Amount for such Class of Certificates for the current Distribution
Date;
(x) tenth, to the Class B-2 Certificates, the portion of the
Subordinate Principal Distribution Amount allocable to such Class of
Certificates pursuant to the definition of "Subordinate Principal
Distribution Amount", until the Class B-2 Principal Balance has been
reduced to zero;
(xi) eleventh, to the Class B-3 Certificates, the Interest
Distribution Amount for such Class of Certificates remaining unpaid
from previous Distribution Dates;
(xii) twelfth, to the Class B-3 Certificates, the Interest Distribu-
tion Amount for such Class of Certificates for the current Distribution
Date;
(xiii) thirteenth, to the Class B-3 Certificates, the portion of the
Subordinate Principal Distribution Amount allocable to such Class of
Certificates pursuant to the definition of "Subordinate Principal
Distribution Amount", until the Class B-3 Principal Balance has been
reduced to zero;
(xiv) fourteenth, to the Class B-4 Certificates, the Interest
Distribution Amount for such Class of Certificates remaining unpaid
from previous Distribution Dates;
(xv) fifteenth, to the Class B-4 Certificates, the Interest
Distribution Amount for such Class of Certificates for the current
Distribution Date;
(xvi) sixteenth, to the Class B-4 Certificates, the portion of the
Subordinate Principal Distribution Amount allocable to such Class of
Certificates pursuant to the definition of "Subordinate Principal
Distribution Amount", until the Class B-4 Principal Balance has been
reduced to zero;
(xvii) seventeenth, to the Class B-5 Certificates, the Interest
Distribution Amount for such Class of Certificates remaining unpaid
from previous Distribution Dates;
(xviii) eighteenth, to the Class B-5 Certificates, the Interest
Distribution Amount for such Class of Certificates for the current
<PAGE> 14
Distribution Date;
(xvix) nineteenth, to the Class B-5 Certificates, the portion of the
Subordinate Principal Distribution Amount allocable to such Class of
Certificates pursuant to the definition of "Subordinate Principal
Distribution Amount", until the Class B-5 Principal Balance has been
reduced to zero;
(xx) twentieth, to the Class B-6 Certificates, the Interest
Distribution Amount for such Class of Certificates remaining unpaid
from previous Distribution Dates;
(xxi) twenty-first, to the Class B-6 Certificates, the Interest
Distribution Amount for such Class of Certificates for the current
Distribution Date;
(xxii) twenty-second, to the Class B-6 Certificates, the portion
of the Subordinate Principal Distribution Amount allocable to such
Class of Certificates pursuant to the definition of "Subordinate Principal
Distribution Amount", until the Class B-6 Principal Balance has been
reduced to zero;
(xxiii) twenty-third, to each Class of Class B Certificates
in order of seniority, the remaining portion, if any, of the Available
Distribution Amount, up to the amount of unreimbursed Realized Losses
previously allocated to such Class, if any; provided, however, that
any amounts distributed pursuant to this paragraph (xxiii) of this
definition of "Distribution Amount" shall not cause a further
reduction in the Class Principal Balances of any of the Class B
Certificates; and
(xxiv) twenty-fourth, to the Class R Certificates, the Residual
Distribution Amount for such Distribution Date.
Distribution Date: With respect to distributions on the Certificates,
the 25th day (or, if such 25th day is not a Business Day, the Business Day
immediately succeeding such 25th day) of each month, with the first such
date being October 25, 2000. The "related Due Date" for any Distribution
Date is the Due Date immediately preceding such Distribution Date.
DLJ: Donaldson, Lufkin & Jenrette Securities Corporation.
DTC: The Depository Trust Company.
DTC Participant: A broker, dealer, bank, other financial institution
or other Person for whom DTC effects book-entry transfers and pledges of
securities deposited with DTC.
Due Date: The day on which the Monthly Payment for each Mortgage Loan
is due.
Eligible Institution: An institution having (i) the highest short-term
<PAGE> 15
debt rating, and one of the two highest long-term debt ratings of the
Rating Agencies, (ii) with respect to any Custodial Account for P&I and
special Custodial Account for Reserves, an unsecured long-term debt rating
of at least one of the two highest unsecured long-term debt ratings of the
Rating Agencies, (iii) with respect to any Buydown Fund Account or
Custodial Account which also serves as a Buydown Fund Account, the highest
unsecured long-term debt rating by the Rating Agencies, or (iv) the
approval of the Rating Agencies. Such institution may be the Servicer if
the applicable Selling and Servicing Contract requires the Servicer to
provide the Master Servicer with written notice on the Business Day
following the date on which the Servicer determines that such Servicer's
short-term debt and unsecured long-term debt ratings fail to meet the
requirements of the prior sentence.
Eligible Investments: Any one or more of the obligations or securities
listed below in which funds deposited in the Investment Account, the
Certificate Account, the Custodial Account for P&I and the Custodial
Account for Reserves may be invested:
(i) Obligations of, or guaranteed as to principal and interest by,
the United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United States;
(ii) Repurchase agreements on obligations described in clause (i) of
this definition of "Eligible Investments", provided that the unsecured
obligations of the party (including the Trustee in its commercial
capacity) agreeing to repurchase such obligations have at the time one
of the two highest short term debt ratings of the Rating Agencies and
provided that such repurchaser's unsecured long term debt has one of
the two highest unsecured long term debt ratings of the Rating
Agencies;
(iii) Federal funds, certificates of deposit, time deposits and
bankers' acceptances of any U.S. bank or trust company incorporated
under the laws of the United States or any state (including the
Trustee in its commercial capacity), provided that the debt
obligations of such bank or trust company (or, in the case of the
principal bank in a bank holding company system, debt obligations of
the bank holding company) at the date of acquisition thereof have one
of the two highest short term debt ratings of the Rating Agencies and
unsecured long term debt has one of the two highest unsecured long
term debt ratings of the Rating Agencies;
(iv) Obligations of, or obligations guaranteed by, any state of the
United States or the District of Columbia, provided that such
obligations at the date of acquisition thereof shall have the highest
long-term debt ratings available for such securities from the Rating
Agencies;
(v) Commercial paper of any corporation incorporated under the laws
of the United States or any state thereof, which on the date of
acquisition has the highest commercial paper rating of the Rating
<PAGE> 16
Agencies, provided that the corporation has unsecured long term debt
that has one of the two highest unsecured long term debt ratings of
the Rating Agencies;
(vi) Securities (other than stripped bonds or stripped coupons)
bearing interest or sold at a discount that are issued by any
corporation incorporated under the laws of the United States or any
state thereof and have the highest long-term unsecured rating
available for such securities from the Rating Agencies; provided,
however, that securities issued by any such corporation will not be
investments to the extent that investment therein would cause the
outstanding principal amount of securities issued by such corporation
that are then held as part of the Investment Account or the
Certificate Account to exceed 20% of the aggregate principal amount of
all Eligible Investments then held in the Investment Account and the
Certificate Account;
(vii) Units of taxable money market funds (which may be 12b-1
funds, as contemplated under the rules promulgated by the Securities
and Exchange Commission under the Investment Company Act of 1940), which
funds have the highest rating available for such securities from the
Rating Agencies or which have been designated in writing by the Rating
Agencies as Eligible Investments; and
(viii) Such other investments the investment in which will not, as
evidenced by a letter from each of the Rating Agencies, result in the
downgrading or withdrawal of the Ratings;
provided, however, that such obligation or security is held for a temporary
period pursuant to Section 1.860G-2(g)(1) of the Treasury Regulations, and
that such period can in no event exceed thirteen months.
In no event shall an instrument be an Eligible Investment if such
instrument (a) evidences a right to receive only interest payments with
respect to the obligations underlying such instrument or (b) has been
purchased at a price greater than the outstanding principal balance of such
instrument.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificate: Any Class B or Residual Certificate.
Event of Default: Any event of default as specified in Section 7.01.
Excess Liquidation Proceeds: With respect to any Distribution Date,
the excess, if any, of aggregate Liquidation Proceeds received during the
Prior Period over the amount that would have been received if Payoffs had
been made with respect to such Mortgage Loans on the date such Liquidation
Proceeds were received.
FDIC: Federal Deposit Insurance Corporation, or any successor thereto.
<PAGE> 17
FHA: Federal Housing Administration, or any successor thereto.
Fannie Mae: The entity formerly known as the Federal National Mortgage
Association, or any successor thereto.
Final Maturity Date: With respect to each Class of Certificates, the
date set forth in the table contained in the Preliminary Statement hereto.
Fraud Coverage: During the period prior to the first anniversary of
the Cut-Off Date, 2.00% of the aggregate principal balance of the Mortgage
Loans as of the Cut-Off Date (the "Initial Fraud Coverage"), reduced by
Fraud Losses allocated to the Certificates since the Cut-Off Date; during
the period from the first anniversary of the Cut-Off Date to (but not
including) the fifth anniversary of the Cut-Off Date, the amount of the
Fraud Coverage on the most recent previous anniversary of the Cut-Off Date
(calculated in accordance with the second sentence of this paragraph)
reduced by Fraud Losses allocated to the Certificates since such
anniversary; and during the period on and after the fifth anniversary of
the Cut-Off Date, zero. On each anniversary of the Cut-Off Date, the Fraud
Coverage shall be reduced to the lesser of (i) on the first, second, third
and fourth anniversaries of the Cut-Off Date, 1.00% of the aggregate
principal balance of the Mortgage Loans as of the Due Date in the preceding
month and (ii) the excess of the Initial Fraud Coverage over cumulative
Fraud Losses allocated to the Certificates since the Cut-Off Date.
The Fraud Coverage may be reduced upon written confirmation from the
Rating Agencies that such reduction will not adversely affect the then
current ratings assigned to the Certificates by the Rating Agencies.
Fraud Loss: A Realized Loss (or portion thereof) with respect to a
Mortgage Loan arising from any action, event or state of facts with respect
to such Mortgage Loan which, because it involved or arose out of any
dishonest, fraudulent, criminal, negligent or knowingly wrongful act, error
or omission by the Mortgagor, originator (or assignee thereof) of such
Mortgage Loan, Lender, a Servicer or the Master Servicer, would result in
an exclusion from, denial of, or defense to coverage which otherwise would
be provided by a Primary Insurance Policy previously issued with respect to
such Mortgage Loan.
Freddie Mac: The entity formerly known as the Federal Home Loan
Mortgage Corporation, or any successor thereto.
Index: The weekly average yield on United States Treasury Securities
adjusted to a constant maturity of one year, as made available by the
Federal Reserve Board, published in Federal Reserve Statistical Release
H.15(519) most recently available as of 45 days before the applicable
Adjustment Date. In the event the Index is no longer available, the Master
Servicer will select a substitute Index in accordance with the terms of the
related Mortgage Note and in compliance with applicable law.
Indirect DTC Participants: Entities such as banks, brokers, dealers or
trust companies, that clear through or maintain a custodial relationship
<PAGE> 18
with a DTC Participant, either directly or indirectly.
Insurance Proceeds: Amounts paid or payable by the insurer under any
Primary Insurance Policy or any other insurance policy (including any
replacement policy permitted under this Agreement) covering any Mortgage
Loan or Mortgaged Property, including, without limitation, any hazard
insurance policy required pursuant to Section 3.07, any title insurance
policy required pursuant to Section 2.03 and any FHA insurance policy or VA
guaranty.
Interest Distribution Amount: On any Distribution Date, for any Class
of Certificates, the amount of interest accrued on the respective Class
Principal Balance or Class Notional Amount, as applicable, in each case at
the related Certificate Interest Rate for such Class during the Prior
Period, in each case before giving effect to allocations of Realized Losses
for the Prior Period or distributions to be made on such Distribution Date,
reduced by Uncompensated Interest Shortfall, interest shortfalls related to
the Relief Act and the interest portion of Realized Losses allocated to
such Class pursuant to the definitions of "Uncompensated Interest
Shortfall", "Relief Act" and "Realized Loss", respectively.
Investment Account: The commingled account (which shall be commingled
only with investment accounts related to series of pass-through
certificates with a class of certificates which has a rating equal to the
highest of the Ratings of the Certificates) maintained by the Master
Servicer in the trust department of the Investment Depository pursuant to
Section 3.03 and which bears a designation acceptable to the Rating
Agencies.
Investment Depository: The Chase Manhattan Bank, New York, New York or
another bank or trust company designated from time to time by the Master
Servicer. The Investment Depository shall at all times be an Eligible
Institution.
Junior Subordinate Certificates: The Class B-4, Class B-5 and Class B-
6 Certificates.
Last Scheduled Distribution Date: With respect to any Class of
Certificates, the Final Maturity Date for such Class.
Lender: An institution from which the Company purchased any Mortgage
Loans pursuant to a Selling and Servicing Contract.
Liquidated Mortgage Loan: A Mortgage Loan for which the Master
Servicer or the applicable Servicer has determined in accordance with its
customary servicing practices that it has received all amounts which it
expects to recover from or on account of such Mortgage Loan, whether from
Insurance Proceeds, Liquidation Proceeds or otherwise. For purposes of this
definition, acquisition of a Mortgaged Property by the Trust Fund shall not
constitute final liquidation of the related Mortgage Loan.
Liquidation Principal: The principal portion of Liquidation Proceeds
<PAGE> 19
received with respect to each Mortgage Loan which became a Liquidated
Mortgage Loan (but not in excess of the principal balance thereof) during
the Prior Period.
Liquidation Proceeds: Amounts after deduction of amounts reimbursable
under Section 3.05(a)(i) and (ii) received and retained in connection with
the liquidation of defaulted Mortgage Loans, whether through foreclosure or
otherwise.
Loan-to-Value Ratio: The original principal amount of a Mortgage Loan
divided by the Original Value; however, references to "current Loan-to-
Value Ratio" or "Loan-to-Value Ratio as of the Cut-Off Date" in Section
2.03 shall be deemed to mean the then current Principal Balance of a
Mortgage Loan divided by the Original Value.
Lowest Class B Owner: An owner unaffiliated with the Company or the
Master Servicer of (i) a 100% interest in the Class of Class B Certificates
with the lowest priority or (ii) a 100% interest in a class of securities
representing such interest in such Class.
Margin: For each Mortgage Loan, the applicable fixed per annum
percentage rate specified in the applicable Mortgage Note and designated as
such in the Mortgage Loan Schedule.
Master Servicer: The Company, or any successor thereto appointed as
provided pursuant to Section 7.02, acting to service and administer the
Mortgage Loans pursuant to Section 3.01.
Master Servicing Fee: The fee charged by the Master Servicer for
supervising the mortgage servicing and advancing certain expenses, equal to
a per annum rate set forth for each Mortgage Loan in Exhibit D on the
outstanding Principal Balance of such Mortgage Loan, payable monthly from
the Certificate Account, the Investment Account or the Custodial Account
for P&I.
Monthly P&I Advance: An advance of funds by the Master Servicer
pursuant to Section 4.02 or a Servicer pursuant to its Selling and
Servicing Contract to cover delinquent principal and interest installments.
Monthly Payment: The scheduled payment of principal and interest on a
Mortgage Loan (including any amounts due from a Buydown Fund, if any) which
is due on the related Due Date for such Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note.
Mortgage File: The following documents or instruments with respect to
each Mortgage Loan transferred and assigned by the Company pursuant to
Section 2.01, (X) with respect to each Mortgage Loan that is not a
Cooperative Loan:
(i) The original Mortgage Note endorsed to "State Street Bank and
<PAGE> 20
Trust Company, as Custodian/Trustee, without recourse" or "State Street
Bank and Trust Company, as Trustee for the benefit of the Holders from
time to time of PNC Mortgage Securities Corp. Mortgage Pass-Through
Certificates, Series 2000-7, without recourse" and all intervening
endorsements evidencing a complete chain of endorsements from the
originator to the Trustee, or, in the event of any Destroyed Mortgage
Note, a copy or a duplicate original of the Mortgage Note, together
with an original lost note affidavit from the originator of the
related Mortgage Loan or the Company, as applicable, stating that the
original Mortgage Note was lost, misplaced or destroyed, together with
a copy of the related Mortgage Note; in the event the Mortgage Notes
are endorsed in blank as of the Closing Date, the Company shall,
within 45 days of the Closing Date, cause such Mortgage Notes to be
endorsed pursuant to the terms set forth herein; provided, that, with
respect to any Mortgage Note whereby the related Mortgaged Property is
located in California, such original Mortgage Note may be endorsed in
blank and the Company shall not be required to endorse such Mortgage Notes
pursuant to the terms otherwise set forth in this clause (i);
(ii) The Buydown Agreement, if applicable;
(iii) A Mortgage that is either
(1) the original recorded Mortgage with recording
information thereon for the jurisdiction in which the Mortgaged
Property is located and a Mortgage assignment thereof in
recordable form to "State Street Bank and Trust Company, as
Custodian/Trustee", or to "State Street Bank and Trust Company,
as Trustee for the Holders of PNC Mortgage Securities Corp.
Mortgage Pass-Through Certificates, Series 2000-7" and all
intervening assignments evidencing a complete chain of
assignment, from the originator to the name holder or the payee
endorsing the related Mortgage Note; or
(2) a copy of the Mortgage which represents a true and
correct reproduction of the original Mortgage and which has
either been certified (i) on the face thereof by the public
recording office in the appropriate jurisdiction in which the
Mortgaged Property is located, or (ii) by the originator or
Lender as a true and correct copy the original of which has been
sent for recordation and an original Mortgage assignment thereof
duly executed and acknowledged in recordable form to "State
Street Bank and Trust Company, as Custodian/Trustee" or to "State
Street Bank and Trust Company, as Trustee for the Holders of PNC
Mortgage Securities Corp. Mortgage Pass-Through Certificates,
Series 2000-7" and true and correct copies, certified by the
applicable county recorder or by the originator or Lender as
described above, of all intervening assignments evidencing a
complete chain of assignment from the originator to the name
holder or the payee endorsing the related Mortgage Note;
provided, that in the event the assignments are executed in blank
as of the Closing Date, the Company shall, within 45 days of the
Closing Date, cause such assignments to be executed pursuant to
<PAGE> 21
the terms set forth herein; provided, that, with respect to any
Mortgage whereby the related Mortgaged Property is located in
California, the Mortgage assignment may be executed and
acknowledged in blank and the Company shall not be required to
deliver such Mortgage assignment in the form otherwise set forth
in clause (iii)(1) or this clause (iii)(2);
(iv) A copy of (a) the title insurance policy, or (b) in lieu
thereof, a title insurance binder, a copy of an attorney's title opinion,
certificate or other evidence of title acceptable to the Company; and
(v) For any Mortgage Loan that has been modified or amended, the
original instrument or instruments effecting such modification or
amendment;
and (Y) with respect to each Cooperative Loan:
(i) the original Mortgage Note endorsed to "State Street Bank and
Trust Company, as Custodian/Trustee", or to "State Street Bank and Trust
Company, as Trustee for the Holders of PNC Mortgage Securities Corp.
Mortgage Pass-Through Certificates, Series 2000-7" and all intervening
endorsements evidencing a complete chain of endorsements, from the
originator to the Trustee, or, in the event of any Destroyed Mortgage
Note, a copy or a duplicate original of the Mortgage Note, together
with an original lost note affidavit from the originator of the related
Mortgage Loan or the Company, as applicable, stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy of
the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of
Proprietary Lease to the originator of the Cooperative Loan with
intervening assignments showing an unbroken chain of title from such
originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the
related Cooperative Stock pledged with respect to such Cooperative
Loan, together with an undated stock power (or other similar
instrument) executed in blank;
(iv) The original recognition agreement by the Cooperative of the
interests of the mortgagee with respect to the related Cooperative
Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any
continuation statements, filed by the originator of such Cooperative
Loan as secured party, each with evidence of recording thereof,
evidencing the interest of the originator under the Security Agreement
and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security interest
referenced in clause (vi) above showing an unbroken chain of title
<PAGE> 22
from the originator to the Trustee, each with evidence of recording
thereof, evidencing the interest of the originator under the Security
Agreement and the Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the originator in the
Security Agreement, Assignment of Proprietary Lease and the
recognition agreement referenced in clause (iv) above, showing an
unbroken chain of title from the originator to the Trustee;
(vix) An executed UCC-1 financing statement showing the Company as
debtor and the Trustee as secured party, in a form sufficient for
filing, evidencing the interest of such debtor in the Cooperative
Loans; and
(x) For any Cooperative Loan that has been modified or amended, the
original instrument or instruments effecting such modification or
amendment.
Mortgage Interest Rate: For any Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan pursuant to the terms of the
related Mortgage Note.
Mortgage Loan Schedule: The schedule, as amended from time to time, of
Mortgage Loans attached hereto as Exhibit D, which shall set forth as to
each Mortgage Loan the following, among other things:
(i) its loan number,
(ii) the address of the Mortgaged Property,
(iii) the name of the Mortgagor,
(iv) the Original Value of the property subject to the Mortgage,
(v) the Principal Balance as of the Cut-Off Date,
(vi) the Mortgage Interest Rate as of the Cut-Off Date and the
Adjustment Date, Rate Ceiling, Periodic Cap and Margin, as applicable,
borne by the Mortgage Note,
(vii) whether a Primary Insurance Policy is in effect as of the Cut-
Off Date, and, if so, whether such Primary Insurance Policy is a Special
Primary Insurance Policy,
(viii) the maturity of the Mortgage Note, and
(vix) the Servicing Fee and the Master Servicing Fee.
Mortgage Loans: With respect to each Cooperative Loan, the related
Mortgage Note, Security Agreement, Assignment of Proprietary Lease,
Cooperative Stock Certificate and Cooperative Lease, and, with respect to
each Mortgage Loan other than a Cooperative Loan, the Mortgages and the
<PAGE> 23
related Mortgage Notes, each transferred and assigned to the Trustee
pursuant to the provisions hereof as from time to time are held as part of
the Trust Fund, the Mortgage Loans so held being identified in the Mortgage
Loan Schedule.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Pool: All of the Mortgage Loans.
Mortgaged Property: With respect to any Mortgage Loan, other than a
Cooperative Loan, the real property, together with improvements thereto,
and, with respect to any Cooperative Loan, the related Cooperative Stock
and Cooperative Lease, securing the indebtedness of the Mortgagor under the
related Mortgage Loan. "Mortgaged Property" shall also refer to property
which once secured the indebtedness of a Mortgagor under the related
Mortgage Loan but which was acquired by the Trust upon foreclosure or other
liquidation of such Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Nonrecoverable Advance: With respect to any Mortgage Loan, any advance
which the Master Servicer shall determine to be a Nonrecoverable Advance
pursuant to Section 4.03 and which was, or is proposed to be, made by (i)
the Master Servicer or (ii) a Servicer pursuant to its Selling and
Servicing Contract.
Non-U.S. Person: A Person that is not a U.S. Person.
Notice Addresses: (a) In the case of the Company, 75 North Fairway
Drive, Vernon Hills, Illinois 60061, Attention: General Counsel (with a
copy directed to the attention of the Master Servicing Department) or such
other address as may hereafter be furnished to the Trustee in writing by
the Company, (b) in the case of the Trustee, at its Corporate Trust Office,
or such other address as may hereafter be furnished to the Master Servicer
in writing by the Trustee, (c) in the case of the Certificate Registrar, at
its Corporate Trust Office, or such other address as may hereafter be
furnished to the Trustee in writing by the Certificate Registrar, and (d)
in the case of S&P, 55 Water Street, 41st Floor, New York, New York 10041-
0003, Attention: Frank Raiter, or such other address as may hereafter be
furnished to the Trustee and Master Servicer in writing by S&P.
OTS: The Office of Thrift Supervision, or any successor thereto.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the President, a Vice President, or the Treasurer of the Master
Servicer and delivered to the Trustee.
100% Certificateholder: As defined in Section 9.01(d).
Opinion of Counsel: A written opinion of counsel, who shall be
reasonably acceptable to the Trustee and who may be counsel (including in-
<PAGE> 24
house counsel) for the Company or the Master Servicer.
Original Value: With respect to any Mortgage Loan other than a
Mortgage Loan originated for the purpose of refinancing an existing
mortgage debt, the lesser of (a) the Appraised Value (if any) of the
Mortgaged Property at the time the Mortgage Loan was originated or (b) the
purchase price paid for the Mortgaged Property by the Mortgagor. With
respect to a Mortgage Loan originated for the purpose of refinancing
existing mortgage debt, the Original Value shall be equal to the Appraised
Value of the Mortgaged Property.
Ownership Interest: With respect to any Residual Certificate, any
ownership or security interest in such Residual Certificate, including any
interest in a Residual Certificate as the Holder thereof and any other
interest therein whether direct or indirect, legal or beneficial, as owner
or as pledgee.
Pass-Through Entity: Any regulated investment company, real estate
investment trust, common trust fund, partnership, trust or estate, and any
organization to which Section 1381 of the Code applies.
Pass-Through Rate: For each Mortgage Loan and for any date of
determination, a per annum rate equal to the Mortgage Interest Rate for
such Mortgage Loan then in effect less the per annum percentage rates
related to each of (i) the Servicing Fee for such Mortgage Loan, (ii) the
Master Servicing Fee for such Mortgage Loan and (iii) if such Mortgage Loan
was covered by a Special Primary Insurance Policy on the Closing Date (even
if no longer so covered), the applicable Special Primary Insurance Premium.
For each Mortgage Loan, any calculation of monthly interest at such rate
shall be based upon annual interest at such rate (computed on the basis of
a 360-day year of twelve 30-day months) on the unpaid Principal Balance of
the related Mortgage Loan divided by twelve, and any calculation of
interest at such rate by reason of a Payoff shall be based upon annual
interest at such rate on the outstanding Principal Balance of the related
Mortgage Loan multiplied by a fraction, the numerator of which is the
number of days elapsed from the Due Date of the last scheduled payment of
principal and interest to, but not including, the date of such Payoff, and
the denominator of which is (a) for Payoffs received on a Due Date, 360,
and (b) for all other Payoffs, 365.
Paying Agent: Any paying agent appointed by the Trustee pursuant to
Section 8.12.
Payoff: Any Mortgagor payment (exclusive of any prepayment penalty) of
principal on a Mortgage Loan equal to the entire outstanding Principal
Balance of such Mortgage Loan, if received in advance of the last scheduled
Due Date for such Mortgage Loan and accompanied by an amount of interest
equal to accrued unpaid interest on the Mortgage Loan to the date of such
payment-in-full.
Payoff Earnings: For any Distribution Date with respect to each
Mortgage Loan on which a Payoff was received by the Master Servicer during
<PAGE> 25
the Payoff Period, the aggregate of the interest earned by the Master
Servicer from investment of each such Payoff from the date of receipt of
such Payoff until the Business Day immediately preceding the related
Distribution Date (net of investment losses).
Payoff Interest: For any Distribution Date with respect to a Mortgage
Loan for which a Payoff was received on or after the first calendar day of
the month of such Distribution Date and before the 15th calendar day of
such month, an amount of interest thereon at the applicable Pass-Through
Rate from the first day of the month of distribution through the day of
receipt thereof; to the extent (together with Payoff Earnings and the
aggregate Master Servicing Fee) not required to be distributed as
Compensating Interest on such Distribution Date, Payoff Interest shall be
payable to the Master Servicer as additional servicing compensation.
Payoff Period: With respect to the first Distribution Date, the period
from the Cut-Off Date through October 14, 2000, inclusive; and with respect
to any Distribution Date thereafter, the period from the 15th day of the
Prior Period through the 14th day of the month of such Distribution Date,
inclusive.
Percentage Interest: (a) With respect to the right of each
Certificate of a particular Class in the distributions allocated to such
Class, "Percentage Interest" shall mean the percentage undivided beneficial
ownership interest evidenced by such Certificate of such Class, which
percentage shall equal:
(i) with respect to any Certificate (other than the Residual and
Class X Certificates), its Certificate Principal Balance divided by the
applicable Class Principal Balance;
(ii) with respect to any Class X Certificate, the portion of the Class
X Notional Amount evidenced by such Certificate divided by the Class X
Notional Amount; and
(iii) with respect to any Residual Certificate, the percentage set
forth on the face of such Certificate.
(b) With respect to the rights of each Certificate in connection with
Sections 5.09, 7.01, 8.01(c), 8.02, 8.07, 10.01 and 10.03, "Percentage
Interest" shall mean the percentage undivided beneficial interest evidenced
by such Certificate in REMIC I, which for purposes of such rights only
shall equal:
(i) with respect to any Certificate (other than the Class X and
Residual Certificates), the product of (x) ninety-nine percent (99%) and
(y) the percentage calculated by dividing its Certificate Principal
Balance by the Aggregate Certificate Principal Balance of the Certifi-
cates; provided, however, that the percentage in clause (x) above shall be
increased by one percent (1%) upon the retirement of the Class X Certi-
ficates;
(ii) with respect to any Class X Certificate, one percent (1%) of such
<PAGE> 26
Certificate's Percentage Interest as calculated by paragraph (a)(ii)
of this definition; and
(iii) with respect to any Residual Certificate, zero.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate for each Adjustment Date specified
in the applicable Mortgage Note and designated as such in the Mortgage Loan
Schedule.
Permitted Transferee: With respect to the holding or ownership of any
Residual Certificate, any Person other than (i) the United States, a State
or any 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 the taxes imposed by Chapter 1 of the
Code (unless such organization is subject to the tax imposed by Section 511
of the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Code Section 1381(a)(2)(C), (v) any
"electing large partnership" as defined in Section 775(a) of the Code, (vi)
any Person from whom the Trustee has not received an affidavit to the
effect that it is not a "disqualified organization" within the meaning of
Section 860E(e)(5) of the Code, and (vii) any other Person so designated by
the Company based upon an Opinion of Counsel that the transfer of an
Ownership Interest in a Residual Certificate to such Person may cause REMIC
I to fail to qualify as a REMIC at any time that the 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 shall 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, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Prepaid Monthly Payment: Any Monthly Payment received prior to its
scheduled Due Date, which is intended to be applied to a Mortgage Loan on
its scheduled Due Date and held in the related Custodial Account for P&I
until the Withdrawal Date following its scheduled Due Date.
Primary Insurance Policy: A policy of mortgage guaranty insurance, if
any, on an individual Mortgage Loan or on pools of mortgage loans that
include an individual Mortgage Loan, providing coverage as required by
Section 2.03(xi) (including any Special Primary Insurance Policy).
Principal Balance: Except as used in Sections 2.02, 3.09 and 9.01 and
for purposes of the definition of Purchase Price, at the time of any
<PAGE> 27
determination, the principal balance of a Mortgage Loan remaining to be
paid at the close of business on the Cut-Off Date, after application of all
scheduled principal payments due on or before the Cut-Off Date, whether or
not received, reduced by all amounts distributed or (except when such
determination occurs earlier in the month than the Distribution Date) to be
distributed to Certificateholders through the Distribution Date in the
month of determination that are reported as allocable to principal of such
Mortgage Loan.
For purposes of the definition of Purchase Price and as used in
Sections 2.02, 3.09 and 9.01, at the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid at the close of
business on the Cut-Off Date, after deduction of all scheduled principal
payments due on or before the Cut-Off Date, whether or not received,
reduced by all amounts distributed or to be distributed to
Certificateholders through the Distribution Date in the month of
determination that are reported as allocable to principal of such Mortgage
Loan.
In the case of a Substitute Mortgage Loan, "Principal Balance" shall
mean, at the time of any determination, the principal balance of such
Substitute Mortgage Loan transferred to the Trust Fund, on the date of
substitution, reduced by all amounts distributed or to be distributed to
Certificateholders through the Distribution Date in the month of
determination that are reported as allocable to principal of such
Substitute Mortgage Loan.
The Principal Balance of a Mortgage Loan (including a Substitute
Mortgage Loan) shall not be adjusted solely by reason of any bankruptcy or
similar proceeding or any moratorium or similar waiver or grace period.
Whenever a Realized Loss has been incurred with respect to a Mortgage Loan
during a calendar month, the Principal Balance of such Mortgage Loan shall
be reduced by the amount of such Realized Loss as of the Distribution Date
next following the end of such calendar month after giving effect to the
allocation of Realized Losses and distributions of principal to the
Certificates.
Principal Payment: Any payment of principal on a Mortgage Loan other
than a Principal Prepayment.
Principal Payment Amount: For any Distribution Date, the sum with
respect to the Mortgage Loans of (i) the scheduled principal payments on
the Mortgage Loans due on the related Due Date, (ii) the principal portion
of proceeds received with respect to any Mortgage Loan which was purchased
or repurchased pursuant to a Purchase Obligation or as permitted by this
Agreement during the Prior Period and (iii) any other unscheduled payments
of principal which were received with respect to any Mortgage Loan during
the Prior Period, other than Payoffs, Curtailments and Liquidation
Principal.
Principal Prepayment: Any payment of principal on a Mortgage Loan
which constitutes a Payoff or a Curtailment.
<PAGE> 28
Principal Prepayment Amount: For any Distribution Date, the sum with
respect to the Mortgage Loans of (i) Curtailments received during the Prior
Period and (ii) Payoffs received during the Payoff Period.
Prior Period: The calendar month immediately preceding any
Distribution Date.
Pro Rata Allocation: With respect to Realized Losses on Mortgage
Loans, the allocation of the principal portion of such losses to all
Classes of Certificates pro rata according to their respective Class
Principal Balances in reduction thereof, and the allocation of the interest
portion of such losses to all Classes of Certificates pro rata according to
the amount of interest accrued but unpaid on each such Class, in reduction
thereof, and then to such Classes (other than the Class X Certificates) pro
rata according to their respective Class Principal Balances in reduction
thereof.
Prospectus: The Prospectus, dated July 26, 2000, and the Prospectus
Supplement, dated September 27, 2000, of the Company.
Purchase Obligation: An obligation of the Company to repurchase
Mortgage Loans under the circumstances and in the manner provided in
Section 2.02 or Section 2.03.
Purchase Price: With respect to any Mortgage Loan to be purchased
pursuant to a Purchase Obligation or pursuant to Section 3.01, an amount
equal to the sum of (i) the Principal Balance thereof, (ii) unpaid accrued
interest thereon, if any, during the calendar month in which the date of
repurchase occurs to the last day of such month at a rate equal to the
applicable Pass-Through Rate and (iii) (in the case of a purchase pursuant
to the fourth sentence of the third paragraph of Section 3.01 only) the
amount of any related unreimbursed advances by the Master Servicer;
provided, however, that no Mortgage Loan shall be purchased or required to
be purchased pursuant to Section 2.03, or more than two years after the
Closing Date under Section 2.02, unless (a) the Mortgage Loan to be
purchased is in default, or default is in the judgment of the Company
reasonably imminent, or (b) the Company, at its expense, delivers to the
Trustee an Opinion of Counsel to the effect that the purchase of such
Mortgage Loan will not give rise to a tax on a prohibited transaction, as
defined in Section 860F(a) of the Code.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the states in which the Mortgaged
Properties are located if such qualification is necessary to issue the
applicable insurance policy or bond, duly authorized and licensed in such
states to transact the applicable insurance business and to write the
insurance provided by the Primary Insurance Policies and approved as an
insurer by Freddie Mac or Fannie Mae and the Master Servicer. A Qualified
Insurer must have the rating required by the Rating Agencies.
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted
under the related Mortgage Note.
<PAGE> 29
Rating Agencies: Initially, S&P, and thereafter, each nationally
recognized statistical rating organization that has rated the Certificates
at the request of the Company, or their respective successors in interest.
Ratings: As of any date of determination, the ratings, if any, of the
Certificates as assigned by the Rating Agencies.
Realized Loss: For any Distribution Date, with respect to any Mortgage
Loan which became a Liquidated Mortgage Loan during the related Prior
Period, the sum of (i) the principal balance of such Mortgage Loan
remaining outstanding and the principal portion of Nonrecoverable Advances
actually reimbursed with respect to such Mortgage Loan (the principal
portion of such Realized Loss), and (ii) the accrued interest on such
Mortgage Loan remaining unpaid and the interest portion of Nonrecoverable
Advances actually reimbursed with respect to such Mortgage Loan (the
interest portion of such Realized Loss). For any Distribution Date, with
respect to any Mortgage Loan which is not a Liquidated Mortgage Loan, the
amount of the Bankruptcy Loss incurred with respect to such Mortgage Loan
as of the related Due Date.
Except for Special Hazard Losses in excess of the Special Hazard
Coverage, Fraud Losses in excess of the Fraud Coverage and Bankruptcy
Losses in excess of the Bankruptcy Coverage, Realized Losses shall be
allocated among the Certificates (i) for Realized Losses allocable to
principal (a) first, to the Class B-6 Certificates, until the Class B-6
Principal Balance has been reduced to zero, (b) second, to the Class B-5
Certificates, until the Class B-5 Principal Balance has been reduced to
zero, (c) third, to the Class B-4 Certificates, until the Class B-4
Principal Balance has been reduced to zero, (d) fourth, to the Class B-3
Certificates, until the Class B-3 Principal Balance has been reduced to
zero, (e) fifth, to the Class B-2 Certificates, until the Class B-2
Principal Balance has been reduced to zero, (f) sixth, to the Class B-1
Certificates, until the Class B-1 Principal Balance has been reduced to
zero, and (g) seventh, to the Class A-1 Certificates, in reduction of the
Class Principal Balance thereof; and (ii) for Realized Losses allocable to
interest (a) first, to the Class B-6 Certificates, in reduction of accrued
but unpaid interest thereon and then in reduction of the Class B-6
Principal Balance, (b) second, to the Class B-5 Certificates, in reduction
of accrued but unpaid interest thereon and then in reduction of the Class B-
5 Principal Balance, (c) third, to the Class B-4 Certificates, in reduction
of accrued but unpaid interest thereon and then in reduction of the Class B-
4 Principal Balance, (d) fourth, to the Class B-3 Certificates, in
reduction of accrued but unpaid interest thereon and then in reduction of
the Class B-3 Principal Balance, (e) fifth, to the Class B-2 Certificates,
in reduction of accrued but unpaid interest thereon and then in reduction
of the Class B-2 Principal Balance, (f) sixth, to the Class B-1
Certificates, in reduction of accrued but unpaid interest thereon and then
in reduction of the Class B-1 Principal Balance, and (g) seventh, to the
Class A-1 and Class X Certificates, pro rata according to accrued but
unpaid interest on such Classes, in reduction thereof, and then to the
Class A-1 Certificates, in reduction of the Class Principal Balance
thereof.
<PAGE> 30
Special Hazard Losses in excess of the Special Hazard Coverage, Fraud
Losses in excess of the Fraud Coverage and Bankruptcy Losses in excess of
the Bankruptcy Coverage shall be allocated among the Certificates by Pro
Rata Allocation.
On each Distribution Date, after giving effect to the principal
distributions and allocations of losses as provided in this Agreement
(without regard to this paragraph), if the aggregate Class Principal
Balance of all outstanding Certificates exceeds the aggregate principal
balance of the Mortgage Loans remaining to be paid at the close of business
on the Cut-Off Date, after deduction of (i) all principal payments due on
or before the Cut-Off Date in respect of each Mortgage Loan whether or not
paid and (ii) all amounts of principal in respect of each Mortgage Loan
that have been received or advanced and included in the Available
Distribution Amount, and all losses in respect of each Mortgage Loan that
have been allocated to the Certificates on such Distribution Date or prior
Distribution Dates, then such excess will be deemed a principal loss and
will be allocated to the most junior Class of Class B Certificates, in
reduction of the Class Principal Balance thereof.
Record Date: The last Business Day of the month immediately preceding
the month of the related Distribution Date.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended. Interest shortfalls related to the Relief Act shall be allocated
in the same manner as Realized Losses attributable to interest are
allocated.
REMIC: A real estate mortgage investment conduit, as such term is
defined in the Code.
REMIC Provisions: Sections 860A through 860G of the Code, related Code
provisions and regulations promulgated thereunder, as the foregoing may be
in effect from time to time.
REMIC I: The segregated pool of assets consisting of the REMIC I Trust
Fund conveyed in trust to the Trustee for the benefit of the
Certificateholders pursuant to Section 2.01, with respect to which a REMIC
election is to be made.
REMIC I Regular Interests: The Classes of interests in the REMIC I
Trust Fund designated as "regular interests" in the table titled "REMIC I
Interests" in the Preliminary Statement hereto.
REMIC I Trust Fund: All of the assets in the Trust Fund.
Residual Certificates: The Class R Certificates, which are being
issued in a single class. The Class R Certificates are hereby designated
the sole Class of "residual interests" in REMIC I for purposes of Section
860G(a)(2) of the Code.
Residual Distribution Amount: For any Distribution Date, any portion
<PAGE> 31
of the Available Distribution Amount remaining after all distributions of
the Available Distribution Amount pursuant to the definition of
"Distribution Amount" (other than the distribution pursuant to the last
subparagraph thereof).
Upon termination of the obligations created by this Agreement and the
REMIC I Trust Fund created hereby (except any termination by a 100%
Certificateholder pursuant to Section 9.01), the amounts which remain on
deposit in the Certificate Account after payment to the Holders of the
REMIC I Regular Interests of the amounts set forth in Section 9.01 of this
Agreement, and subject to the conditions set forth therein, shall be
distributed to the Class R Certificates in accordance with the preceding
sentence of this definition as if the date of such distribution were a
Distribution Date.
Responsible Officer: When used with respect to the Trustee, any
officer assigned to and working in its Corporate Trust Department or
similar group and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge
of and familiarity with the particular subject.
S&P: Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., provided that at any time it be a Rating Agency.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: With respect to a Cooperative Loan, the agreement
or mortgage creating a security interest in favor of the originator of the
Cooperative Loan in the related Cooperative Stock.
Selling and Servicing Contract: (a) The contract (including the PNC
Mortgage Securities Corp. Selling Guide and PNC Mortgage Securities Corp.
Servicing Guide to the extent incorporated by reference therein) between
the Company and a Person relating to the sale of the Mortgage Loans to the
Company and the servicing of such Mortgage Loans for the benefit of the
Certificateholders, which contract is substantially in the form of Exhibit
E hereto, as such contract may be amended or modified from time to time;
provided, however, that any such amendment or modification shall not
materially adversely affect the interests and rights of Certificateholders
and (b) any other similar contract providing substantially similar rights
and benefits as those provided by the forms of contract attached as Exhibit
E hereto.
Senior Certificates: The Class A-1, Class X and Residual Certificates.
Senior Liquidation Amount: For any Distribution Date, the aggregate,
for each Mortgage Loan which became a Liquidated Mortgage Loan during the
Prior Period, of the lesser of: (i) the Senior Percentage of the Principal
Balance of such Mortgage Loan and (ii) the Senior Prepayment Percentage of
the Liquidation Principal with respect to such Mortgage Loan.
Senior Percentage: For any Distribution Date, the aggregate Class
<PAGE> 32
Principal Balance of the Class A-1 and Residual Certificates divided by the
aggregate Class Principal Balance of the Class A-1, Class B and Residual
Certificates, in each case immediately after any allocations of Realized
Losses but before any distributions on such Distribution Date.
Senior Prepayment Percentage: Subject to the immediately succeeding
paragraph, (A) for any Distribution Date prior to the tenth anniversary of
the first Distribution Date, the Senior Prepayment Percentage shall equal
100% and (B) for any Distribution Date on or after the tenth anniversary of
the first Distribution Date the Senior Prepayment Percentage shall be
calculated as follows: (1) for any such Distribution Date on or after the
tenth anniversary but before the eleventh anniversary of the first
Distribution Date, the Senior Percentage for such Distribution Date plus
70% of the Subordinate Percentage for such Distribution Date; (2) for any
such Distribution Date on or after the eleventh anniversary but before the
twelfth anniversary of the first Distribution Date, the Senior Percentage
for such Distribution Date plus 60% of the Subordinate Percentage for such
Distribution Date; (3) for any such Distribution Date on or after the
twelfth anniversary but before the thirteenth anniversary of the first
Distribution Date, the Senior Percentage for such Distribution Date plus
40% of the Subordinate Percentage for such Distribution Date; (4) for any
such Distribution Date on or after the thirteenth anniversary but before
the fourteenth anniversary of the first Distribution Date, the Senior
Percentage for such Distribution Date plus 20% of the Subordinate
Percentage for such Distribution Date; and (5) for any such Distribution
Date thereafter, the Senior Percentage for such Distribution Date,
provided, however, that (x) for any Distribution Date prior to the
Distribution Date in October 2003, if the Subordinate Percentage for such
Distribution Date is equal to or greater than twice the Subordinate
Percentage as of the Closing Date, then the Senior Prepayment Percentage
for such Distribution Date shall equal the Senior Percentage for such
Distribution Date plus 50% of the Subordinate Percentage for such
Distribution Date and (y) for any Distribution Date on or after the
Distribution Date in October 2003, if the Subordinate Percentage for such
Distribution Date is equal to or greater than twice the Subordinate
Percentage as of the Closing Date, then the Senior Prepayment Percentage
for such Distribution Date shall equal the Senior Percentage for such
Distribution Date.
Notwithstanding the immediately preceding paragraph, for any
Distribution Date, the Senior Prepayment Percentage shall equal 100% if
either (A) the Senior Percentage for such Distribution Date is greater than
the Senior Percentage as of the Closing Date or (B):
(a) the mean aggregate Principal Balance as of the Distribution Date
in each of the immediately preceding six calendar months of the
Mortgage Loans which were 60 or more days delinquent as of such
date (including loans in foreclosure and mortgaged property held
by REMIC I) is greater than 50% of the Subordinate Component
Balance as of the current Distribution Date, or
(b) cumulative Realized Losses on the Mortgage Loans allocated to the
<PAGE> 33
Class B Certificates, as a percentage of the Subordinate
Component Balance as of the Closing Date, are greater than, for
any Distribution Date (1) before the eleventh anniversary of the
first Distribution Date, 30%, (2) on or after the eleventh
anniversary but before the twelfth anniversary of the first
Distribution Date, 35%, (3) on or after the twelfth anniversary
but before the thirteenth anniversary of the first Distribution
Date, 40%, (4) on or after the thirteenth anniversary but before
the fourteenth anniversary of the first Distribution Date, 45%,
and (5) on or after the fourteenth anniversary of the first
Distribution Date, 50%.
If on any Distribution Date the allocation to the Certificates of
Principal Prepayments in the percentage required would reduce the aggregate
Class Principal Balance of such Certificates below zero, the Senior
Prepayment Percentage for such Distribution Date shall be limited to the
percentage necessary to reduce the aggregate Class Principal Balance of
such Certificates to zero.
Senior Principal Distribution Amount: For any Distribution Date, an
amount equal to the sum of (a) the Senior Percentage of the Principal
Payment Amount, (b) the Senior Prepayment Percentage of the Principal
Prepayment Amount and (c) the Senior Liquidation Amount, reduced by the
amount, if any, distributed to the Class R Certificates on such
Distribution Date pursuant to clause (iii) of the definition of
"Distribution Amount".
Senior Subordinate Certificates: The Subordinate Certificates other
than the Junior Subordinate Certificates.
Servicer: A mortgage loan servicing institution to which the Master
Servicer has assigned servicing duties with respect to any Mortgage Loan
under a Selling and Servicing Contract; provided, however, the Master
Servicer may designate itself or one or more other mortgage loan servicing
institutions as Servicer upon termination of an initial Servicer's
servicing duties.
Servicing Fee: For each Mortgage Loan, the fee paid to the Servicer
thereof to perform primary servicing functions for the Master Servicer with
respect to such Mortgage Loan, equal to the per annum rate set forth for
each Mortgage Loan in the Mortgage Loan Schedule on the outstanding
Principal Balance of such Mortgage Loan. In addition, any prepayment
penalty received on a Mortgage Loan will be paid as additional servicing
compensation to the Master Servicer or the related Servicer.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans or
the Certificates, as applicable, whose name and specimen signature appear
on a list of servicing officers furnished to the Trustee by the Master
Servicer, as such list may from time to time be amended.
Special Hazard Coverage: The Special Hazard Coverage on the most
<PAGE> 34
recent anniversary of the Cut-Off Date (calculated in accordance with the
second sentence of this paragraph) or, if prior to the first such
anniversary, $2,157,527, in each case reduced by Special Hazard Losses
allocated to the Certificates since the most recent anniversary of the Cut-
Off Date (or, if prior to the first such anniversary, since the Cut-Off
Date). On each anniversary of the Cut-Off Date, the Special Hazard
Coverage shall be reduced, but not increased, to an amount equal to the
lesser of (1) the greatest of (a) the aggregate principal balance of the
Mortgage Loans located in the single California zip code area containing
the largest aggregate principal balance of Mortgage Loans, (b) 1.0% of the
aggregate unpaid principal balance of the Mortgage Loans and (c) twice the
unpaid principal balance of the largest single Mortgage Loan, in each case
calculated as of the Due Date in the immediately preceding month, and (2)
$2,157,527 as reduced by the Special Hazard Losses allocated to the
Certificates since the Cut-Off Date.
The Special Hazard Coverage may be reduced upon written confirmation
from the Rating Agencies that such reduction will not adversely affect the
then current ratings assigned to the Certificates by the Rating Agencies.
Special Hazard Loss: A Realized Loss (or portion thereof) with respect
to a Mortgage Loan arising from any direct physical loss or damage to a
Mortgaged Property not covered by a standard hazard maintenance policy with
extended coverage which is caused by or results from any cause except: (i)
fire, lightning, windstorm, hail, explosion, riot, riot attending a strike,
civil commotion, vandalism, aircraft, vehicles, smoke, sprinkler leakage,
except to the extent of that portion of the loss which was uninsured
because of the application of a co-insurance clause of any insurance policy
covering these perils; (ii) normal wear and tear, gradual deterioration,
inherent vice or inadequate maintenance of all or part thereof; (iii)
errors in design, faulty workmanship or materials, unless the collapse of
the property or a part thereof ensues and then only for the ensuing loss;
(iv) nuclear reaction or nuclear radiation or radioactive 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 this definition of
Special Hazard Loss; (v) hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against an actual,
impending or expected attack (a) by any government of sovereign power (de
jure or de facto), or by an authority maintaining or using military, naval
or air forces, (b) by military, naval or air forces, or (c) by an agent of
any such government, power, authority or forces; (vi) any weapon of war
employing atomic fission or radioactive force whether in time of peace or
war; (vii) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such occurrence; or (viii) seizure or destruction under quarantine
or customs regulations, or confiscation by order of any government or
public authority.
Special Primary Insurance Policy: Any Primary Insurance Policy
covering a Mortgage Loan the premium of which is payable by the Trustee
pursuant to Section 4.01(a), if so identified in the Mortgage Loan
<PAGE> 35
Schedule.
Special Primary Insurance Premium: With respect to any Special Primary
Insurance Policy, the monthly premium payable thereunder.
Subordinate Certificates: The Class B Certificates.
Subordinate Component Balance: For any date of determination, the then
outstanding aggregate Principal Balance of the Mortgage Loans minus the
then outstanding aggregate Class Principal Balance of the Class A-1 and
Residual Certificates.
Subordinate Liquidation Amount: For any Distribution Date, the excess,
if any, of the aggregate of Liquidation Principal for all Mortgage Loans
which became Liquidated Mortgage Loans during the Prior Period, over the
Senior Liquidation Amount for such Distribution Date.
Subordinate Percentage: For any Distribution Date, the excess of 100%
over the Senior Percentage for such date.
Subordinate Prepayment Percentage: For any Distribution Date, the
excess of 100% over the Senior Prepayment Percentage for such Distribution
Date; provided, however, that if the aggregate Class Principal Balance of
the Class A-1 and Residual Certificates has been reduced to zero, then the
Subordinate Prepayment Percentage shall equal 100%.
Subordinate Principal Distribution Amount: For any Distribution Date,
the sum of (i) the Subordinate Percentage of the Principal Payment Amount,
(ii) the Subordinate Principal Prepayments Distribution Amount and (iii)
the Subordinate Liquidation Amount.
On any Distribution Date, the Subordinate Principal Distribution
Amount shall be allocated pro rata, by Class Principal Balance, among the
Classes of Class B Certificates and paid in the order of distribution to
such Classes pursuant to the definition of "Distribution Amount" except as
otherwise stated in such definition. Notwithstanding the foregoing, on any
Distribution Date prior to distributions on such date, if the Subordination
Level for any Class of Class B Certificates is less than such Subordination
Level as of the Closing Date, the pro rata portion of the Subordinate
Principal Prepayments Distribution Amount otherwise allocable to the Class
or Classes of Class B Certificates junior to such Class will be distributed
to the most senior Class of Class B Certificates for which the
Subordination Level is less than the Subordination Level as of the Closing
Date, and to the Class or Classes of Class B Certificates senior thereto,
pro rata according to the Class Principal Balances of such Classes. For
purposes of this definition and the definition of "Subordination Level,"
the relative seniority, from highest to lowest, of the Class B Certificates
shall be as follows: Class B-1, Class B-2, Class B-3, Class B-4, Class B-5
and Class B-6.
Subordinate Principal Prepayments Distribution Amount: For any
Distribution Date, the Subordinate Prepayment Percentage of the Principal
<PAGE> 36
Prepayment Amount.
Subordination Level: On any specified date, with respect to any Class
of Class B Certificates, the percentage obtained by dividing the aggregate
Class Principal Balance of the Classes of Class B Certificates which are
subordinate in right of payment to such Class by the aggregate Class
Principal Balance of the Certificates as of such date prior to giving
effect to distributions of principal or interest or allocations of Realized
Losses on the Mortgage Loans on such date.
Substitute Mortgage Loan: A Mortgage Loan which is substituted for
another Mortgage Loan pursuant to and in accordance with the provisions of
Section 2.02.
Tax Matters Person: A Holder of a Class R Certificate with a
Percentage Interest of at least 0.01% or any Permitted Transferee of such
Class R Certificateholder designated as succeeding to the position of Tax
Matters Person in a notice to the Trustee signed by authorized
representatives of the transferor and transferee of such Class R
Certificate. The Company is hereby appointed to act as the Tax Matters
Person for REMIC I so long as it holds a Class R Certificate with a
Percentage Interest of at least 0.01%. The Company is hereby appointed to
act as agent for the Tax Matters Person for REMIC I, to perform the
functions of the Tax Matters Person as provided herein, so long as the
Company is the Master Servicer hereunder, in the event that the Company
ceases to hold a Class R Certificate with the required Percentage Interest.
In the event that the Company ceases to be the Master Servicer hereunder,
the successor Master Servicer is hereby appointed to act as agent for the
Tax Matters Person for REMIC I, to perform the functions of such Tax
Matters Person as provided herein. If the Tax Matters Person becomes a
Disqualified Organization, the last preceding Holder, that is not a
Disqualified Organization, of the Class R Certificate held by the
Disqualified Organization shall be Tax Matters Person pursuant to and as
permitted by Section 5.01(c). If any Person is appointed as tax matters
person by the Internal Revenue Service pursuant to the Code, such Person
shall be Tax Matters Person.
Termination Date: The date upon which final payment of the
Certificates will be made pursuant to the procedures set forth in Section
9.01(b).
Termination Payment: The final payment delivered to the
Certificateholders on the Termination Date pursuant to the procedures set
forth in Section 9.01(b).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Residual Certificate.
Transferee Affidavit and Agreement: An affidavit and agreement in the
<PAGE> 37
form attached hereto as Exhibit J.
Trust: The pool of assets consisting of the Trust Fund conveyed
pursuant to Section 2.01 of this Agreement.
Trust Fund: The corpus of the trust created pursuant to Section 2.01
of this Agreement. The Trust Fund consists of (i) the Mortgage Loans and
all rights pertaining thereto; (ii) such assets as from time to time may be
held by the Trustee (or its duly appointed agent) in the Certificate
Account or the Investment Account (except amounts representing the Master
Servicing Fee or the Servicing Fee); (iii) such assets as from time to time
may be held by Servicers in a Custodial Account for P&I or Custodial
Account for Reserves or a Buydown Fund Account related to the Mortgage
Loans (except amounts representing the Master Servicing Fee or the
Servicing Fee); (iv) property which secured a Mortgage Loan and which has
been acquired by foreclosure or deed in lieu of foreclosure or, in the case
of a Cooperative Loan, a similar form of conversion, after the Cut-Off
Date; and (v) amounts paid or payable by the insurer under any FHA
insurance policy or any Primary Insurance Policy and proceeds of any VA
guaranty and any other insurance policy related to any Mortgage Loan or the
Mortgage Pool.
Trustee: State Street Bank and Trust Company, or its successor-in-
interest as provided in Section 8.09, or any successor trustee appointed as
herein provided.
Uncollected Interest: With respect to any Distribution Date for any
Mortgage Loan on which a Payoff was made by a Mortgagor during the related
Payoff Period, except for Payoffs received during the period from the first
through the 14th day of the month of such Distribution Date, an amount
equal to one month's interest at the applicable Pass-Through Rate on such
Mortgage Loan less the amount of interest actually paid by the Mortgagor
with respect to such Payoff.
Uncompensated Interest Shortfall: For any Distribution Date, the sum
of (i) aggregate Curtailment Shortfall with respect to the Mortgage Loans
and (ii) the excess, if any, of (a) aggregate Uncollected Interest with
respect to the Mortgage Loans over (b) Compensating Interest with respect
to the Mortgage Loans.
Uncompensated Interest Shortfall shall be allocated to the Classes of
Certificates pro rata according to the amount of the Interest Distribution
Amount to which each such Class would otherwise be entitled in reduction
thereof.
Underwriting Standards: The underwriting standards of the Company,
Downey Savings and Loan Association, F.A., Roslyn National Mortgage
Company, North American Mortgage Company, Countrywide Home Loans, Inc.,
Provident Savings Bank, FSB, PNC Mortgage Corp. of America, Banco Popular
North America, Old Kent Mortgage Company, Taylor, Bean & Whitaker and The
Cal Bay Mortgage Group.
<PAGE> 38
Uninsured Cause: Any cause of damage to a Mortgaged Property, the cost
of the complete restoration of which is not fully reimbursable under the
hazard insurance policies required to be maintained pursuant to Section
3.07.
U.S. Person: 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 that is subject to U.S. federal income tax
regardless of the source of its income.
VA: The Department of Veterans Affairs, formerly known as the Veterans
Administration, or any successor thereto.
Withdrawal Date: Any day during the period commencing on the 18th day
of the month of the related Distribution Date (or if such day is not a
Business Day, the immediately preceding Business Day) and ending on the
last Business Day prior to the 21st day of the month of such Distribution
Date. The "related Due Date" for any Withdrawal Date is the Due Date
immediately preceding the related Distribution Date.
ARTICLE II
Conveyance of the Trust Fund; REMIC Election and Designations;
Original Issuance of Certificates
Section 2.01. Conveyance of the Trust Fund; REMIC Election and
Designations. The Trust of which the Trustee is the trustee is hereby
created under the laws of the State of New York for the benefit of the
Holders of the Certificates. The purpose of the Trust is to hold the Trust
Fund and provide for the issuance, execution and delivery of the
Certificates. The assets of the Trust shall consist of the Trust Fund.
The Trust shall be irrevocable.
The assets of the Trust shall remain in the custody of the Trustee, on
behalf of the Trust, and shall be kept in the Trust except as otherwise
expressly set forth herein. Moneys to the credit of the Trust shall be
held by the Trustee and invested as provided herein. All assets received
and held in the Trust will not be subject to any right, charge, security
interest, lien or claim of any kind in favor of State Street Bank and Trust
Company in its own right, or any Person claiming through it. The Trustee,
on behalf of the Trust, shall not have the power or authority to transfer,
assign, hypothecate, pledge or otherwise dispose of any of the assets of
the Trust to any Person, except as permitted herein. No creditor of a
beneficiary of the Trust, of the Trustee, of the Master Servicer or of the
Company shall have any right to obtain possession of, or otherwise exercise
legal or equitable remedies with respect to, the property of the Trust,
except in accordance with the terms of this Agreement.
Concurrently with the execution and delivery hereof, the Company does
hereby irrevocably sell, transfer, assign, set over and otherwise convey to
the Trustee, in trust for the benefit of the Holders of the Certificates,
<PAGE> 39
without recourse, all the Company's right, title and interest in and to the
Trust Fund, including but not limited to all scheduled payments of
principal and interest due after the Cut-Off Date and received by the
Company with respect to the Mortgage Loans at any time, and all Principal
Prepayments received by the Company after the Cut-Off Date with respect to
the Mortgage Loans (such transfer and assignment by the Company to be
referred to herein as the "Conveyance", and the assets so transferred and
assigned to be referred to herein as the "Conveyed Assets"). The Trustee
hereby accepts the Trust created hereby and accepts delivery of the Trust
Fund on behalf of the Trust and acknowledges that it holds the Mortgage
Loans for the benefit of the Holders of the Certificates issued pursuant to
this Agreement.
It is the express intent of the parties hereto that the Conveyance of
the Conveyed Assets to the Trustee by the Company as provided in this
Section 2.01 be, and be construed as, an absolute sale of the Conveyed
Assets. It is, further, not the intention of the parties that such
Conveyance be deemed the grant of a security interest in the Conveyed
Assets by the Company to the Trustee to secure a debt or other obligation
of the Company. However, in the event that, notwithstanding the intent of
the parties, the Conveyed Assets are held to be the property of the
Company, or if for any other reason this Agreement is held or deemed to
create a security interest in the Conveyed Assets, then
(a) this Agreement shall be deemed to be a security agreement;
(b) the Conveyance provided for in this Section 2.01 shall be deemed
to be a grant by the Company to the Trustee, to secure all of the Company's
obligations hereunder, of a security interest in all of the Company's
right, title, and interest, whether now owned or hereafter acquired, in and
to:
(I) (i) the Mortgage Loans identified on the Mortgage Loan
Schedule, including the related Mortgage Notes, Mortgages, Cooperative
Stock Certificates, and Cooperative Leases, all Substitute Mortgage
Loans and all distributions with respect to the Mortgage Loans and
Substitute Mortgage Loans payable on and after the Cut-Off Date; (ii)
the Certificate Account, the Investment Account and all money or other
property held therein, and the Custodial Accounts for P&I and the
Custodial Accounts for Reserves (to the extent of the amounts on
deposit or other property therein attributable to the Mortgage Loans);
and (iii) amounts paid or payable by the insurer under any FHA
insurance policy or any Primary Insurance Policy and proceeds of any
VA guaranty and any other insurance policy related to any Mortgage
Loan or the Mortgage Pool;
(II) All rights arising from or by virtue of the disposition of,
or collections with respect to, or insurance proceeds payable with
respect to, or claims against other persons with respect to, all or
any part of the collateral described in (I) above (including any
accrued discount realized on liquidation of any investment purchased
at a discount);
<PAGE> 40
(III) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
foregoing; and
(IV) All proceeds of the foregoing;
(c) the possession by the Trustee of any of the foregoing property
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and
9-115 thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, securities intermediaries, bailees or
agents of, or persons holding for, the Trustee, as applicable for the
purpose of perfecting such security interest under applicable law.
The Company and the Trustee at the direction of the Company shall, to
the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a
security interest in the Conveyed Assets, such security interest would be
deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement. In connection herewith, the Trustee shall have all of the rights
and remedies of a secured party and creditor under the Uniform Commercial
Code as in force in the relevant jurisdiction.
In connection with the sale, transfer and assignment referred to in
the third paragraph of this Section 2.01, the Company, concurrently with
the execution and delivery hereof, does deliver to, and deposit with, or
cause to be delivered to and deposited with, the Trustee or Custodian the
Mortgage Files, which shall on original issuance thereof and at all times
be registered in the name of the Trustee.
Concurrently with the execution and delivery hereof, the Company shall
cause assignments of the Mortgage Loans to the Trustee to be recorded or
filed, except in states where, in the opinion of counsel admitted to
practice in such state acceptable to the Company, the Trustee and the
Rating Agencies submitted in lieu of such recording or filing, such
recording or filing is not required to protect the Trustee's interest in
such Mortgage Loans against creditors of, or against sale, further
assignments, satisfaction or discharge by the Lender, a Servicer, the
Company or the Master Servicer, and the Company shall cause to be filed the
Form UCC-3 assignment and Form UCC-1 financing statement referred to in
clause (Y)(vii) and (ix), respectively, of the definition of "Mortgage
File." Notwithstanding the immediately preceding sentence, in the event
that any Mortgage Loan is delivered to the Trustee by a custodian which is
<PAGE> 41
not an affiliate of the Company and the related Mortgage File does not
contain an assignment of the Mortgage as required by clause (X)(iii)(1) or
clause (X)(iii)(2) of the definition of "Mortgage File," the Company shall
cause such custodian promptly to deliver such an assignment, but in no
event later than 30 days after the Closing Date. In connection with its
servicing of Cooperative Loans, the Master Servicer will use its best
efforts to file timely continuation statements, if necessary, with regard
to each financing statement and assignment relating to Cooperative Loans.
In instances where the original recorded Mortgage or any intervening
assignment thereof (recorded or in recordable form) relating to a Mortgage
Loan is not included in the Mortgage File delivered to the Trustee prior to
or concurrently with the execution and delivery hereof (due to a delay on
the part of the recording office), the Company shall deliver to the Trustee
a fully legible reproduction of the original Mortgage or intervening
assignment provided that the related Lender or originator certifies on the
face of such reproduction(s) or copy as follows: "Certified true and
correct copy of original which has been transmitted for recordation." For
purposes hereof, transmitted for recordation means having been mailed or
otherwise delivered for recordation to the appropriate authority. In all
such instances, the Company shall transmit the original recorded Mortgage
and any intervening assignments with evidence of recording thereon (or a
copy of such original Mortgage or intervening assignment certified by the
applicable recording office) (collectively, "Recording Documents") to the
Trustee within 270 days after the execution and delivery hereof. In
instances where, due to a delay on the part of the recording office where
any such Recording Documents have been delivered for recordation, the
Recording Documents cannot be delivered to the Trustee within 270 days
after execution and delivery hereof, the Company shall deliver to the
Trustee within such time period a certificate (a "Company Officer's
Certificate") signed by the Chairman of the Board, President, any Vice
President or Treasurer of the Company stating the date by which the Company
expects to receive such Recording Documents from the applicable recording
office. In the event that Recording Documents have still not been received
by the Company and delivered to the Trustee by the date specified in its
previous Company Officer's Certificate delivered to the Trustee, the
Company shall deliver to the Trustee by such date an additional Company
Officer's Certificate stating a revised date by which the Company expects
to receive the applicable Recording Documents. This procedure shall be
repeated until the Recording Documents have been received by the Company
and delivered to the Trustee.
In instances where, due to a delay on the part of the title insurer, a
copy of the title insurance policy for a particular Mortgage Loan is not
included in the Mortgage File delivered to the Trustee prior to or
concurrently with the execution and delivery hereof, the Company shall
provide a copy of such title insurance policy to the Trustee within 90 days
after the Company's receipt of the Recording Documents necessary to issue
such title insurance policy. In addition, the Company shall, subject to the
limitations set forth in the preceding sentence, provide to the Trustee
upon request therefor a duplicate title insurance policy for any Mortgage
Loan.
<PAGE> 42
For Mortgage Loans for which the Company has received a Payoff after
the Cut-Off Date and prior to the date of execution and delivery hereof,
the Company, in lieu of delivering the above documents, herewith delivers
to the Trustee a certification of a Servicing Officer of the nature set
forth in Section 3.10.
The Trustee is authorized, with the Master Servicer's consent, to
appoint any bank or trust company approved by and unaffiliated with each of
the Company and the Master Servicer as Custodian of the documents or
instruments referred to above in this Section 2.01, and to enter into a
Custodial Agreement for such purpose, provided, however, that the Trustee
shall be and remain liable for the acts of any such Custodian only to the
extent that it is responsible for its own acts hereunder.
The Tax Matters Person, shall, on behalf of the REMIC I Trust Fund,
elect to treat the REMIC I Trust Fund as a REMIC within the meaning of
Section 860D of the Code and, if necessary, under applicable state laws.
Such election shall be included in the Form 1066 and any appropriate state
return to be filed on behalf of REMIC I for its first taxable year.
The Closing Date is hereby designated as the "startup day" of REMIC I
within the meaning of Section 860G(a)(9) of the Code.
The regular interests (as set forth in the table contained in the
Preliminary Statement hereto) relating to the REMIC I Trust Fund are hereby
designated as "regular interests" for purposes of Section 860G(a)(1) of the
Code. The Class R Certificates are being issued in a single Class, which is
hereby designated as the sole class of "residual interest" in the REMIC I
Trust Fund for purposes of Section 860G(a)(2) of the Code.
The parties intend that the affairs of the REMIC I Trust Fund formed
hereunder shall constitute, and that the affairs of the REMIC I Trust Fund
shall be conducted so as to qualify the REMIC I Trust Fund as a REMIC. In
furtherance of such intention, the Tax Matters Person shall, on behalf of
the REMIC I Trust Fund: (a) prepare and file, or cause to be prepared and
filed, a federal tax return using a calendar year as the taxable year and
using an accrual method of accounting for the REMIC I Trust Fund when and
as required by the REMIC Provisions and other applicable federal income tax
laws; (b) make an election, on behalf of the trust, for the REMIC I Trust
Fund to be treated as a REMIC on the federal tax return of the REMIC I
Trust Fund for its first taxable year, in accordance with the REMIC
Provisions; (c) prepare and forward, or cause to be prepared and forwarded,
to the Certificateholders and the Trustee, all information reports as and
when required to be provided to them in accordance with the REMIC
Provisions, and make available the information necessary for the
application of Section 860E(e) of the Code; (d) conduct the affairs of the
REMIC I Trust Fund at all times that any REMIC I Regular Interests are
outstanding so as to maintain the status of the REMIC I Trust Fund as a
REMIC under the REMIC Provisions; (e) not knowingly or intentionally take
any action or omit to take any action that would cause the termination of
the REMIC status of the REMIC I Trust Fund; and (f) pay the amount of any
federal prohibited transaction penalty taxes imposed on the REMIC I Trust
<PAGE> 43
Fund when and as the same shall be due and payable (but such obligation
shall not prevent the Company or any other appropriate person from
contesting any such tax in appropriate proceedings and shall not prevent
the Company from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings); provided, that the Company shall
be entitled to be indemnified by the REMIC I Trust Fund for any such
prohibited transaction penalty taxes if the Company's failure to exercise
reasonable care was not the primary cause of the imposition of such
prohibited transaction penalty taxes.
The Trustee and the Master Servicer shall promptly provide the Company
with such information in the possession of the Trustee or the Master
Servicer, respectively, as the Company may from time to time request for
the purpose of enabling the Company to prepare tax returns.
In the event that a Mortgage Loan is discovered to have a defect
which, had such defect been discovered before the startup day, would have
prevented such Mortgage Loan from being a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code, and the Company does not
repurchase such Mortgage Loan within 90 days of such date, the Master
Servicer, on behalf of the Trustee, shall within 90 days of the date such
defect is discovered sell such Mortgage Loan at such price as the Master
Servicer in its sole discretion, determines to be the greatest price that
will result in the purchase thereof within 90 days of such date, unless the
Master Servicer delivers to the Trustee an Opinion of Counsel to the effect
that continuing to hold such Mortgage Loan will not adversely affect the
status of the electing portion of the REMIC I Trust Fund as a REMIC for
federal income tax purposes.
In the event that any tax is imposed on "prohibited transactions" of
the REMIC I Trust Fund as defined in Section 860F of the Code and not paid
by the Company pursuant to clause (f) of the third preceding paragraph,
such tax shall be charged against amounts otherwise distributable to the
Class R Certificateholders. Notwithstanding anything to the contrary
contained herein, the Trustee is hereby authorized to retain from amounts
otherwise distributable to the Class R Certificateholders on any
Distribution Date sufficient funds to reimburse the Tax Matters Person (or
any agent therefor appointed in accordance with the definition of "Tax
Matters Person" herein, if applicable), for the payment of such tax (upon
the written request of the Tax Matters Person or its agent, to the extent
reimbursable, and to the extent that the Tax Matters Person or its agent
has not been previously reimbursed therefor).
Section 2.02. Acceptance by Trustee. The Trustee acknowledges receipt (or
with respect to any Mortgage Loan subject to a Custodial Agreement, receipt
by the Custodian thereunder) of the documents (or certified copies thereof
as specified in Section 2.01) referred to in Section 2.01 above, but
without having made the review required to be made within 45 days pursuant
to this Section 2.02, and declares that as of the Closing Date it holds and
will hold such documents and the other documents constituting a part of the
Mortgage Files delivered to it, and the Trust Fund, as Trustee in trust,
upon the trusts herein set forth, for the use and benefit of the Holders
<PAGE> 44
from time to time of the Certificates. The Trustee agrees, for the benefit
of the Holders of the Certificates, to review or cause the Custodian to
review each Mortgage File within 45 days after the Closing Date and deliver
to the Company a certification in the form attached as Exhibit M hereto, to
the effect that, except as noted, all documents required (in the case of
instruments described in clauses (X)(v) and (Y)(x) of the definition of
"Mortgage File", known by the Trustee to be required) pursuant to the
definition of "Mortgage File" and Section 2.01 have been executed and
received, and that such documents relate to the Mortgage Loans identified
in the Mortgage Loan Schedule. In performing such review, the Trustee may
rely upon the purported genuineness and due execution of any such document,
and on the purported genuineness of any signature thereon. The Trustee
shall not be required to make any independent examination of any documents
contained in each Mortgage File beyond the review specifically required
herein. The Trustee makes no representations as to: (i) the validity,
legality, enforceability or genuineness of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any Mortgage Loan. If the
Trustee finds any document or documents constituting a part of a Mortgage
File not to have been executed or received, or to be unrelated to the
Mortgage Loans identified in the Mortgage Loan Schedule, the Trustee shall
promptly so notify the Company. The Company hereby covenants and agrees
that, if any such defect cannot be corrected or cured, the Company shall,
not later than 60 days after the Trustee's notice to it respecting such
defect, within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the related
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)),
either (i) repurchase the related Mortgage Loan from the Trustee at the
Purchase Price, or (ii) substitute for any Mortgage Loan to which such
defect relates a different mortgage loan (a "Substitute Mortgage Loan")
which is a "qualified replacement mortgage" (as defined in the Code) and,
(iii) after such three-month or two-year period, as applicable, the Company
shall repurchase the Mortgage Loan from the Trustee at the Purchase Price
but only if the Mortgage Loan is in default or default is, in the judgment
of the Company, reasonably imminent. If such defect would cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the
Code), then notwithstanding the previous sentence, purchase, repurchase or
substitution must occur within the sooner of (i) 90 days from the date the
defect was discovered or (ii) in the case of substitution, two years from
the Closing Date.
Such Substitute Mortgage Loan shall be an adjustable rate mortgage
loan with an initial fixed rate period of approximately five years and
annual adjustments thereafter based on the Index, mature no later than, and
not more than two years earlier than, have a principal balance and Loan-to-
Value Ratio equal to or less than, and have a Pass-Through Rate on the date
of substitution equal to or no more than 1% greater than, a Margin and Rate
Ceiling equal to or greater than, the Mortgage Loan being substituted for.
If the aggregate of the principal balances of the Substitute Mortgage Loans
substituted for a Mortgage Loan is less than the Principal Balance of such
Mortgage Loan, the Company shall pay the difference in cash to the Trustee
<PAGE> 45
for deposit into the Certificate Account, and such payment by the Company
shall be treated in the same manner as proceeds of the repurchase by the
Company of a Mortgage Loan pursuant to this Section 2.02. Furthermore, such
Substitute Mortgage Loan shall otherwise have such characteristics so that
the representations and warranties of the Company set forth in Section 2.03
hereof would not have been incorrect had such Substitute Mortgage Loan
originally been a Mortgage Loan, and the Company shall be deemed to have
made such representations and warranties as to such Substitute Mortgage
Loan. A Substitute Mortgage Loan may be substituted for a defective
Mortgage Loan whether or not such defective Mortgage Loan is itself a
Substitute Mortgage Loan. Notwithstanding anything herein to the contrary,
each Substitute Mortgage Loan shall be deemed to have the same Pass-Through
Rate as the Mortgage Loan for which it was substituted.
The Purchase Price for each purchased or repurchased Mortgage Loan
shall be deposited by the Company in the Certificate Account and, upon
receipt by the Trustee of written notification of such deposit signed by a
Servicing Officer, the Trustee shall release to the Company the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in
the Company or its designee or assignee title to any Mortgage Loan released
pursuant hereto. The obligation of the Company to repurchase or substitute
any Mortgage Loan as to which such a defect in a constituent document
exists shall constitute the sole remedy respecting such defect available to
the Certificateholders or the Trustee on behalf of the Certificateholders.
Section 2.03. Representations and Warranties of the Company Concerning the
Mortgage Loans. With respect to the conveyance of the Mortgage Loans
provided for in Section 2.01 herein, the Company hereby represents and
warrants to the Trustee that as of the Cut-Off Date unless otherwise
indicated:
(i) The information set forth in the Mortgage Loan Schedule was true
and correct in all material respects at the date or dates respecting
which such information is furnished;
(ii) As of the Closing Date, each Mortgage relating to a Mortgage
Loan that is not a Cooperative Loan is a valid and enforceable (subject to
Section 2.03(xvi)) first lien on an unencumbered estate in fee simple
or leasehold estate in the related Mortgaged Property subject only to
(a) liens for current real property taxes and special assessments; (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in
the appraisal obtained in connection with the origination of the
Mortgage Loan; (c) exceptions set forth in the title insurance policy
relating to such Mortgage, such exceptions being acceptable to
mortgage lending institutions generally; and (d) other matters to
which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
the Mortgage;
<PAGE> 46
(iii) Immediately upon the transfer and assignment contemplated
herein, the Trustee shall have good title to, and will be the sole
legal owner of, each Mortgage Loan, free and clear of any encumbrance
or lien (other than any lien under this Agreement);
(iv) As of the day prior to the Cut-Off Date, all payments due on
each Mortgage Loan had been made and no Mortgage Loan had been delinquent
(i.e., was more than 30 days past due) more than once in the preceding
12 months and any such delinquency lasted for no more than 30 days;
(v) As of the Closing Date, there is no late assessment for
delinquent taxes outstanding against any Mortgaged Property;
(vi) As of the Closing Date, there is no offset, defense or
counterclaim to any Mortgage Note, including the obligation of the
Mortgagor to pay the unpaid principal or interest on such Mortgage
Note except to the extent that the Buydown Agreement for a Buydown
Loan forgives certain indebtedness of a Mortgagor;
(vii) As of the Closing Date, each Mortgaged Property is free of
damage and in good repair, ordinary wear and tear excepted;
(viii) Each Mortgage Loan at the time it was made complied with all
applicable state and federal laws, including, without limitation,
usury, equal credit opportunity, disclosure and recording laws;
(vix) Each Mortgage Loan was originated by a savings association,
savings bank, credit union, insurance company, or similar institution
which is supervised and examined by a federal or state authority or by
a mortgagee approved by the FHA and will be serviced by an institution
which meets the servicer eligibility requirements established by the
Company;
(x) As of the Closing Date, each Mortgage Loan which is not a
Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee
title insurance policy or other form of policy of insurance which, as
of the origination date of such Mortgage Loan, was acceptable to
Fannie Mae or Freddie Mac, and has been issued by, and is the valid
and binding obligation of, a title insurer which, as of the
origination date of such Mortgage Loan, was acceptable to Fannie Mae
or Freddie Mac and qualified to do business in the state in which the
related Mortgaged Property is located. Such policy insures the
originator of the Mortgage Loan, its successors and assigns as to the
first priority lien of the Mortgage in the original principal amount
of the Mortgage Loan subject to the exceptions set forth in such
policy. Such policy is in full force and effect and will be in full
force and effect and inure to the benefit of the Certificateholders
upon the consummation of the transactions contemplated by this
Agreement and no claims have been made under such policy, and no prior
holder of the related Mortgage, including the Company, has done, by
act or omission, anything which would impair the coverage of such
<PAGE> 47
policy;
(xi) All of the Mortgage Loans with Loan-to-Value Ratios as of
the Cut-Off Date in excess of 80% were covered by a Primary Insurance
Policy or an FHA insurance policy or a VA guaranty, and such policy or
guaranty is valid and remains in full force and effect;
(xii) As of the Closing Date, all policies of insurance required
by this Agreement or by a Selling and Servicing Contract have been
validly issued and remain in full force and effect, including such
policies covering the Company, the Master Servicer or any Servicer;
(xiii) As of the Closing Date, each insurer issuing a Primary
Insurance Policy holds a rating acceptable to the Rating Agencies;
(xiv) Each Mortgage (exclusive of any riders thereto) was
documented by appropriate Fannie Mae/Freddie Mac mortgage instru-
ments in effect at the time of origination, or other instruments
approved by the Company;
(xv) As of the Closing Date, the Mortgaged Property securing each
Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is
improved with a one- to four-family dwelling unit, including units in
a duplex, condominium project, townhouse, a planned unit development
or a de minimis planned unit development;
(xvi) As of the Closing Date, each Mortgage and Mortgage Note is
the legal, valid and binding obligation of the maker thereof and is
enforceable in accordance with its terms, except only as such
enforcement may be limited by laws affecting the enforcement of
creditors' rights generally and principles of equity;
(xvii) As of the date of origination, as to Mortgaged Properties
which are units in condominiums or planned unit developments, all of
such units met Fannie Mae or Freddie Mac requirements, are located in a
condominium or planned unit development projects which have received
Fannie Mae or Freddie Mac approval, or are approvable by Fannie Mae or
Freddie Mac or have otherwise been approved by the Company;
(xviii) None of the Mortgage Loans is a Buydown Loan;
(xviv) Based solely on representations of the Mortgagors obtained
at the origination of the related Mortgage Loans, approximately 96.87% (by
Principal Balance) of the Mortgage Loans will be secured by owner
occupied Mortgaged Properties which are the primary residences of the
related Mortgagors, approximately 2.95% (by Principal Balance) of the
Mortgage Loans will be secured by owner occupied Mortgaged Properties
which were second or vacation homes of the Mortgagors and
approximately 0.18% (by Principal Balance) of the Mortgage Loans will
be secured by Mortgaged Properties which were investor properties of
the related Mortgagors;
<PAGE> 48
(xx) Prior to origination or refinancing, an appraisal of each
Mortgaged Property was made by an appraiser on a form satisfactory to
Fannie Mae or Freddie Mac;
(xxi) The Mortgage Loans have been underwritten substantially in
accordance with the applicable Underwriting Standards;
(xxii) All of the Mortgage Loans have due-on-sale clauses; however,
the due on sale provisions may not be exercised at the time of a transfer
if prohibited by law or if the proposed transferee meets the
creditworthiness requirements under the Mortgage Note;
(xxiii) The Company used no adverse selection procedures in selecting
the Mortgage Loans from among the outstanding fixed-rate conventional
mortgage loans purchased by it which were available for inclusion in
the Mortgage Pool and as to which the representations and warranties
in this Section 2.03 could be made;
(xxiv) With respect to each Cooperative Loan, the Cooperative Stock
that is pledged as security for the Cooperative Loan is held by a person
as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the
Code);
(xxv) Each Cooperative Loan is secured by a valid, subsisting and
enforceable (except as such enforcement may be limited by laws
affecting the enforcement of creditors' rights generally and
principles of equity) perfected first lien and security interest in
the related Cooperative Stock securing the related Mortgage Note,
subject only to (a) liens of the Cooperative for unpaid assessments
representing the Mortgagor's pro rata share of the Cooperative's
payments for its blanket mortgage, current and future real property
taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject, and (b) other matters to
which like collateral is commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
the Security Agreement;
(xxvi) With respect to any Mortgage Loan as to which an affidavit
has been delivered to the Trustee certifying that the original Mortgage
Note is a Destroyed Mortgage Note, if such Mortgage Loan is
subsequently in default, the enforcement of such Mortgage Loan or of
the related Mortgage by or on behalf of the Trustee will not be
materially adversely affected by the absence of the original Mortgage
Note;
(xxvii) Based upon an appraisal of the Mortgaged Property securing
each Mortgage Loan, approximately 91.69% (by Principal Balance) of the
Mortgage Loans had a current Loan-to-Value Ratio less than or equal to
80%, approximately 8.32% (by Principal Balance) of the Mortgage Loans
had a current Loan-to-Value Ratio greater than 80% but less than or
equal to 95% and none of the Mortgage Loans had a current Loan-to-
<PAGE> 49
Value Ratio greater than 95%;
(xxviii) Approximately 18.75% (by Principal Balance) of the
Mortgage Loans were originated for the purpose of refinancing existing
mortgage debt, including cash-out refinancings; and approximately 81.26%
(by Principal Balance) of the Mortgage Loans were originated for the
purpose of purchasing the Mortgaged Property;
(xxvix) Not less than approximately 61.41% (by Principal Balance) of
the Mortgage Loans were originated under full documentation programs;
(xxx) Each Mortgage Loan constitutes a qualified mortgage under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-
2(a)(1).
It is understood and agreed that the representations and warranties
set forth in this Section 2.03 shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian, as the case may be, and
shall continue throughout the term of this Agreement. Upon discovery by any
of the Company, the Master Servicer, the Trustee or the Custodian of a
breach of any of the foregoing representations and warranties which
materially and adversely affects the value of the related Mortgage Loans or
the interests of the Certificateholders in the related Mortgage Loans, the
Company, the Master Servicer, the Trustee or the Custodian, as the case may
be, discovering such breach shall give prompt written notice to the others.
Within 90 days of its discovery or its receipt of notice of breach, the
Company shall repurchase, subject to the limitations set forth in the
definition of "Purchase Price", or substitute for the affected Mortgage
Loan or Mortgage Loans or any property acquired in respect thereof from the
Trustee, unless it has cured such breach in all material respects. After
the end of the three-month period beginning on the "start-up day", any such
substitution shall be made only if the Company provides to the Trustee an
Opinion of Counsel reasonably satisfactory to the Trustee that each
Substitute Mortgage Loan will be a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code. Such substitution shall be
made in the manner and within the time limits set forth in Section 2.02.
Any such repurchase by the Company shall be accomplished in the manner and
at the Purchase Price, if applicable, but shall not be subject to the time
limits, set forth in Section 2.02. It is understood and agreed that the
obligation of the Company to provide such substitution or to make such
repurchase of any affected Mortgage Loan or Mortgage Loans or any property
acquired in respect thereof as to which a breach has occurred and is
continuing shall constitute the sole remedy respecting such breach
available to the Certificateholders or the Trustee on behalf of the
Certificateholders.
Section 2.04. Acknowledgment of Transfer of Trust Fund; Authentication of
Certificates. The Trustee acknowledges the transfer and assignment to it of
the property constituting the Trust Fund, but without having made the
review required to be made within 45 days pursuant to Section 2.02, and, as
of the Closing Date, shall cause to be authenticated and delivered, upon
and pursuant to the order of the Company, the Certificates in Authorized
<PAGE> 50
Denominations evidencing the entire ownership of the Trust Fund.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01. The Company to Act as Master Servicer. The Company shall
act as Master Servicer to service and administer the Mortgage Loans on
behalf of the Trustee and for the benefit of the Certificateholders in
accordance with the terms hereof and in the same manner in which, and with
the same care, skill, prudence and diligence with which, it services and
administers similar mortgage loans for other portfolios, and shall have
full power and authority 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, including, without limitation, the power and
authority to bring actions and defend the Trust Fund on behalf of the
Trustee in order to enforce the terms of the Mortgage Notes. The Master
Servicer may perform its master servicing responsibilities through agents
or independent contractors, but shall not thereby be released from any of
its responsibilities hereunder and the Master Servicer shall diligently
pursue all of its rights against such agents or independent contractors.
The Master Servicer shall make reasonable efforts to collect or cause
to be collected all payments called for under the terms and provisions of
the Mortgage Loans and shall, to the extent such procedures shall be
consistent with this Agreement and the terms and provisions of any Primary
Insurance Policy, any FHA insurance policy or VA guaranty, any hazard
insurance policy, and federal flood insurance, cause to be followed such
collection procedures as are followed with respect to mortgage loans
comparable to the Mortgage Loans and held in portfolios of responsible
mortgage lenders in the local areas where each Mortgaged Property is
located. The Master Servicer shall enforce "due-on-sale" clauses with
respect to the related Mortgage Loans, to the extent permitted by law,
subject to the provisions set forth in Section 3.08.
Consistent with the foregoing, the Master Servicer may in its
discretion (i) waive or cause to be waived any assumption fee or late
payment charge in connection with the prepayment of any Mortgage Loan and
(ii) only upon determining that the coverage of any applicable insurance
policy or guaranty related to a Mortgage Loan will not be materially
adversely affected, arrange a schedule, running for no more than 180 days
after the first delinquent Due Date, for payment of any delinquent
installment on any Mortgage Note or for the liquidation of delinquent
items. The Master Servicer shall have the right, but not the obligation, to
repurchase any delinquent Mortgage Loan delinquent 90 consecutive days or
more for an amount equal to its Purchase Price; provided, however, that the
aggregate Purchase Price of Mortgage Loans so purchased or repurchased
pursuant to this sentence shall not exceed one-half of one percent (0.50%)
of the aggregate Principal Balance, as of the Cut-Off Date, of all Mortgage
Loans. The Master Servicer shall also have the right, but not the
obligation, to repurchase, for an amount equal to its Purchase Price, any
Mortgage Loan either (i) delinquent 90 consecutive days or more, (ii)
<PAGE> 51
delinquent one or more but less than 90 consecutive days with respect to
which the Master Servicer has determined, in its reasonable judgment, that
a default is expected to occur or (iii) with respect to which the Mortgage
was fraudulently procured by the Mortgagor, in the case of each of (i),
(ii) and (iii) above, for the purpose of requiring the Person who sold such
Mortgage Loan to the Company to repurchase such Mortgage Loan based on a
breach of a representation or warranty made by such Person in connection
with the Company's purchase or acquisition of such Mortgage Loan. The
Master Servicer shall also have the right, but not the obligation, to
direct the Trustee to sell, transfer and assign any Mortgage Loan that has
been delinquent for 90 consecutive days or more to a third party designated
by the Master Servicer as agent for such third party, upon receipt by the
Trustee of written notification signed by a Servicing Officer of the
deposit in the Certificate Account of the Purchase Price for such
delinquent Mortgage Loan by the Master Servicer on behalf of such third
party or by such third party; provided, however, that if the Purchase Price
is deposited in the Certificate Account by the Master Servicer on behalf of
such third party, the Master Servicer shall be entitled to retain from the
Purchase Price the amount of any unreimbursed advances made by the Master
Servicer with respect to such Mortgage Loan, and if the Purchase Price is
deposited in the Certificate Account directly by such third party, the
Master Servicer shall be entitled to reimburse itself for such unreimbursed
advances pursuant to Section 3.05(a)(iv). For purposes of this paragraph,
a Mortgage Loan is considered delinquent for 90 consecutive days if a
Monthly Payment is not received by the first day of the third month
following the month during which such payment was due.
Consistent with the terms of this Section 3.01, the Master Servicer
may waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of
the related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be adversely affected by
such waiver, modification, postponement or indulgence; provided, however,
that (unless the Mortgagor is in default with respect to the Mortgage Loan
or in the reasonable judgment of the Master Servicer such default is
imminent) the Master Servicer shall not permit any modification with
respect to any Mortgage Loan that would (i) change the applicable Mortgage
Interest Rate, defer or forgive the payment of any principal or interest,
reduce the outstanding principal balance (except for actual payments of
principal) or extend the final maturity date with respect to such Mortgage
Loan, or (ii) be inconsistent with the terms of any applicable Primary
Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance
policy or federal flood insurance policy. Notwithstanding the foregoing,
the Master Servicer shall not permit any modification with respect to any
Mortgage Loan that would both constitute a sale or exchange of such
Mortgage Loan within the meaning of Section 1001 of the Code (including any
proposed, temporary or final regulations promulgated thereunder) (other
than in connection with a proposed conveyance or assumption of such
Mortgage Loan that is treated as a Principal Prepayment or in a default
situation) and cause REMIC I to fail to qualify as a REMIC under the Code.
<PAGE> 52
The Master Servicer is hereby authorized and empowered by the Trustee
to execute and deliver or cause to be executed and delivered on behalf of
the Certificateholders, and the Trustee or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release,
discharge or modification, assignments of Mortgages and endorsements of
Mortgage Notes in connection with refinancings (in jurisdictions where such
assignments are the customary and usual standard of practice of mortgage
lenders) and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall
execute and furnish to the Master Servicer, at the Master Servicer's
direction, any powers of attorney and other documents prepared by the
Master Servicer and determined by the Master Servicer to be necessary or
appropriate to enable the Master Servicer to carry out its supervisory,
servicing and administrative duties under this Agreement.
The Master Servicer and each Servicer shall obtain (to the extent
generally commercially available from time to time) and maintain fidelity
bond and errors and omissions coverage acceptable to Fannie Mae or Freddie
Mac with respect to their obligations under this Agreement and the
applicable Selling and Servicing Contract, respectively. The Master
Servicer or each Servicer, as applicable, shall establish escrow accounts
for, or pay when due (by means of an advance), any tax liens in connection
with the Mortgaged Properties that are not paid by the Mortgagors when due
to the extent that any such payment would not constitute a Nonrecoverable
Advance when made. Notwithstanding the foregoing, the Master Servicer shall
not permit any modification with respect to any Mortgage Loan that would
both constitute a sale or exchange of such Mortgage Loan within the meaning
of Section 1001 of the Code (including any proposed, temporary or final
regulations promulgated thereunder) (other than in connection with a
proposed conveyance or assumption of such Mortgage Loan that is treated as
a Principal Prepayment or in a default situation) and cause REMIC I to fail
to qualify as a REMIC under the Code. The Master Servicer shall be entitled
to approve a request from a Mortgagor for a partial release of the related
Mortgaged Property, the granting of an easement thereon in favor of another
Person, any alteration or demolition of the related Mortgaged Property or
other similar matters if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of
the related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be adversely affected
thereby and that REMIC I would not fail to continue to qualify as a REMIC
under the Code as a result thereof and that no tax on "prohibited
transactions" or "contributions" after the startup day would be imposed on
REMIC I as a result thereof.
In connection with the servicing and administering of each Mortgage
Loan, the Master Servicer and any affiliate of the Master Servicer (i) may
perform services such as appraisals, default management and brokerage
services that are not customarily provided by servicers of mortgage loans,
and shall be entitled to reasonable compensation therefor and (ii) may, at
its own discretion and on behalf of the Trustee, obtain credit information
in the form of a "credit score" from a credit repository.
<PAGE> 53
Section 3.02. Custodial Accounts. The Master Servicer shall cause to be
established and maintained by each Servicer under the Master Servicer's
supervision the Custodial Account for P&I, Buydown Fund Accounts (if any)
and special Custodial Account for Reserves and shall deposit or cause to be
deposited therein daily the amounts related to the Mortgage Loans required
by the Selling and Servicing Contracts to be so deposited. Proceeds
received with respect to individual Mortgage Loans from any title, hazard,
or FHA insurance policy, VA guaranty, Primary Insurance Policy or other
insurance policy (other than any Special Primary Insurance Policy) covering
such Mortgage Loans shall be deposited first in the Custodial Account for
Reserves if required for the restoration or repair of the related Mortgaged
Property. Otherwise, Insurance Proceeds (other than proceeds from any
Special Primary Insurance Policy) shall be deposited in the Custodial
Account for P&I, and shall be applied to the balances of the related
Mortgage Loans as payments of interest and principal.
The Master Servicer is hereby authorized to make withdrawals from and
to issue drafts against the Custodial Accounts for P&I and the Custodial
Accounts for Reserves for the purposes required or permitted by this
Agreement. Each Custodial Account for P&I and each Custodial Account for
Reserves shall bear a designation clearly showing the respective interests
of the applicable Servicer, as trustee, and of the Master Servicer, in
substantially one of the following forms:
(a) With respect to the Custodial Account for P&I: (i)
[Servicer's Name], as agent, trustee and/or bailee of principal and
interest custodial account for PNC Mortgage Securities Corp., its
successors and assigns, for various owners of interests in PNC
Mortgage Securities Corp. mortgage-backed pools or (ii) [Servicer's
Name] in trust for PNC Mortgage Securities Corp.;
(b) With respect to the Custodial Account for Reserves: (i)
[Servicer's Name], as agent, trustee and/or bailee of taxes and
insurance custodial account for PNC Mortgage Securities Corp., its
successors and assigns for various mortgagors and/or various owners of
interests in PNC Mortgage Securities Corp. mortgage-backed pools or
(ii) [Servicer's Name] in trust for PNC Mortgage Securities Corp. and
various Mortgagors.
The Master Servicer hereby undertakes to assure remittance to the
Certificate Account of all amounts relating to the Mortgage Loans that have
been collected by any Servicer and are due to the Certificate Account
pursuant to Section 4.01 of this Agreement.
Section 3.03. The Investment Account; Eligible Investments.(a) Not later
than the Withdrawal Date, the Master Servicer shall withdraw or direct the
withdrawal of funds in the Custodial Accounts for P&I, for deposit in the
Investment Account, in an amount representing:
(i) Scheduled installments of principal and interest on the Mortgage
Loans received or advanced by the applicable Servicers which were due
on the related Due Date, net of Servicing Fees due the applicable
<PAGE> 54
Servicers and less any amounts to be withdrawn later by the applicable
Servicers from the applicable Buydown Fund Accounts;
(ii) Payoffs and the proceeds of other types of liquidations of the
Mortgage Loans received by the applicable Servicer for such Mortgage
Loans during the applicable Payoff Period, with interest to the date
of Payoff or liquidation less any amounts to be withdrawn later by the
applicable Servicers from the applicable Buydown Fund Accounts; and
(iii) Curtailments received by the applicable Servicers in the Prior
Period.
At its option, the Master Servicer may invest funds withdrawn from the
Custodial Accounts for P&I, as well as any Buydown Funds, Insurance
Proceeds and Liquidation Proceeds previously received by the Master
Servicer (including amounts paid by the Company in respect of any Purchase
Obligation or its substitution obligations set forth in Section 2.02 or
Section 2.03 or in connection with the exercise of the Company's option to
terminate this Agreement pursuant to Section 9.01) for its own account and
at its own risk, during any period prior to their deposit in the
Certificate Account. Such funds, as well as any funds which were withdrawn
from the Custodial Accounts for P&I on or before the Withdrawal Date, but
not yet deposited into the Certificate Account, shall immediately be
deposited by the Master Servicer with the Investment Depository in an
Investment Account in the name of the Master Servicer and the Trustee for
investment only as set forth in this Section 3.03. The Master Servicer
shall bear any and all losses incurred on any investments made with such
funds and shall be entitled to retain all gains realized on such
investments as additional servicing compensation. Not later than the
Business Day prior to the Distribution Date, the Master Servicer shall
deposit such funds, net of any gains (except Payoff Earnings) earned
thereon, in the Certificate Account.
(b) Funds held in the Investment Account shall be invested in (i) one
or more Eligible Investments which shall in no event mature later than the
Business Day prior to the related Distribution Date (except if such
Eligible Investments are obligations of the Trustee, such Eligible
Investments may mature on the Distribution Date), or (ii) such other
instruments as shall be required to maintain the Ratings.
Section 3.04. The Certificate Account.
(a) Not later than the Business Day prior to the related Distribution
Date, the Master Servicer shall direct the Investment Depository to deposit
into the Certificate Account the amounts previously deposited into the
Investment Account (which may include a deposit of Eligible Investments) to
which the Certificateholders are entitled or which are necessary for
payment of any Special Primary Insurance Premiums. In addition, not later
than the Business Day prior to the Distribution Date, the Master Servicer
shall deposit into the Certificate Account any Monthly P&I Advances or
other payments required to be made by the Master Servicer pursuant to
Section 4.02 of this Agreement and any Insurance Proceeds or Liquidation
<PAGE> 55
Proceeds (including amounts paid by the Company in respect of any Purchase
Obligation) not previously deposited in the Custodial Accounts for P&I or
the Investment Account, and any amounts paid by the Company in connection
with the exercise of its option to terminate this Agreement pursuant to
Section 9.01 or any other repurchase of Mortgage Loans permitted by this
Agreement.
(b) Funds held in the Certificate Account shall be invested at the
written direction of the Master Servicer in (i) one or more Eligible
Investments which shall in no event mature later than the Business Day
prior to the related Distribution Date (except if such Eligible Investments
are obligations of the Trustee, such Eligible Investments may mature on the
Distribution Date), or (ii) such other instruments as shall be required to
maintain the Ratings. The Master Servicer shall be entitled to receive any
gains earned on such Eligible Investments and shall bear any losses
suffered in connection therewith. If the Trustee has not received such
written investment directions from the Master Servicer, the Trustee shall
not invest funds held in the Certificate Account. The Trustee shall have
no liability for any losses on investments of funds held in the Certificate
Account.
Section 3.05. Permitted Withdrawals from the Certificate Account, the
Investment Account and Custodial Accounts for P&I and of Buydown Funds from
the Buydown Fund Accounts.
(a) The Master Servicer is authorized to make withdrawals, from time
to time, from the Investment Account, the Certificate Account or the
Custodial Accounts for P&I established by the Servicers of amounts
deposited therein in respect of the Certificates, as follows:
(i) To reimburse itself or the applicable Servicer for Monthly P&I
Advances made pursuant to Section 4.02 or a Selling and Servicing
Contract, such right to reimbursement pursuant to this paragraph (i)
being limited to amounts received on particular Mortgage Loans
(including, for this purpose, Insurance Proceeds and Liquidation
Proceeds) which represent late recoveries of principal and/or interest
respecting which any such Monthly P&I Advance was made;
(ii) To reimburse itself or the applicable Servicer for amounts
expended by or for the account of the Master Servicer pursuant to
Section 3.09 or amounts expended by such Servicer pursuant to the
Selling and Servicing Contracts in connection with the restoration of
property damaged by an Uninsured Cause or in connection with the
liquidation of a Mortgage Loan;
(iii) To pay to itself, with respect to the related Mortgage Loans,
the Master Servicing Fee (net of Compensating Interest reduced by Payoff
Earnings and Payoff Interest) as to which no prior withdrawals from
funds deposited by the Master Servicer have been made;
(iv) To reimburse itself or the applicable Servicer for advances made
with respect to related Mortgage Loans (except for Mortgage Loans
<PAGE> 56
purchased pursuant to a Purchase Obligation or pursuant to the second
sentence of the third paragraph of Section 3.01) which the Master
Servicer has determined to be Nonrecoverable Advances;
(v) To pay to itself reinvestment earnings deposited or earned in the
Investment Account and the Certificate Account to which it is entitled
and to reimburse itself for expenses incurred by and reimbursable to
it pursuant to Section 6.03;
(vi) To deposit to the Investment Account amounts in the Certificate
Account not required to be on deposit therein at the time of such
withdrawal;
(vii) To deposit in the Certificate Account, not later than the
Business Day prior to the related Distribution Date, the amounts
specified in Section 3.04(a);
(viii) To pay on behalf of the Trustee any Special Primary Insurance
Premium payable by the Trustee pursuant to Section 4.01(a); provided,
the Master Servicer shall give written notice thereof to the Trustee
prior to noon New York City time two Business Days prior to the
applicable Distribution Date; and
after making or providing for the above withdrawals
(vix) To clear and terminate the Investment Account and the Certifi-
cate Account following termination of this Agreement pursuant to Section
9.01.
Since, in connection with withdrawals pursuant to paragraphs (i) and
(ii), the Master Servicer's entitlement thereto is limited to collections
or other recoveries on the related Mortgage Loan, the Master Servicer or
the applicable Servicer shall keep and maintain separate accounting for
each Mortgage Loan, for the purpose of justifying any such withdrawals.
(b) The Master Servicer (or the applicable Servicer, if such Servicer
holds and maintains a Buydown Fund Account) is authorized to make
withdrawals, from time to time, from the Buydown Fund Account or Custodial
Account for P&I established by any Servicer under its supervision of the
following amounts of Buydown Funds:
(i) To deposit each month in the Investment Account the amount
necessary to supplement payments received on Buydown Loans;
(ii) In the event of a Payoff of any Mortgage Loan having a related
Buydown Fund, to apply amounts remaining in Buydown Fund Accounts to
reduce the required amount of such principal Payoff (or, if the
Mortgagor has made a Payoff, to refund such remaining Buydown Fund
amounts to the Person entitled thereto);
(iii) In the event of foreclosure or liquidation of any Mortgage Loan
having a Buydown Fund, to deposit remaining Buydown Fund amounts in
<PAGE> 57
the Investment Account as Liquidation Proceeds; and
(iv) To clear and terminate the portion of any account representing
Buydown Funds following termination of this Agreement pursuant to
Section 9.01;
(c) The Trustee is authorized to make withdrawals from time to time
from the Certificate Account to reimburse itself for advances it has made
pursuant to Section 7.01(a) hereof that it has determined to be
Nonrecoverable Advances.
Section 3.06. Maintenance of Primary Insurance Policies; Collections
Thereunder. The Master Servicer shall use commercially reasonable efforts
to keep, and to cause the Servicers to keep, in full force and effect each
Primary Insurance Policy (except any Special Primary Insurance Policy)
required with respect to a Mortgage Loan, in the manner set forth in the
applicable Selling and Servicing Contract, until no longer required, and
the Master Servicer shall use commercially reasonable efforts to keep in
full force and effect each Special Primary Insurance Policy, if any.
Notwithstanding the foregoing, the Master Servicer shall have no obligation
to maintain any Primary Insurance Policy for a Mortgage Loan for which the
outstanding Principal Balance thereof at any time subsequent to origination
was 80% or less of the Appraised Value of the related Mortgaged Property,
unless required by applicable law.
Unless required by applicable law, the Master Servicer shall not
cancel or refuse to renew, or allow any Servicer under its supervision to
cancel or refuse to renew, any Primary Insurance Policy in effect at the
date of the initial issuance of the Certificates that is required to be
kept in force hereunder; provided, however, that neither the Master
Servicer nor any Servicer shall advance funds for the payment of any
premium due under (i) any Primary Insurance Policy (other than a Special
Primary Insurance Policy) if it shall determine that such an advance would
be a Nonrecoverable Advance or (ii) any Special Primary Insurance Policy.
Section 3.07. Maintenance of Hazard Insurance. The Master Servicer shall
cause to be maintained for each Mortgage Loan (other than a Cooperative
Loan) fire insurance with extended coverage in an amount which is not less
than the original principal balance of such Mortgage Loan, except in cases
approved by the Master Servicer in which such amount exceeds the value of
the improvements to the Mortgaged Property. The Master Servicer shall also
require fire insurance with extended coverage in a comparable amount on
property acquired upon foreclosure, or deed in lieu of foreclosure, of any
Mortgage Loan (other than a Cooperative Loan). Any amounts collected under
any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property) shall be deposited into the
Custodial Account for P&I, subject to withdrawal pursuant to the applicable
Selling and Servicing Contract and pursuant to Section 3.03 and Section
3.05. Any unreimbursed costs incurred in maintaining any insurance
described in this Section 3.07 shall be recoverable as an advance by the
Master Servicer from the Investment Account or the Certificate Account.
Such insurance shall be with insurers approved by the Master Servicer and
<PAGE> 58
Fannie Mae or Freddie Mac. Other additional insurance may be required of a
Mortgagor, in addition to that required pursuant to such applicable laws
and regulations as shall at any time be in force and as shall require such
additional insurance. Where any part of any improvement to the Mortgaged
Property (other than a Mortgaged Property secured by a Cooperative Loan) is
located in a federally designated special flood hazard area and in a
community which participates in the National Flood Insurance Program at the
time of origination of the related Mortgage Loan, the Master Servicer shall
cause flood insurance to be provided. The hazard insurance coverage
required by this Section 3.07 may be met with blanket policies providing
protection equivalent to individual policies otherwise required. The Master
Servicer or the applicable Servicer shall be responsible for paying any
deductible amount on any such blanket policy. The Master Servicer agrees to
present, or cause to be presented, on behalf of and for the benefit of the
Trustee and Certificateholders, claims under the hazard insurance policy
respecting any Mortgage Loan, and in this regard to take such reasonable
actions as shall be necessary to permit recovery under such policy.
Section 3.08. Enforcement of Due-on-Sale Clauses; Assumption Agreements.
When any Mortgaged Property is about to be conveyed by the Mortgagor, the
Master Servicer shall, to the extent it has knowledge of such prospective
conveyance and prior to the time of the consummation of such conveyance,
exercise on behalf of the Trustee the Trustee's rights to accelerate the
maturity of such Mortgage Loan, to the extent that such acceleration is
permitted by the terms of the related Mortgage Note, under any "due-on-
sale" clause applicable thereto; provided, however, that the Master
Servicer shall not exercise any such right if the due-on-sale clause, in
the reasonable belief of the Master Servicer, is not enforceable under
applicable law or if such exercise would result in non-coverage of any
resulting loss that would otherwise be covered under any insurance policy.
In the event the Master Servicer is prohibited from exercising such right,
the Master Servicer is authorized to take or enter into an assumption and
modification agreement from or with the Person to whom a Mortgaged Property
has been or is about to be conveyed, pursuant to which such Person becomes
liable under the Mortgage Note and, unless prohibited by applicable state
law or unless the Mortgage Note contains a provision allowing a qualified
borrower to assume the Mortgage Note, the Mortgagor remains liable thereon;
provided that the Mortgage Loan shall continue to be covered (if so covered
before the Master Servicer enters such agreement) by any related Primary
Insurance Policy. The Master Servicer is also authorized to enter into a
substitution of liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is
substituted as Mortgagor and becomes liable under the Mortgage Note. The
Master Servicer shall not enter into any substitution or assumption with
respect to a Mortgage Loan if such substitution or assumption shall (i)
both constitute a "significant modification" effecting an exchange or
reissuance of such Mortgage Loan under the Code (or Treasury regulations
promulgated thereunder) and cause REMIC I to fail to qualify as a REMIC
under the REMIC Provisions or (ii) cause the imposition of any tax on
"prohibited transactions" or "contributions" after the startup day under
the REMIC Provisions. The Master Servicer shall notify the Trustee that
any such substitution or assumption agreement has been completed by
<PAGE> 59
forwarding to the Trustee the original copy of such substitution or
assumption agreement and other documents and instruments constituting a
part thereof. In connection with any such assumption or substitution
agreement, the terms of the related Mortgage Note shall not be changed. Any
fee collected by the applicable Servicer for entering into an assumption or
substitution of liability agreement shall be retained by such Servicer as
additional servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach
or any other violation of its obligations hereunder by reason of any
assumption of a Mortgage Loan by operation of law or any assumption which
the Master Servicer may be restricted by law from preventing, for any
reason whatsoever.
To the extent that any Mortgage Loan is assumable, the Master Servicer
shall inquire diligently into the creditworthiness of the proposed
transferee, and shall use the underwriting criteria for approving the
credit of the proposed transferee which are used by Fannie Mae with respect
to underwriting mortgage loans of the same type as the Mortgage Loan. If
the credit of the proposed transferee does not meet such underwriting
criteria, the Master Servicer diligently shall, to the extent permitted by
the Mortgage or the Mortgage Note and by applicable law, accelerate the
maturity of the Mortgage Loan.
Section 3.09. Realization Upon Defaulted Mortgage Loans. The Master
Servicer shall foreclose upon or otherwise comparably convert, or cause to
be foreclosed upon or comparably converted, the ownership of any Mortgaged
Property securing a Mortgage Loan which comes into and continues in default
and as to which no satisfactory arrangements can be made for collection of
delinquent payments pursuant to Section 3.01. In lieu of such foreclosure
or other conversion, and taking into consideration the desirability of
maximizing net Liquidation Proceeds after taking into account the effect of
Insurance Proceeds upon Liquidation Proceeds, the Master Servicer may, to
the extent consistent with prudent mortgage loan servicing practices,
accept a payment of less than the outstanding Principal Balance of a
delinquent Mortgage Loan in full satisfaction of the indebtedness evidenced
by the related Mortgage Note and release the lien of the related Mortgage
upon receipt of such payment. The Master Servicer shall not foreclose upon
or otherwise comparably convert a Mortgaged Property if the Master Servicer
is aware of evidence of toxic waste, other hazardous substances or other
evidence of environmental contamination thereon and the Master Servicer
determines that it would be imprudent to do so. In connection with such
foreclosure or other conversion, the Master Servicer shall cause to be
followed such practices and procedures as it shall deem necessary or
advisable and as shall be normal and usual in general mortgage servicing
activities. The foregoing is subject to the provision that, in the case of
damage to a Mortgaged Property from an Uninsured Cause, the Master Servicer
shall not be required to advance its own funds towards the restoration of
the property unless it shall be determined in the sole judgment of the
Master Servicer, (i) that such restoration will increase the proceeds of
liquidation of the Mortgage Loan to Certificateholders after reimbursement
<PAGE> 60
to itself for such expenses, and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds. The Master Servicer shall
be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof (as well as its normal servicing compensation) as an advance. The
Master Servicer shall maintain information required for tax reporting
purposes regarding any Mortgaged Property which is abandoned or which has
been foreclosed or otherwise comparably converted. The Master Servicer
shall report such information to the Internal Revenue Service and the
Mortgagor in the manner required by applicable law.
The Master Servicer may enter into one or more special servicing
agreements with a Lowest Class B Owner, subject to each Rating Agency's
acknowledgment that the Ratings of the Certificates in effect immediately
prior to the entering into of such agreement would not be qualified,
downgraded or withdrawn and the Certificates would not be placed on credit
review status (except for possible upgrading) as a result of such
agreement. Any such agreement may contain provisions whereby such Lowest
Class B Owner may (a) instruct the Master Servicer to instruct a Servicer
to the extent provided in the applicable Selling and Servicing Contract to
commence or delay foreclosure proceedings with respect to related
delinquent Mortgage Loans, provided that the Lowest Class B Owner deposits
a specified amount of cash with the Master Servicer that will be available
for distribution to Certificateholders if Liquidation Proceeds are less
than they otherwise may have been had the Servicer acted pursuant to its
normal servicing procedures, (b) purchase such delinquent Mortgage Loans
from the REMIC I Trust Fund immediately prior to the commencement of
foreclosure proceedings at a price equal to the aggregate outstanding
Principal Balance of such Mortgage Loans plus accrued interest thereon at
the applicable Mortgage Interest Rate through the last day of the month in
which such Mortgage Loans are purchased and/or (c) assume all of the
servicing rights and obligations with respect to such delinquent Mortgage
Loans so long as (i) the Master Servicer has the right to transfer the
servicing rights and obligations of such Mortgage Loans to another servicer
and (ii) such Lowest Class B Owner will service such Mortgage Loans in
accordance with the applicable Selling and Servicing Contract.
REMIC I shall not acquire any real property (or personal property
incident to such real property) except in connection with a default or
imminent default of a Mortgage Loan. In the event that REMIC I acquires any
real property (or personal property incident to such real property) in
connection with a default or imminent default of a Mortgage Loan, such
property shall be disposed of by the Master Servicer within three years
after its acquisition by the Master Servicer for REMIC I, unless the Master
Servicer provides to the Trustee an Opinion of Counsel to the effect that
the holding by REMIC I of such Mortgaged Property subsequent to three years
after its acquisition will not result in the imposition of taxes on
"prohibited transactions" of REMIC I as defined in Section 860F of the Code
or under the law of any state in which real property securing a Mortgage
Loan owned by REMIC I is located or cause REMIC I to fail to qualify as a
REMIC for federal income tax purposes or for state tax purposes under the
laws of any state in which real property securing a Mortgage Loan owned by
<PAGE> 61
REMIC I is located at any time that any Certificates are outstanding. The
Master Servicer shall manage, conserve, protect and operate each such
property for the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such property to fail
to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) 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. Pursuant to its efforts to sell such property,
the Master Servicer shall either itself or through an agent selected by the
Master Servicer protect and conserve such property in the same manner and
to such extent as is customary in the locality where such property is
located and may, incident to its conservation and protection of the
interests of the Certificateholders, rent the same, or any part thereof, as
the Master Servicer deems to be in the best interest of the Master Servicer
and the Certificateholders for the period prior to the sale of such
property. Additionally, the Master Servicer shall perform the tax
withholding and shall file information returns with respect to the receipt
of mortgage interests received in a trade or business, the reports of
foreclosures and abandonments of any Mortgaged Property and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050H, 6050J and 6050P,
respectively, of the Code, and deliver to the Trustee an Officers'
Certificate on or before March 31 of each year stating that such reports
have been filed. Such reports shall be in form and substance sufficient to
meet the reporting requirements imposed by Sections 6050H, 6050J and 6050P
of the Code.
Notwithstanding any other provision of this Agreement, the Master
Servicer and the Trustee, as applicable, shall comply with all federal
withholding requirements with respect to payments to Certificateholders of
interest or original issue discount that the Master Servicer or the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. Without
limiting the foregoing, the Master Servicer agrees that it will not
withhold with respect to payments of interest or original issue discount in
the case of a Certificateholder that has furnished or caused to be
furnished an effective Form W-8 or an acceptable substitute form or a
successor form and who is not a "10 percent shareholder" within the meaning
of Code Section 871(h)(3)(B) or a "controlled foreign corporation"
described in Code Section 881(c)(3)(C) with respect to REMIC I or the
Depositor. In the event the Trustee withholds any amount from interest or
original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholder.
Section 3.10. Trustee to Cooperate; Release of Mortgage Files. Upon the
Payoff or scheduled maturity of any Mortgage Loan, the Master Servicer
shall cause such final payment to be immediately deposited in the related
Custodial Account for P&I or the Investment Account. Upon notice thereof,
the Master Servicer shall promptly notify the Trustee by a certification
(which certification shall include a statement to the effect that all
<PAGE> 62
amounts received in connection with such payment which are required to be
deposited in either such account have been so deposited) of a Servicing
Officer and shall request delivery to it of the Mortgage File. Upon receipt
of such certification and request, the Trustee shall, not later than the
fifth succeeding Business Day, release the related Mortgage File to the
Master Servicer or the applicable Servicer indicated in such request. With
any such Payoff or other final payment, the Master Servicer is authorized
to prepare for and procure from the trustee or mortgagee under the Mortgage
which secured the Mortgage Note a deed of full reconveyance or other form
of satisfaction or assignment of Mortgage and endorsement of Mortgage Note
in connection with a refinancing covering the Mortgaged Property, which
satisfaction, endorsed Mortgage Note or assigning document shall be
delivered by the Master Servicer to the person or persons entitled thereto.
No expenses incurred in connection with such satisfaction or assignment
shall be payable to the Master Servicer by the Trustee or from the
Certificate Account, the related Investment Account or the related
Custodial Account for P&I. From time to time as appropriate for the
servicing or foreclosure of any Mortgage Loan, including, for this purpose,
collection under any Primary Insurance Policy, the Trustee shall, upon
request of the Master Servicer and delivery to it of a trust receipt signed
by a Servicing Officer, release not later than the fifth Business Day
following the date of receipt of such request and trust receipt the related
Mortgage File to the Master Servicer or the related Servicer as indicated
by the Master Servicer and shall execute such documents as shall be
necessary to the prosecution of any such proceedings. Such trust receipt
shall obligate the Master Servicer to return the Mortgage File to the
Trustee when the need therefor by the Master Servicer no longer exists,
unless the Mortgage Loan shall be liquidated, in which case, upon receipt
of a certificate of a Servicing Officer similar to that herein above
specified, the trust receipt shall be released by the Trustee to the Master
Servicer.
Section 3.11. Compensation to the Master Servicer and the Servicers. As
compensation for its activities hereunder, the Master Servicer shall be
entitled to receive from the Investment Account or the Certificate Account
the amounts provided for by Section 3.05(a)(iii). The Master Servicer shall
be required to pay all expenses incurred by it in connection with its
activities hereunder and shall not be entitled to reimbursement therefor,
except as specifically provided herein.
As compensation for its activities under the applicable Selling and
Servicing Contract, the applicable Servicer shall be entitled to withhold
or withdraw from the related Custodial Account for P&I the amounts provided
for in such Selling and Servicing Contract. Each Servicer is required to
pay all expenses incurred by it in connection with its servicing activities
under its Selling and Servicing Contract (including payment of premiums for
Primary Insurance Policies, other than Special Primary Insurance Policies,
if required) and shall not be entitled to reimbursement therefor except as
specifically provided in such Selling and Servicing Contract and not
inconsistent with this Agreement.
Section 3.12. Reports to the Trustee; Certificate Account Statement. Not
<PAGE> 63
later than 15 days after each Distribution Date, the Master Servicer shall
forward a statement, certified by a Servicing Officer, to the Trustee
setting forth the status of the Certificate Account as of the close of
business on such Distribution Date and showing, for the period covered by
such statement, the aggregate of deposits into and withdrawals from the
Certificate Account for each category of deposit specified in Section 3.04
and each category of withdrawal specified in Section 3.05, and stating that
all distributions required by this Agreement have been made (or if any
required distribution has not been made, specifying the nature and amount
thereof). The Trustee shall make available such statements to any
Certificateholder upon request at the expense of the Master Servicer. Such
statement shall also, to the extent available, include information
regarding delinquencies on the Mortgage Loans, indicating the number and
aggregate Principal Balance of Mortgage Loans which are one, two, three or
more months delinquent, the number and aggregate Principal Balance of
Mortgage Loans with respect to which foreclosure proceedings have been
initiated and the book value of any Mortgaged Property acquired by the
REMIC I Trust Fund through foreclosure, deed in lieu of foreclosure or
other exercise of the REMIC I Trust Fund's security interest in the
Mortgaged Property.
Section 3.13. Annual Statement as to Compliance. The Master Servicer shall
deliver to the Trustee, on or before April 30 of each year, beginning with
the first April 30 succeeding the Cut-Off Date by at least six months, an
Officer's Certificate stating as to the signer thereof, that (i) a review
of the activities of the Master Servicer during the preceding calendar year
and performance under this Agreement has been made under such officer's
supervision, and (ii) to the best of such officer's knowledge, based on
such review, the Master Servicer has fulfilled all its obligations under
this Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof. Copies of such statement
shall be provided by the Master Servicer to Certificateholders upon request
or by the Trustee (solely to the extent that such copies are available to
the Trustee) at the expense of the Master Servicer, should the Master
Servicer fail to so provide such copies.
Section 3.14. Access to Certain Documentation and Information Regarding
the Mortgage Loans. In the event that the Certificates are legal for
investment by federally-insured savings associations, the Master Servicer
shall provide to the OTS, the FDIC and the supervisory agents and examiners
of the OTS and the FDIC access to the documentation regarding the related
Mortgage Loans required by applicable regulations of the OTS or the FDIC,
as applicable, and shall in any event provide such access to the
documentation regarding such Mortgage Loans to the Trustee and its
representatives, such access being afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Master Servicer designated by it.
Section 3.15. Annual Independent Public Accountants' Servicing Report. On
or before April 30 of each year, beginning with the first April 30
succeeding the Cut-Off Date by at least six months, the Master Servicer, at
<PAGE> 64
its expense, shall cause a firm of independent public accountants to
furnish a statement to the Trustee to the effect that, in connection with
the firm's examination of the financial statements as of the previous
December 31 of the Master Servicer's parent corporation (which shall
include a limited examination of the Master Servicer's financial
statements), nothing came to their attention that indicated that the Master
Servicer was not in compliance with Section 3.02, Section 3.03, Section
3.04, Section 3.05, Section 3.11, Section 3.12 and Section 3.13 of this
Agreement, except for (i) such exceptions as such firm believes to be
immaterial, and (ii) such other exceptions as are set forth in such
statement.
Section 3.16. [Reserved.]
Section 3.17. Call Options.
Capitalized terms used in this Section 3.17 and not defined herein
shall have the meanings assigned to them in the Call Option Agreement.
Concurrently with the execution and delivery hereof, the Trustee
shall, at the direction of the Company, execute and deliver a Call Option
Agreement substantially in the form of Exhibit Q hereof. The Trustee shall
have no duty to review or otherwise determine the adequacy of the Call
Option Agreement.
The Trustee shall cause to be maintained at one of its offices or at
its designated agent a register in which there shall be recorded the name
and address of each Call Option Holder. Such register shall be amended
from time to time by the Trustee or its agent to reflect (i) notice of any
changes received by the Trustee pursuant to Section 9 of the Call Option
Agreement and (ii) any Assignment of a Call Option pursuant to Section
10(b) of the Call Option Agreement.
The Trustee shall not execute an acknowledgement to an Assignment
pursuant to Section 10(b)(ii) of the Call Option Agreement unless and until
it shall have received executed originals of all of the documents referred
to in Section 10(b)(i) of the Call Option Agreement.
Promptly after the Call Determination Date, the Trustee shall give
written notice by letter to the Holder of each Certificate with respect to
which a Call Option has been exercised, specifying (i) that such Call
Option has been exercised with respect to such Certificate and that (except
in the case of the Class X Call Option) the applicable Purchase Price shall
be payable to the Holder on the Purchase Date, (ii) the Purchase Date,
(iii) the amount of (or method of calculating) the Purchase Price payable
to such Holder and (iv) if the Certificate is not then held in book-entry
form, that payment of the Purchase Price will be made (on or after the
Purchase Date) only upon presentation and surrender of the Certificate at
the office of the Certificate Registrar designated in such notice.
Subject to Section 3.17(g), on the Purchase Date, the Trustee shall,
for each Certificate with respect to which a Call Option (other than the
<PAGE> 65
Class X Call Option) has been exercised, withdraw from the Certificate
Account the applicable Purchase Price deposited therein by the applicable
Call Option Holder in accordance with the Call Option Agreement, and shall
distribute such amount to the related Certificateholder by wire transfer in
immediately available funds for the account of, or by check mailed to, such
Certificateholder, as specified by such Certificateholder and at the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding Section 3.17(f), in the event that the Certificate is
not then held in book-entry form, payment of the applicable Purchase Price
in accordance with Section 3.17(f) shall be made only upon presentation and
surrender of the Certificate at the office of the Certificate Registrar.
In the event that any Holder of a Certificate with respect to which a Call
Option has been exercised shall not surrender its Certificate for
cancellation within six months after the Purchase Date, the Trustee shall
give a second written notice to such Certificateholder in the form of the
notice specified in Section 3.17(e). If within one year after the second
notice such Certificateholder shall not have surrendered its Certificate
for cancellation, the Trustee may, at the direction of the Master Servicer,
take appropriate steps to contact such Certificateholder concerning
surrender of its Certificate, and the cost thereof shall be paid out of the
applicable Purchase Price.
With respect to each Book-Entry Certificate for which a Call Option
Holder has exercised a Call Option and (except in the case of the Class X
Call Option) deposited the applicable Purchase Price into the Certificate
Account in accordance with the Call Option Agreement, the Trustee shall, on
or promptly after the Purchase Date, in accordance with instructions
received from the Call Option Holder, instruct the applicable Clearing
Agency to transfer the beneficial ownership interest in such Book-Entry
Certificate to the Call Option Holder. With respect to each Definitive
Certificate for which a Call Option Holder has exercised a Call Option and
(except in the case of the Class X Call Option) deposited the applicable
Purchase Price into the Certificate Account in accordance with the Call
Option Agreement, the Holder of such Definitive Certificate prior to the
Purchase Date shall be deemed to have surrendered such Definitive
Certificate to the Certificate Registrar for transfer to the Call Option
Holder. On the Purchase Date, the Trustee shall cause the Certificate
Registrar to note in the Certificate Register the registration of the
transfer of such Definitive Certificate to the Call Option Holder, and the
Call Option Holder shall be recognized as the Holder of such Definitive
Certificate. Each Holder of a Certificate is deemed, by acceptance of such
Certificate, to acknowledge and accept the provisions of this Section
3.17(h).
Section 3.18. [Reserved.]
Section 3.19. [Reserved.]
Section 3.20. Assumption or Termination of Selling and Servicing Contracts
by Trustee. In the event the Master Servicer, or any successor Master
Servicer, shall for any reason no longer be the Master Servicer (including
<PAGE> 66
by reason of an Event of Default), the Trustee as trustee hereunder or its
designee shall thereupon assume all of the rights and obligations of the
Master Servicer under the Selling and Servicing Contracts with respect to
the related Mortgage Loans unless the Trustee elects to terminate the
Selling and Servicing Contracts with respect to such Mortgage Loans in
accordance with the terms thereof. The Trustee, its designee or the
successor servicer for the Trustee shall be deemed to have assumed all of
the Master Servicer's interest therein with respect to the related Mortgage
Loans and to have replaced the Master Servicer as a party to the Selling
and Servicing Contracts to the same extent as if the rights and duties
under the Selling and Servicing Contracts relating to such Mortgage Loans
had been assigned to the assuming party, except that the Master Servicer
shall not thereby be relieved of any liability or obligations under the
Selling and Servicing Contracts with respect to the Master Servicer's
duties to be performed prior to its termination hereunder.
The Master Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to the
Selling and Servicing Contracts and the Mortgage Loans then being master
serviced by the Master Servicer and an accounting of amounts collected and
held by the Master Servicer and otherwise use its best efforts to effect
the orderly and efficient transfer of the rights and duties under the
related Selling and Servicing Contracts relating to such Mortgage Loans to
the assuming party.
ARTICLE IV
Payments to Certificateholders; Payment of Expenses
Section 4.01. Distributions to Certificateholders; Payment of Special
Primary Insurance Premiums.
(a) On each Distribution Date, the Trustee (or any duly appointed
paying agent) shall (i) subject to Section 3.05(a)(viii), withdraw from the
Certificate Account any Special Primary Insurance Premium payable on such
Distribution Date and pay such amount to the insurer under the applicable
Special Primary Insurance Policy and (ii) withdraw from the Certificate
Account (A) the Excess Liquidation Proceeds for such Distribution Date and
distribute such amounts to the Class R Certificateholders and (B) the
Available Distribution Amount for such Distribution Date and distribute,
from the amount so withdrawn, to the extent of the Available Distribution
Amount, the Distribution Amount for such Distribution Date to the
Certificates pursuant to the definition of "Distribution Amount", all in
accordance with the written statement received from the Master Servicer
pursuant to Section 4.02(b), by (except with respect to any Special Primary
Insurance Premiums) wire transfer in immediately available funds for the
account of, or by check mailed to, each such Certificateholder of record on
the immediately preceding Record Date (other than as provided in Section
9.01 respecting the final distribution), as specified by each such
Certificateholder and at the address of such Holder appearing in the
Certificate Register, and with respect to any Special Primary Insurance
Premiums, by means of payment acceptable to the insurer under the
<PAGE> 67
respective Special Primary Insurance Policy.
(b) All reductions in the Certificate Principal Balance of a
Certificate effected by distributions of principal and all allocations of
Realized Losses made on any Distribution Date shall be binding upon all
Holders of such Certificates and of any Certificates issued upon the
registration of transfer or exchange therefor or in lieu thereof, whether
or not such distribution is noted on such Certificate. The final
distribution of principal of each Certificate (and the final distribution
upon the Class R Certificates upon the termination of REMIC I) shall be
payable in the manner provided above only upon presentation and surrender
thereof on or after the Distribution Date therefor at the office or agency
of the Certificate Registrar specified in the notice delivered pursuant to
Section 4.01(c)(ii) and Section 9.01(b).
(c) Whenever, on the basis of Curtailments, Payoffs and Monthly
Payments on the Mortgage Loans and Insurance Proceeds and Liquidation
Proceeds received and expected to be received during the Payoff Period, the
Master Servicer has notified the Trustee that it believes that the entire
remaining unpaid Class Principal Balance of any Class of Certificates will
become distributable on the next Distribution Date, the Trustee shall, no
later than the 18th day of the month of such Distribution Date, mail or
cause to be mailed to each Person in whose name a Certificate to be so
retired is registered at the close of business on the Record Date and to
the Rating Agencies a notice to the effect that:
(i) it is expected that funds sufficient to make such final
distribution will be available in the Certificate Account on such
Distribution Date, and
(ii) if such funds are available, (A) such final distribution will be
payable on such Distribution Date, but only upon presentation and
surrender of such Certificate at the office or agency of the
Certificate Registrar maintained for such purpose (the address of
which shall be set forth in such notice), and (B) no interest shall
accrue on such Certificate after such Distribution Date.
Section 4.02. Advances by the Master Servicer; Distribution Reports to the
Trustee.
(a) To the extent described below, the Master Servicer is obligated
to advance its own funds to the Certificate Account to cover any shortfall
between (i) payments scheduled to be received in respect of Mortgage Loans,
and (ii) the amounts actually deposited in the Certificate Account on
account of such payments. The Master Servicer's obligation to make any
advance or advances described in this Section 4.02 is effective only to the
extent that such advance is, in the good faith judgment of the Master
Servicer made on or before the Business Day immediately following the
Withdrawal Date, reimbursable from Insurance Proceeds or Liquidation
Proceeds of the related Mortgage Loans or recoverable as late Monthly
Payments with respect to the related Mortgage Loans or otherwise.
<PAGE> 68
Prior to the close of business on the Business Day immediately
following each Withdrawal Date, the Master Servicer shall determine whether
or not it will make a Monthly P&I Advance on the Business Day prior to the
next succeeding Distribution Date (in the event that the applicable
Servicer fails to make such advances) and shall furnish a written statement
to the Trustee, the Paying Agent, if any, and to any Certificateholder
requesting the same, setting forth the aggregate amount to be distributed
on the next succeeding Distribution Date on account of principal and
interest in respect of the Mortgage Loans, stated separately. In the event
that full scheduled amounts of principal and interest in respect of the
Mortgage Loans shall not have been received by or on behalf of the Master
Servicer prior to such Determination Date and the Master Servicer shall
have determined that a Monthly P&I Advance shall be made in accordance with
this Section 4.02, the Master Servicer shall so specify and shall specify
the aggregate amount of such advance.
In the event that the Master Servicer shall be required to make a
Monthly P&I Advance, it shall on the Business Day prior to the related
Distribution Date either (i) deposit in the Certificate Account an amount
equal to such Monthly P&I Advance, (ii) make an appropriate entry in the
records of the Certificate Account that funds in such account being held
for future distribution or withdrawal have been, as permitted by this
Section 4.02, used by the Master Servicer to make such Monthly P&I Advance,
or (iii) make advances in the form of any combination of (i) and (ii)
aggregating the amount of such Monthly P&I Advance. Any funds being held
for future distribution to Certificateholders and so used shall be replaced
by the Master Servicer by deposit in the Certificate Account on the
Business Day immediately preceding any future Distribution Date to the
extent that funds in the Certificate Account on such Distribution Date with
respect to the Mortgage Loans shall be less than payments to
Certificateholders required to be made on such date with respect to the
Mortgage Loans. Under each Selling and Servicing Contract, the Master
Servicer is entitled to receive from the Custodial Accounts for P&I
established by the Servicers amounts received by the applicable Servicers
on particular Mortgage Loans as late payments of principal and interest or
as Liquidation or Insurance Proceeds and respecting which the Master
Servicer has made an unreimbursed advance of principal and interest. The
Master Servicer is also entitled to receive other amounts from the related
Custodial Accounts for P&I established by the Servicers to reimburse itself
for prior Nonrecoverable Advances respecting Mortgage Loans serviced by
such Servicers. The Master Servicer shall deposit these amounts in the
Investment Account prior to withdrawal pursuant to Section 3.05.
In accordance with Section 3.05, Monthly P&I Advances are reimbursable
to the Master Servicer from cash in the Investment Account or the
Certificate Account to the extent that the Master Servicer shall determine
that any such advances previously made are Nonrecoverable Advances pursuant
to Section 4.03.
(b) Prior to noon New York City time two Business Days prior to each
Distribution Date, the Master Servicer shall provide the Trustee (and the
Company if the Company is no longer acting as Master Servicer) with a
<PAGE> 69
statement in writing of (1) the amount, as applicable, of (i) interest,
(ii) the interest portion, if any, of Realized Losses, (iii) Uncompensated
Interest Shortfall, (iv) scheduled principal, (v) Principal Prepayments,
(vi) the principal portion of Realized Losses, (vii) the Residual
Distribution Amount and (viii) the Excess Liquidation Proceeds to be
distributed to each Class of Certificates on such Distribution Date (such
amounts to be determined in accordance with the definition of "Distribution
Amount," Section 4.01 hereof and other related definitions set forth in
Article I hereof); (2) the applicable Class Principal Balance after giving
effect to such distributions; and (3) the amount of any Special Primary
Insurance Premium payable on such Distribution Date.
Section 4.03. Nonrecoverable Advances. Any advance previously made by a
Servicer pursuant to its Selling and Servicing Contract with respect to a
Mortgage Loan or by the Master Servicer that the Master Servicer shall
determine in its good faith judgment not to be ultimately recoverable from
Insurance Proceeds or Liquidation Proceeds or otherwise with respect to
such Mortgage Loan or recoverable as late Monthly Payments with respect to
such Mortgage Loan shall be a Nonrecoverable Advance. The determination by
the Master Servicer that it or the applicable Servicer has made a
Nonrecoverable Advance or that any advance would constitute a
Nonrecoverable Advance, shall be evidenced by an Officer's Certificate of
the Master Servicer delivered to the Trustee on the Determination Date and
detailing the reasons for such determination. Notwithstanding any other
provision of this Agreement, any insurance policy relating to the Mortgage
Loans, or any other agreement relating to the Mortgage Loans to which the
Company or the Master Servicer is a party, (a) the Master Servicer and each
Servicer shall not be obligated to, and shall not, make any advance that,
after reasonable inquiry and in its sole discretion, the Master Servicer or
such Servicer shall determine would be a Nonrecoverable Advance, and (b)
the Master Servicer and each Servicer shall be entitled to reimbursement
for any advance as provided in Section 3.05(a)(i), (ii) and (iv) of this
Agreement.
Section 4.04. Statements to Certificateholders. With each distribution
from the Certificate Account on a Distribution Date, the Trustee shall send
to each Rating Agency and shall make available to each Certificateholder
the statement required by Section 4.02(b). The Trustee may make available
such statement and certain other information, including, without
limitation, information required to be provided by the Trustee pursuant to
Sections 3.12 and 3.13, to Certificateholders through the Trustee's
Corporate Trust home page on the world wide web. Such web page is currently
located at "corporatetrust.statestreet.com". Mortgage-Backed Securities
information is currently available by clicking the "Investor Information &
Reporting" button and selecting the appropriate transaction. The location
of such web page and the procedures used therein are subject to change from
time to time at the Trustee's discretion.
Upon request by any Certificateholder or Rating Agency or the Trustee,
the Master Servicer shall forward to such Certificateholder or Rating
Agency and the Trustee and the Company (if the Company is no longer acting
as Master Servicer) an additional report which sets forth with respect to
<PAGE> 70
the Mortgage Loans:
(a) The number and aggregate Principal Balance of the Mortgage
Loans delinquent one, two and three months or more;
(b) The (i) number and aggregate Principal Balance of Mortgage
Loans with respect to which foreclosure proceedings have been
initiated, and (ii) the number and aggregate book value of Mortgaged
Properties acquired through foreclosure, deed in lieu of foreclosure
or other exercise of rights respecting the Trustee's security interest
in the Mortgage Loans;
(c) The amount of the Special Hazard Coverage available to the
Senior Certificates remaining as of the close of business on the
applicable Determination Date;
(d) The amount of the Bankruptcy Coverage available to the
Senior Certificates remaining as of the close of business on the
applicable Determination Date;
(e) The amount of the Fraud Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date; and
(f) The cumulative amount of Realized Losses allocated to the
Certificates since the Cut-Off Date.
Upon request by any Certificateholder, the Master Servicer, as soon as
reasonably practicable, shall provide the requesting Certificateholder with
such information as is necessary and appropriate, in the Master Servicer's
sole discretion, for purposes of satisfying applicable reporting
requirements under Rule 144A of the Securities Act.
The Company may make available any reports, statements or other
information to Certificateholders through the Company's home page on the
world wide web. Such web page is located at "www.pncmsc.com" and
information is available by clicking on "Investor Information."
ARTICLE V
The Certificates
Section 5.01. The Certificates.
(a) The Certificates shall be substantially in the forms set forth in
Exhibit A with the additional insertion from Exhibit H attached hereto, and
shall be executed by the Trustee, authenticated by the Trustee (or any duly
appointed Authenticating Agent) and delivered (i) upon and pursuant to the
order of the Company and (ii) upon receipt by the Trustee of the documents
specified in Section 2.01. The Certificates shall be issuable in Authorized
Denominations evidencing Percentage Interests. Certificates shall be
executed by manual or facsimile signature on behalf of the Trustee by
<PAGE> 71
authorized officers of the Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were at the time of execution the
proper officers of the Trustee shall bind the Trustee, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Certificates or did not hold such
offices at the date of such Certificates. No Certificate shall be entitled
to any benefit under this Agreement, or be valid for any purpose, unless
there appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by the Trustee or
any Authenticating Agent by manual signature, and such certificate 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.
(b) The following definitions apply for purposes of this Section
5.01: "Disqualified Organization" means any Person which is not a Permitted
Transferee, but does not include any "Pass-Through Entity" which owns or
holds a Residual Certificate and of which a Disqualified Organization,
directly or indirectly, may be a stockholder, partner or beneficiary; "Pass-
Through Entity" means any regulated investment company, real estate
investment trust, common trust fund, partnership, trust or estate, and any
organization to which Section 1381 of the Code applies; "Ownership
Interest" means, with respect to any Residual Certificate, any ownership or
security interest in such Residual Certificate, including any interest in a
Residual Certificate as the Holder thereof and any other interest therein
whether direct or indirect, legal or beneficial, as owner or as pledgee;
"Transfer" means any direct or indirect transfer or sale of, or directly or
indirectly transferring or selling any Ownership Interest in a Residual
Certificate; and "Transferee" means any Person who is acquiring by Transfer
any Ownership Interest in a Residual Certificate.
(c) Restrictions on Transfers of the Residual Certificates to
Disqualified Organizations are set forth in this Section 5.01(c).
Each Person who has or who acquires any Ownership Interest in a
Residual 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 authorized the Trustee or its
designee under clause (iii)(A) below to deliver payments to a Person
other than such Person and to negotiate the terms of any mandatory
sale under clause (iii)(B) below and to execute all instruments of
transfer and to do all other things necessary in connection with any
such sale. The rights of each Person acquiring any Ownership Interest
in a Residual Certificate are expressly subject to the following
provisions:
(A) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
<PAGE> 72
Ownership Interest in a Residual Certificate to a U.S. Person,
the Trustee shall require delivery to it, and shall not register
the Transfer of any Residual Certificate until its receipt of (1)
an affidavit and agreement (a "Transferee Affidavit and
Agreement") attached hereto as Exhibit J from the proposed
Transferee, in form and substance satisfactory to the Company,
representing and warranting, among other things, that it is not a
Non-U.S. Person, that such transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual
Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person who is not a Permitted
Transferee, that for so long as it retains its Ownership Interest
in a Residual Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this
Section 5.01(c) and agrees to be bound by them, and (2) a
certificate, attached hereto as Exhibit I, from the Holder
wishing to transfer the Residual Certificate, in form and
substance satisfactory to the Company, representing and
warranting, among other things, that no purpose of the proposed
Transfer is to allow such Holder to impede the assessment or
collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit
and Agreement by a proposed Transferee under clause (B) above, if
the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate agrees by holding or acquiring such
Ownership Interest (i) to require a Transferee Affidavit and
Agreement from any other Person to whom such Person attempts to
transfer its Ownership Interest and to provide a certificate to
the Trustee in the form attached hereto as Exhibit J; (ii) to
obtain the express written consent of the Company prior to any
transfer of such Ownership Interest, which consent may be
withheld in the Company's sole discretion; and (iii) to provide a
certificate to the Trustee in the form attached hereto as Exhibit
I.
The Trustee shall register the Transfer of any Residual
Certificate only if it shall have received the Transferee Affidavit
and Agreement, a certificate of the Holder requesting such transfer in
the form attached hereto as Exhibit J and all of such other documents
as shall have been reasonably required by the Trustee as a condition
to such registration.
(A) If any "disqualified organization" (as defined in Section
860E(e)(5) of the Code) shall become a holder of a Residual
Certificate, then the last preceding Permitted Transferee shall
be restored, to the extent permitted by law, to all rights and
<PAGE> 73
obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. If
any Non-U.S. Person shall become a holder of a Residual
Certificate, then the last preceding holder which is a U.S.
Person shall be restored, to the extent permitted by law, to all
rights and obligations as Holder thereof retroactive to the date
of registration of the Transfer to such Non-U.S. Person of such
Residual Certificate. If a transfer of a Residual Certificate is
disregarded pursuant to the provisions of Treasury Regulations
Section 1.860E-1 or Section 1.860G-3, then the last preceding
Permitted Transferee shall be restored, to the extent permitted
by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such
Residual Certificate. The Trustee shall be under no liability to
any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 5.01(c)
or for making any payments due on such Certificate to the holder
thereof or for taking any other action with respect to such
holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 5.01(c) and to the extent that the retroactive
restoration of the rights of the Holder of such Residual
Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Company shall have
the right, without notice to the Holder or any prior Holder of
such Residual Certificate, to sell such Residual Certificate to a
purchaser selected by the Company on such terms as the Company
may choose. Such purported Transferee shall promptly endorse and
deliver each Residual Certificate in accordance with the
instructions of the Company. Such purchaser may be the Company
itself or any affiliate of the Company. The proceeds of such
sale, net of the commissions (which may include commissions
payable to the Company or its affiliates), expenses and taxes
due, if any, shall be remitted by the Company to such purported
Transferee. The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole discretion of the
Company, and the Company shall not be liable to any Person having
an Ownership Interest in a Residual Certificate as a result of
its exercise of such discretion.
The Company, on behalf of the Trustee, shall make available, upon
written request from the Trustee, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is not a
Permitted Transferee, including the information regarding "excess
inclusions" of such Residual Certificates required to be provided to
the Internal Revenue Service and certain Persons as described in
Treasury Regulation Section 1.860D-1(b)(5), and (B) as a result of any
regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organizations described in
<PAGE> 74
Section 1381 of the Code having as among its record holders at any
time any Person who is not a Permitted Transferee. Reasonable
compensation for providing such information may be required by the
Company from such Person.
The provisions of this Section 5.01 set forth prior to this
Section (v) may be modified, added to or eliminated by the Company and
the Trustee, provided that there shall have been delivered to the
Trustee the following:
(A) written notification from each of the Rating Agencies
to the effect that the modification, addition to or elimination
of such provisions will not cause such Rating Agency to downgrade
its then-current Ratings of the Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Company (as evidenced by a certificate of the
Company), to the effect that such modification, addition to or
absence of such provisions will not cause REMIC I to cease to
qualify as a REMIC and will not create a risk that (1) REMIC I
may be subject to an entity-level tax caused by the Transfer of
any Residual Certificate to a Person which is not a Permitted
Transferee or (2) a Certificateholder or another Person will be
subject to a REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted
Transferee.
The following legend shall appear on all Residual Certificates:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO
THE COMPANY AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT EITHER (A)
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, (B) 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,
(C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), OR (C)
BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR
(D) AN AGENT OF A DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH
TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN
REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A
DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF
NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE
DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
<PAGE> 75
EACH HOLDER OF THE CLASS R CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF
THIS PARAGRAPH.
The Tax Matters Person for REMIC I, while not a Disqualified
Organization, shall be the tax matters person for REMIC I within the
meaning of Section 6231(a)(7) of the Code and Treasury Regulation
Section 1.860F-4(d).
(d) In the case of any ERISA Restricted Certificate presented for
registration in the name of any Person, the Trustee shall require either
(i) an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Trustee and the Company to the effect that the purchase
or holding of an ERISA Restricted Certificate is permissible under
applicable law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and
will not subject the Trustee, the Master Servicer or the Company to any
obligation or liability (including obligations or liabilities under Section
406 of ERISA or Section 4975 of the Code) in addition to those undertaken
in this Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Company or (ii) only in the case of an
ERISA Restricted Certificate that is not a Residual Certificate, an
officer's certificate substantially in the form of Exhibit N attached
hereto acceptable to and in form and substance satisfactory to the Trustee
and the Company, which officer's certificate shall not be an expense of the
Trustee, the Master Servicer or the Company.
(e) No transfer, sale, pledge or other disposition of a Junior
Subordinate Certificate shall be made unless such transfer, sale, pledge or
other disposition is made in accordance with this Section 5.01(e) or
Section 5.01(f); provided that any transfer, sale, pledge or other
disposition of a Junior Subordinate Certificate shall be exempt from the
requirements of this Section 5.01(e) and Section 5.01(f) if each of the
Certificateholder desiring to effect such transfer and such
Certificateholder's transferee are among the following: (i) DLJ Mortgage
Capital, Inc., (ii) Donaldson, Lufkin & Jenrette Securities Corporation and
(iii) DLJ Mortgage Acceptance Corp. Each Person who, at any time, acquires
any ownership interest in any Junior Subordinate Certificate shall be
deemed by the acceptance or acquisition of such ownership interest to have
agreed to be bound by the following provisions of this Section 5.01(e) and
Section 5.01(f), as applicable. No transfer of a Junior Subordinate
Certificate shall be deemed to be made in accordance with this Section
5.01(e) unless such transfer is made pursuant to an effective registration
statement under the Securities Act or unless the Trustee is provided with
the certificates and an Opinion of Counsel, if required, on which the
Trustee may conclusively rely, to the effect that such transfer is exempt
from the registration requirements under the Securities Act, as follows:
In the event that a transfer is to be made in reliance upon an exemption
from the Securities Act, the Trustee shall require, in order to assure
compliance with the Securities Act, that the Certificateholder desiring to
effect such transfer certify to the Trustee in writing, in substantially
the form attached hereto as Exhibit F, the facts surrounding the transfer,
<PAGE> 76
with such modifications to such Exhibit F as may be appropriate to reflect
the actual facts of the proposed transfer, and that the Certificateholder's
proposed transferee certify to the Trustee in writing, in substantially the
form attached hereto as Exhibit G, the facts surrounding the transfer, with
such modifications to such Exhibit G as may be appropriate to reflect the
actual facts of the proposed transfer. If such certificate of the proposed
transferee does not contain substantially the substance of Exhibit G, the
Trustee shall require an Opinion of Counsel that such transfer may be made
without registration, which Opinion of Counsel shall not be obtained at the
expense of the Trustee, the REMIC I Trust Fund or the Company. Such Opinion
of Counsel shall allow for the forwarding, and the Trustee shall forward, a
copy thereof to the Rating Agencies. Notwithstanding the foregoing, any
Junior Subordinate Certificate may be transferred, sold, pledged or
otherwise disposed of in accordance with the requirements set forth in
Section 5.01(f).
(f) To effectuate a Certificate transfer of a Junior Subordinate
Certificate in accordance with this Section 5.01(f), the proposed
transferee of such Certificate must provide the Trustee and the Company
with an investment letter substantially in the form of Exhibit L attached
hereto, which investment letter shall not be an expense of the Trustee or
the Company, and which investment letter states that, among other things,
such transferee (i) is a "qualified institutional buyer" as defined under
Rule 144A, acting for its own account or the accounts of other "qualified
institutional buyers" as defined under Rule 144A, and (ii) is aware that
the proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act provided by Rule 144A.
Notwithstanding the foregoing, the proposed transferee of such Certificate
shall not be required to provide the Trustee or the Company with Annex 1 or
Annex 2 to the form of Exhibit L attached hereto if the Company so consents
prior to each such transfer. Such transfers shall be deemed to have
complied with the requirements of this Section 5.01(f). The Holder of a
Certificate desiring to effect such transfer does hereby agree to indemnify
the Trustee, the Company, and the Certificate Registrar against any
liability that may result if transfer is not made in accordance with this
Agreement.
(g) (i) In the case of any Class A-1 or Class X Certificate
presented for registration in the name of any Person, the prospective
transferee shall be required to provide the Trustee and the Company either
(i) an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Trustee and the Company to the effect that the purchase
and holding of a Class A-1 or Class X Certificate is permissible under
applicable law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and
will not subject the Trustee, the Master Servicer or the Company to any
obligation or liability (including obligations or liabilities under Section
406 of ERISA or Section 4975 of the Code) in addition to those undertaken
in this Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Company or (ii) an officer's
certificate substantially in the form of Exhibit R attached hereto
acceptable to and in form and substance satisfactory to the Trustee and the
<PAGE> 77
Company, which officer's certificate shall not be an expense of the
Trustee, the Master Servicer or the Company.
(ii) Notwithstanding the foregoing, an Opinion of Counsel or
certification as described in Section 5.01(g)(i) above will not be
required with respect to the transfer of any Class A-1 or Class X
Certificate to a Clearing Agency, or for any subsequent transfer of
any interest in a Class A-1 or Class X Certificate for so long as such
Certificate is a Book-Entry Certificate (each such Class A-1 or Class
X Certificate, a "Book-Entry Senior Certificate"). Any transferee of
a Book-Entry Senior Certificate will be deemed to have represented, by
virtue of its acquisition or holding of such Certificate (or interest
therein), that either (a) such transferee is not an employee benefit
or other plan subject to the prohibited transaction provisions of
ERISA or Section 4975 of the Code, or any person (including an
investment manager, a named fiduciary or a trustee of any such plan)
acting, directly or indirectly, on behalf of or purchasing such
Certificate with "plan assets" of any such plan (a "Plan Investor"),
or (b) the acquisition and holding of such Certificate is eligible for
the exemptive relief available under Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 84-14, 91-38, 90-1, 95-60 or 96-
23.
(iii) If any Book-Entry Senior Certificate (or any interest
therein) is acquired or held in violation of the provisions of Section
5.01(g)(ii) above, then the last preceding transferee (i) that is not
a Plan Investor or (ii) whose acquisition and holding of such
Certificate is eligible for the exemptive relief available under PTCE
84-14, 91-38, 90-1, 95-60 or 96-23 shall be restored, to the extent
permitted by law, to all rights and obligations as Beneficial Holder
thereof retroactive to the date of transfer of such Certificate by
such preceding transferee. The Trustee shall be under no liability to
any Person for making any payments due on such Certificate to such
preceding transferee.
(iv) Any purported Beneficial Holder whose acquisition or holding
of any Book-Entry Senior Certificate (or interest therein) was
effected in violation of the restrictions in this Section 5.01(g)
shall indemnify and hold harmless the Company, the Trustee, the Master
Servicer and the Trust from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such
acquisition or holding.
Section 5.02. Certificates Issuable in Classes; Distributions of Principal
and Interest; Authorized Denominations. The aggregate principal amount of
the Certificates that may be authenticated and delivered under this
Agreement is limited to the aggregate Principal Balance of the Mortgage
Loans as of the Cut-Off Date, as specified in the Preliminary Statement to
this Agreement, except for Certificates authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Certificates pursuant to Section 5.03. Such aggregate principal amount
shall be allocated among one or more Classes having designations, types of
<PAGE> 78
interests, initial per annum Certificate Interest Rates, initial Class
Principal Balances and Final Maturity Dates as specified in the Preliminary
Statement to this Agreement. The aggregate Percentage Interest of each
Class of Certificates of which the Class Principal Balance equals zero as
of the Cut-Off Date that may be authenticated and delivered under this
Agreement is limited to 100%. Certificates shall be issued in Authorized
Denominations.
Section 5.03. Registration of Transfer and Exchange of Certificates. The
Trustee shall cause to be maintained at one of its offices or at its
designated agent, a Certificate Register in which there shall be recorded
the name and address of each Certificateholder. Subject to such reasonable
rules and regulations as the Trustee may prescribe, the Certificate
Register shall be amended from time to time by the Trustee or its agent to
reflect notice of any changes received by the Trustee or its agent pursuant
to Section 10.06. The Trustee hereby appoints itself as the initial
Certificate Registrar.
Upon surrender for registration of transfer of any Certificate to the
Trustee at the Corporate Trust Office of the Trustee or at the office of
State Street Bank and Trust Company, N.A., 61 Broadway, New York, New York
10006, Attention: Corporate Trust Window, or such other address or agency
as may hereafter be provided to the Master Servicer in writing by the
Trustee, the Trustee shall execute, and the Trustee or any Authenticating
Agent shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of Authorized
Denominations of like Percentage Interest. At the option of the
Certificateholders, Certificates may be exchanged for other Certificates in
Authorized Denominations of like Percentage Interest, 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,
and the Trustee, or any Authenticating Agent, shall authenticate and
deliver, the Certificates which the Certificateholder making the exchange
is entitled to receive. Every Certificate presented or surrendered for
transfer shall (if so required by the Trustee or any Authenticating Agent)
be duly endorsed by, or be accompanied by a written instrument of transfer
in form satisfactory to the Trustee or any Authenticating Agent and duly
executed by, the Holder thereof or such Holder's attorney duly authorized
in writing.
A reasonable service charge may be made for any such exchange or
transfer of Certificates, and the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any exchange or transfer of Certificates.
All Certificates surrendered for exchange or transfer shall be
cancelled by the Trustee or any Authenticating Agent.
Section 5.04. Mutilated, Destroyed, Lost or Stolen Certificates. If (i)
any mutilated Certificate is surrendered to the Trustee or any
Authenticating Agent, or (ii) the Trustee or any Authenticating Agent
receives evidence to their satisfaction of the destruction, loss or theft
<PAGE> 79
of any Certificate, and there is delivered to the Trustee or any
Authenticating Agent such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the
Trustee or any Authenticating Agent that such Certificate has been acquired
by a bona fide purchaser, the Trustee shall execute and the Trustee or any
Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Percentage Interest. Upon the issuance of any new
Certificate under this Section 5.04, the Trustee or any Authenticating
Agent may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or any
Authenticating Agent) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.04 shall constitute complete and
indefeasible evidence of ownership in the REMIC I Trust Fund as if
originally issued, whether or not the lost or stolen Certificate shall be
found at any time.
Section 5.05. Persons Deemed Owners. The Company, the Master Servicer, the
Trustee and any agent of any of them may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever, and neither the Company, the Master Servicer, the
Trustee, the Certificate Registrar nor any agent of the Company, the Master
Servicer or the Trustee shall be affected by notice to the contrary.
Section 5.06. Temporary Certificates. Upon the initial issuance of the
Certificates, the Trustee may execute, and the Trustee or any
Authenticating Agent shall authenticate and deliver, temporary Certificates
which are printed, lithographed, typewritten or otherwise produced, in any
Authorized Denomination, of the tenor of the definitive Certificates in
lieu of which they are issued and with such variations in form from the
forms of the Certificates set forth as Exhibits A and H hereto as the
Trustee's officers executing such Certificates may determine, as evidenced
by their execution of the Certificates. Notwithstanding the foregoing, the
Certificates may remain in the form of temporary Certificates.
If temporary Certificates are issued, the Trustee shall cause
definitive Certificates to be prepared within ten Business Days after the
Closing Date or as soon as practicable thereafter. After preparation of
definitive Certificates, the temporary Certificates shall be exchangeable
for definitive Certificates upon surrender of the temporary Certificates at
the office or agency of the Trustee to be maintained as provided in Section
5.10 hereof, without charge to the holder. Any tax or governmental charge
that may be imposed in connection with any such exchange shall be borne by
the Master Servicer. Upon surrender for cancellation of any one or more
temporary Certificates, the Trustee shall execute and the Trustee or any
Authenticating Agent shall authenticate and deliver in exchange therefor a
like principal amount of definitive Certificates of Authorized
Denominations. Until so exchanged, the temporary Certificates shall in all
respects be entitled to the same benefits under this Agreement as
definitive Certificates.
<PAGE> 80
Section 5.07. Book-Entry for Book-Entry Certificates. Notwithstanding the
foregoing, the Book-Entry Certificates, upon original issuance, shall be
issued in the form of one or more typewritten Certificates of Authorized
Denomination representing the Book-Entry Certificates, to be delivered to
DTC, the initial Clearing Agency, by, or on behalf of, the Company. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder shall receive a definitive
certificate representing such Beneficial Holder's interest in any Class of
Book-Entry Certificate, except as provided above and in Section 5.09. Each
Book-Entry Certificate shall bear the following legend:
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for registration
of transfer, exchange, or payment, and any Certificate issued is
registered in the name of Cede & Co. or 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.
Unless and until definitive, fully registered Book-Entry Certificates (the
"Definitive Certificates") have been issued to the Beneficial Holders
pursuant to Section 5.09:
(a) the provisions of this Section 5.07 shall be in full force
and effect with respect to the Book-Entry Certificates;
(b) the Master Servicer and the Trustee may deal with the
Clearing Agency for all purposes with respect to the Book-Entry
Certificates (including the making of distributions on the Book-Entry
Certificates) as the sole Certificateholder;
(c) to the extent that the provisions of this Section 5.07
conflict with any other provisions of this Agreement, the provisions
of this Section 5.07 shall control; and
(d) the rights of the Beneficial Holders shall be exercised only
through the Clearing Agency and the DTC Participants and shall be
limited to those established by law and agreements between such
Beneficial Holders and the Clearing Agency and/or the DTC
Participants. Pursuant to the Depositary Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.09, the
initial Clearing Agency will make book-entry transfers among the DTC
Participants and receive and transmit distributions of principal and
interest on the related Class of Book-Entry Certificates to such DTC
Participants.
For purposes of any provision of this Agreement requiring or
<PAGE> 81
permitting actions with the consent of, or at the direction of, Holders of
Book-Entry Certificates evidencing a specified Percentage Interest, such
direction or consent may be given by the Clearing Agency at the direction
of Beneficial Holders owning Book-Entry Certificates evidencing the
requisite Percentage Interest represented by the Book-Entry Certificates.
The Clearing Agency may take conflicting actions with respect to the Book-
Entry Certificates to the extent that such actions are taken on behalf of
the Beneficial Holders.
Section 5.08. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the
related Certificateholders pursuant to Section 5.09, the Trustee shall give
all such notices and communications specified herein to be given to Holders
of the Book-Entry Certificates to the Clearing Agency which shall give such
notices and communications to the related DTC Participants in accordance
with its applicable rules, regulations and procedures.
Section 5.09. Definitive Certificates. If (a) the Master Servicer notifies
the Trustee in writing that the Clearing Agency is no longer willing or
able to discharge properly its responsibilities under the Depositary
Agreement with respect to the Book-Entry Certificates and the Trustee or
the Master Servicer is unable to locate a qualified successor, (b) the
Master Servicer, at its option, advises the Trustee in writing that it
elects to terminate the book-entry system with respect to the Book-Entry
Certificates through the Clearing Agency or (c) after the occurrence of an
Event of Default, Certificateholders holding Book-Entry Certificates
evidencing Percentage Interests aggregating not less than 66% of the
aggregate Class Principal Balance of such Certificates advise the Trustee
and the Clearing Agency through DTC Participants in writing that the
continuation of a book-entry system with respect to the Book-Entry
Certificates through the Clearing Agency is no longer in the best interests
of the Certificateholders with respect to such Certificates, the Trustee
shall notify all Certificateholders of Book-Entry Certificates of the
occurrence of any such event and of the availability of Definitive
Certificates. Upon surrender to the Trustee of the Book-Entry Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Trustee shall execute and the Trustee
or any Authenticating Agent shall authenticate and deliver the Definitive
Certificates. Neither the Company, the Master Servicer 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 for all of the
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable with respect to such
Definitive Certificates, and the Trustee shall recognize the Holders of
Definitive Certificates as Certificateholders hereunder.
Section 5.10. Office for Transfer of Certificates. The Trustee shall
maintain in Massachusetts and in New York, New York, an office or agency
where Certificates may be surrendered for registration of transfer or
<PAGE> 82
exchange. The Corporate Trust Office and State Street Bank and Trust
Company, N.A., 61 Broadway, New York, NY 10006, Attention: Corporate Trust
Window are initially designated for said purposes.
ARTICLE VI
The Company and the Master Servicer
Section 6.01. Liability of the Company and the Master Servicer. The
Company and the Master Servicer shall be liable in accordance herewith only
to the extent of the obligations specifically imposed upon and undertaken
by the Company or the Master Servicer, as applicable, herein.
Section 6.02. Merger or Consolidation of the Company, or the Master
Servicer. Any corporation into which the Company or the Master Servicer may
be merged or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Company or the Master Servicer
shall be a party, or any corporation succeeding to the business of the
Company or the Master Servicer, shall be the successor of the Company or
the Master Servicer hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 6.03. Limitation on Liability of the Company, the Master Servicer
and Others. Neither the Company nor the Master Servicer nor any of the
directors, officers, employees or agents of the Company or the Master
Servicer shall be under any liability to the Trust Fund or the REMIC I
Trust Fund or the Certificateholders for any action taken by such Person or
by a Servicer or for such Person's or Servicer's refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Company, the Master Servicer or any such Person against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless
disregard of duties and obligations hereunder. The Company, the Master
Servicer and any director, officer, employee or agent of the Company or the
Master Servicer may rely in good faith on any document of any kind properly
executed and submitted by any Person respecting any matters arising
hereunder. The Company, the Master Servicer and any director, officer,
employee or agent of the Company or the Master Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability
or expense incurred in connection with any legal action relating to this
Agreement or the Certificates, other than any loss, liability or expense
relating to any Mortgage Loan (other than as otherwise permitted in this
Agreement) or incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Company and the Master
Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service
the Mortgage Loans in accordance with this Agreement and which in its
opinion may involve it in any expense or liability; provided, however, that
the Company or the Master Servicer may in its discretion undertake any such
<PAGE> 83
action which it may deem necessary or desirable with respect to the
Mortgage Loans, this Agreement, the Certificates or the rights and duties
of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities
of the Trust Fund and the Company and the Master Servicer shall be entitled
to be reimbursed therefor out of the Certificate Account, as provided by
Section 3.05.
Section 6.04. The Company and the Master Servicer not to Resign. The
Company shall not resign from the obligations and duties (including,
without limitation, its obligations and duties as initial Master Servicer)
hereby imposed on it except upon determination that its duties hereunder
are no longer permissible under applicable law. Any successor Master
Servicer shall not resign from the obligations and duties hereby imposed on
it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Company or any successor Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a successor
Master Servicer shall have assumed the Master Servicer's responsibilities
and obligations in accordance with Section 7.02 hereof.
If the Company is no longer acting as Master Servicer, then the
successor Master Servicer shall give prompt written notice to the Company
of any information received by such successor Master Servicer which affects
or relates to an ongoing obligation or right of the Company under this
Agreement.
Section 6.05. Trustee Access. The Master Servicer shall afford the Company
and the Trustee, upon reasonable notice, during normal business hours
access to all records maintained by the Master Servicer, in respect of its
rights and obligations hereunder and access to such of its officers as are
responsible for such obligations. Upon reasonable request, the Master
Servicer, shall furnish the Company and the Trustee with its most recent
financial statements (or, for so long as the Company is the Master
Servicer, the most recent consolidated financial statements for the Company
appearing in the audited financial statements of PNC Bank Corp., or the
entity with whose financial statements the financial statements of the
Company are consolidated) and such other information as it possesses, and
which it is not prohibited by law or, to the extent applicable, binding
obligations to third parties with respect to confidentiality from
disclosing, regarding its business, affairs, property and condition,
financial or otherwise.
ARTICLE VII
Default
Section 7.01. Events of Default. (a) In case one or more of the following
Events of Default by the Master Servicer or by a successor Master Servicer
shall occur and be continuing, that is to say:
<PAGE> 84
(i) Any failure by the Master Servicer to deposit into the
Certificate Account any payment required to be deposited therein by
the Master Servicer under the terms of this Agreement which continues
unremedied for a period of ten days after the date upon which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or to the Master
Servicer and the Trustee by the Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the REMIC I
Trust Fund; or
(ii) Failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Master Servicer contained in the
Certificates or in this Agreement which continues unremedied for a
period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Master Servicer by the Trustee, or to the Master Servicer and the
Trustee by the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of the REMIC I Trust Fund; or
(iii) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a trustee
in bankruptcy, conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iv) The Master Servicer shall consent to the appointment of a trustee
in bankruptcy, conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to the Master
Servicer or of or relating to all or substantially all of its
property; or
(v) The Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(vi) Any failure of the Master Servicer to make any Monthly P&I
Advance (other than a Nonrecoverable Advance) which continues
unremedied at the opening of business on the Distribution Date in
respect of which such Monthly P&I Advance was to have been made;
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, either the Trustee, or the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of the REMIC
I Trust Fund, by notice in writing to the Company and the Master Servicer
(and to the Trustee if given by the Certificateholders, in which case such
<PAGE> 85
notice shall set forth evidence reasonably satisfactory to the Trustee that
such Event of Default has occurred and shall not have been remedied) may
terminate all of the rights (other than its right to reimbursement for
advances) and obligations of the Master Servicer, including its right to
the Master Servicing Fee, under this Agreement and in and to the Mortgage
Loans and the proceeds thereof, if any. Such determination shall be final
and binding. On or after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer under this
Agreement, whether with respect to the Certificates or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and
under this Section 7.01; and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to the Trustee for administration by it of all
cash amounts which shall at the time be credited by the Master Servicer to
the Certificate Account or thereafter be received with respect to the
Mortgage Loans.
Notwithstanding the foregoing, if an Event of Default described in
clause (vi) of this Section 7.01(a) shall occur, the Trustee shall, by
notice in writing to the Master Servicer, which may be delivered by
telecopy, immediately suspend all of the rights and obligations of the
Master Servicer thereafter arising under this Agreement, but without
prejudice to any rights it may have as a Certificateholder or to
reimbursement of Monthly P&I Advances and other advances of its own funds,
and the Trustee shall act as provided in Section 7.02 to carry out the
duties of the Master Servicer, including the obligation to make any Monthly
P&I Advance the nonpayment of which was an Event of Default described in
clause (vi) of this Section 7.01(a). Any such action taken by the Trustee
must be prior to the distribution on the relevant Distribution Date. If the
Master Servicer shall within two Business Days following such suspension
remit to the Trustee the amount of any Monthly P&I Advance the nonpayment
of which by the Master Servicer was an Event of Default described in
clause (vi) of this Section 7.01(a), the Trustee, subject to the last
sentence of this paragraph, shall permit the Master Servicer to resume its
rights and obligations as Master Servicer hereunder. The Master Servicer
agrees that it will reimburse the Trustee for actual, necessary and
reasonable costs incurred by the Trustee because of action taken pursuant
to clause (vi) of this Section 7.01(a). The Master Servicer agrees that if
an Event of Default as described in clause (vi) of this Section 7.01(a)
shall occur more than two times in any twelve month period, the Trustee
shall be under no obligation to permit the Master Servicer to resume its
rights and obligations as Master Servicer hereunder.
(b) In case one or more of the following Events of Default by the
Company shall occur and be continuing, that is to say:
<PAGE> 86
(i) Failure on the part of the Company duly to observe or perform in
any material respect any of the covenants or agreements on the part of the
Company contained in the Certificates or in this Agreement which continues
unremedied for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Company by the Trustee, or to the Company and the Trustee by the
Holders of Certificates evidencing Percentage Interests aggregating not
less than 25% of the REMIC I Trust Fund; or
(ii) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a trustee
in bankruptcy, conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Company and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iii) The Company shall consent to the appointment of a trustee in
bankruptcy, conservator or receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Company or of
or relating to all or substantially all of its property; or
(iv) The Company shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of creditors, or voluntarily suspend
payment of its obligations;
then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the REMIC I Trust
Fund, by notice in writing to the Company and the Trustee, may direct the
Trustee in accordance with Section 10.03 to institute an action, suit or
proceeding in its own name as Trustee hereunder to enforce the Company's
obligations hereunder.
(c) In any circumstances in which this Agreement states that
Certificateholders owning Certificates evidencing a certain percentage
Percentage Interest in the REMIC I Trust Fund may take certain action, such
action shall be taken by the Trustee, but only if the requisite percentage
of Certificateholders required under this Agreement for taking like action
or giving like instruction to the Trustee under this Agreement shall have
so directed the Trustee in writing.
Section 7.02. Trustee to Act; Appointment of Successor. On and after the
time the Master Servicer receives a notice of termination pursuant to
Section 7.01, the Trustee shall be the successor in all respects to the
Master Servicer under this Agreement and under the Selling and Servicing
Contracts with respect to the Mortgage Loans in the Mortgage Pool and with
respect to the transactions set forth or provided for herein and shall have
<PAGE> 87
all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto arising after the Master Servicer
receives such notice of termination placed on the Master Servicer by the
terms and provisions hereof and thereof, and shall have the same
limitations on liability herein granted to the Master Servicer; provided,
that the Trustee shall not under any circumstances be responsible for any
representations and warranties or any Purchase Obligation of the Company or
any liability incurred by the Master Servicer at or prior to the time the
Master Servicer was terminated as Master Servicer and the Trustee shall not
be obligated to make a Monthly P&I Advance if it is prohibited by law from
so doing. As compensation therefor, the Trustee shall be entitled to all
funds relating to the Mortgage Loans which the Master Servicer would have
been entitled to retain or to withdraw from the Certificate Account if the
Master Servicer had continued to act hereunder, except for those amounts
due to the Master Servicer as reimbursement for advances previously made or
amounts previously expended and are otherwise reimbursable hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so
act, or shall if it is unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution having a net worth of not less than $10,000,000 as the
successor to the Master Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Pending any such appointment, the Trustee is obligated to act in
such capacity. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall, together with the
compensation to the Trustee, be in excess of that permitted the Master
Servicer hereunder. The Trustee and such successor shall take such actions,
consistent with this Agreement, as shall be necessary to effectuate any
such succession.
Section 7.03. Notification to Certificateholders. Upon any such
termination or appointment of a successor to the Master Servicer, the
Trustee shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register.
ARTICLE VIII
Concerning the Trustee
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement. In case an Event of Default has occurred
(which has not been cured or waived) the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree
of care and skill in its exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
<PAGE> 88
(b) 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 are in the form required by this Agreement;
provided, however, that the Trustee shall not be responsible for the
accuracy or content of any such certificate, statement, opinion, report, or
other order or instrument furnished by the Company or Master Servicer to
the Trustee pursuant to this Agreement.
(c) 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 an Event of Default and after the
curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement,
(ii) 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; and
(iii) The Trustee shall not be personally liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Certificateholders holding Certificates
which evidence Percentage Interests aggregating not less than 25% of
the REMIC I Trust Fund relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
relating to the exercise of any trust or power conferred upon the
Trustee under this Agreement.
(d) Within ten days after the occurrence of any Event of Default
known to the Trustee, the Trustee shall transmit by mail to the Rating
Agencies notice of each Event of Default. Within 90 days after the
occurrence of any Event of Default known to the Trustee, the Trustee shall
transmit by mail to all Certificateholders (with a copy to the Rating
Agencies) notice of each Event of Default, unless such Event of Default
shall have been cured or waived; provided, however, the Trustee shall be
protected in withholding such notice if and so long as a Responsible
Officer of the Trustee in good faith determines that the withholding of
such notice is in the best interests of the Certificateholders; and
provided, further, that in the case of any Event of Default of the
character specified in Section 7.01(i) and Section 7.01(ii) no such notice
to Certificateholders or to the Rating Agencies shall be given until at
least 30 days after the occurrence thereof.
<PAGE> 89
Section 8.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 8.01:
(i) The Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any action taken
or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(iv) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default 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 document, unless requested in writing to do so by the
Holders of Certificates evidencing Percentage Interests aggregating
not less than 25% of the REMIC I Trust Fund; 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, if any, afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to proceeding;
(v) The Trustee may execute the trust or any of the powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys;
(vi) The Trustee shall not be deemed to have knowledge or notice of
any matter, including without limitation an Event of Default, unless
actually known by a Responsible Officer, or unless written notice
thereof referencing this Agreement or the Certificates is received at
the Corporate Trust Office at the address set forth in Section 10.06;
(vii) In no event shall the Trustee be held liable for acts or
omissions of the Master Servicer (excepting the Trustee's own actions
as Master Servicer). No provision of this Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder
(except for the giving of required notices), or in the exercise of any
<PAGE> 90
of its rights or powers, if it shall have reasonable grounds for
believing the repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it; and
(viii) When the Trustee is acting as Master Servicer pursuant to
Section 7.02, and to the extent permitted under applicable law, the
Trustee is hereby authorized, in making or disposing of any investment
permitted hereunder, to deal with itself (in its individual capacity) or
with any one or more of its affiliates, whether it or its affiliate is
acting as an agent of the Trustee or of any third person or dealing as
principal for its own account.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans. The
recitals contained herein (other than those relating to the due
organization, power and authority of the Trustee) and in the Certificates
(other than the execution of, and certificate of authentication on, the
Certificates) shall be taken as the statements of the Company and the
Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or
of the Certificates or any Mortgage Loan. The Trustee shall not be
accountable for the use or application by the Company of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Master Servicer, the Servicers or the
Company in respect of the Mortgage Loans or deposited into the Custodial
Accounts for P&I, any Buydown Fund Account, or the Custodial Accounts for
P&I by any Servicer or into the Investment Account, or the Certificate
Account by the Master Servicer or the Company.
Section 8.04. Trustee May Own Certificates. The Trustee or any agent or
affiliate of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Certificates with the same rights it would
have if it were not Trustee.
Section 8.05. The Master Servicer to Pay Trustee's Fees and Expenses.
Subject to any separate written agreement with the Trustee, the Master
Servicer covenants and agrees to, and the Master Servicer shall, pay the
Trustee from time to time, and the Trustee shall be entitled to payment,
for all services rendered by it in the execution of the trust hereby
created and in the exercise and performance of any of the powers and duties
hereunder or under the Call Option Agreement of the Trustee. Except as
otherwise expressly provided herein, the Master Servicer shall pay or
reimburse the Trustee upon the Trustee's request for all reasonable
expenses and disbursements incurred or made by the Trustee in accordance
with any of the provisions of this Agreement or the Call Option Agreement
(to the extent the Trustee has not been reimbursed therefor by a Call
Option Holder pursuant to Section 11 of the Call Option Agreement) and
indemnify the Trustee from any loss, liability or expense incurred by it
hereunder or thereunder (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 or disbursement as may arise from
its negligence or bad faith. Such obligation shall survive the termination
of this Agreement or the Call Option Agreement or resignation or removal of
<PAGE> 91
the Trustee. The Company shall, at its expense, prepare or cause to be
prepared all federal and state income tax and franchise tax and information
returns relating to the REMIC I Trust Fund required to be prepared or filed
by the Trustee and shall indemnify the Trustee for any liability of the
Trustee arising from any error in such returns.
Section 8.06. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be (i) an institution insured by the FDIC, (ii) a
corporation or association organized and doing business under the laws of
the United States of America or of any state, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by
federal or state authority and (iii) acceptable to the Rating Agencies. If
such corporation or association publishes reports of condition at least
annually, pursuant to law or to the requirements of any aforementioned
supervising or examining authority, then for the purposes of this Section
8.06, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07.
Section 8.07. Resignation and 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 Master Servicer. Upon receiving such notice
of resignation, the Master Servicer 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 shall
have 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 and shall fail to resign after written
request therefor by the Master Servicer, or if at any time the Trustee
shall become incapable of acting, or shall be adjudged 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 Master Servicer may remove the
Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee
so removed, one copy to the successor.
The Holders of Certificates evidencing Percentage Interests
aggregating more than 50% of the REMIC I Trust Fund may at any time remove
the Trustee and appoint a successor trustee by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys in-
fact duly authorized, one complete set of which instruments shall be
delivered to the Master Servicer, one complete set to the Trustee so
<PAGE> 92
removed and one complete set to the successor so appointed.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 8.08. Any expenses associated with the
resignation of the Trustee shall be borne by the Trustee, and any expenses
associated with the removal of the Trustee shall be borne by the Master
Servicer.
Section 8.08. Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the
Master Servicer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee herein. The
predecessor shall deliver to the successor trustee all Mortgage Files,
related documents, statements and all other property held by it hereunder,
and the Master Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be
required for more 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 appointment such successor trustee
shall be eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Master Servicer shall mail notice of the succession
of such trustee hereunder to (i) all Certificateholders at their addresses
as shown in the Certificate Register and (ii) the Rating Agencies. If the
Master Servicer fails to mail such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause
such notice to be mailed.
Section 8.09. Merger or Consolidation of Trustee. Any corporation or
association into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such resulting or
successor corporation shall be eligible under the provisions of Section
8.06, 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 hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of
the REMIC I Trust Fund may at the time be located, the Master Servicer and
<PAGE> 93
the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the REMIC I
Trust Fund and to vest in such Person or Persons, in such capacity, such
title to the REMIC I Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider
necessary or desirable; provided, that the Trustee shall remain liable for
all of its obligations and duties under this Agreement. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to
make such appointment; provided, that the Trustee shall remain liable for
all of its obligations and duties under this Agreement. No co-trustee or
separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no
notice to Certificateholders of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, 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 and severally, except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed by
the Trustee (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the REMIC I Trust Fund or
any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustee(s) and co-
trustee(s), as effectively as if given to each of them. Every instrument
appointing any separate trustee(s) or co-trustee(s) 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.
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
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of its estates, properties, rights, remedies and the trust 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. Authenticating Agents. The Trustee may appoint one or more
Authenticating Agents which shall be authorized to act on behalf of the
Trustee in authenticating Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the
Master Servicer and must be a corporation, trust company or banking
association organized and doing business under the laws of the United
States of America or of any state, having a principal office and place of
business in New York, New York or a principal office and place of business
in Boston, Massachusetts and a place of business in New York, New York,
having a combined capital and surplus of at least $15,000,000, authorized
under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent so long as it shall be eligible in accordance with
the provisions of the first paragraph of this Section 8.11 without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Master Servicer. The
Trustee may, upon prior written approval of the Master Servicer, at any
time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Master
Servicer. Upon receiving a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to
be eligible in accordance with the provisions of the first paragraph of
this Section 8.11, the Trustee may appoint, upon prior written approval of
the Master Servicer, a successor Authenticating Agent, shall give written
notice of such appointment to the Master Servicer and shall mail notice of
such appointment to all Certificateholders. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent.
Any reasonable compensation paid to an Authenticating Agent shall be a
reimbursable expense pursuant to Section 8.05 if paid by the Trustee.
Section 8.12. Paying Agents. The Trustee may appoint one or more Paying
Agents which shall be authorized to act on behalf of the Trustee in making
withdrawals from the Certificate Account, and distributions to
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Certificateholders as provided in Section 4.01(a) and Section 9.01(b) to
the extent directed to do so by the Master Servicer. Wherever reference is
made in this Agreement to the withdrawal from the Certificate Account by
the Trustee, such reference shall be deemed to include such a withdrawal on
behalf of the Trustee by a Paying Agent. Whenever reference is made in this
Agreement to a distribution by the Trustee or the furnishing of a statement
to Certificateholders by the Trustee, such reference shall be deemed to
include such a distribution or furnishing on behalf of the Trustee by a
Paying Agent. Each Paying Agent shall provide to the Trustee such
information concerning the Certificate Account as the Trustee shall request
from time to time. Each Paying Agent must be reasonably acceptable to the
Master Servicer and must be a corporation, trust company or banking
association organized and doing business under the laws of the United
States of America or of any state, having a principal office and place of
business in New York, New York or a principal office and place of business
in Boston, Massachusetts and a place of business in New York, New York,
having a combined capital and surplus of at least $15,000,000, authorized
under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
Any corporation into which any Paying Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which any Paying Agent shall be a
party, or any corporation succeeding to the corporate agency business of
any Paying Agent, shall continue to be the Paying Agent provided that such
corporation after the consummation of such merger, conversion,
consolidation or succession meets the eligibility requirements of this
Section 8.12.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Master Servicer; provided, that the
Paying Agent has returned to the Certificate Account or otherwise
accounted, to the reasonable satisfaction of the Master Servicer, for all
amounts it has withdrawn from the Certificate Account. The Trustee may,
upon prior written approval of the Master Servicer, at any time terminate
the agency of any Paying Agent by giving written notice of termination to
such Paying Agent and to the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time any Paying
Agent shall cease to be eligible in accordance with the provisions of the
first paragraph of this Section 8.12, the Trustee may appoint, upon prior
written approval of the Master Servicer, a successor Paying Agent, shall
give written notice of such appointment to the Master Servicer and shall
mail notice of such appointment to all Certificateholders. Any successor
Paying Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Paying
Agent. Any reasonable compensation paid to any Paying Agent shall be a
reimbursable expense pursuant to Section 8.05 if paid by the Trustee.
ARTICLE IX
Termination
<PAGE> 96
Section 9.01. Termination Upon Repurchase by the Company or Liquidation of
All Mortgage Loans, or at the Election of a 100% Certificateholder.
(a) Except as otherwise set forth in this Article IX, including,
without limitation, the obligation of the Master Servicer to make payments
to Certificateholders as hereafter set forth, the respective obligations
and responsibilities of the Company, the Master Servicer and the Trustee
created hereby shall terminate upon (i) the repurchase by the Company
pursuant to Section 9.01(b) of all Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining in the Trust Fund at a price
equal, after the deduction of related advances, to the sum of (x) the
excess of (A) 100% of the aggregate outstanding Principal Balance of such
Mortgage Loans (other than Liquidated Mortgage Loans) plus accrued interest
at the applicable Pass-Through Rate with respect to such Mortgage Loan
(other than a Liquidated Mortgage Loan) through the last day of the month
of such repurchase, over (B) with respect to any Mortgage Loan which is not
a Liquidated Mortgage Loan, the amount of the Bankruptcy Loss incurred with
respect to such Mortgage Loan as of the date of such repurchase by the
Company to the extent that the Principal Balance of such Mortgage Loan has
not been previously reduced by such Bankruptcy Loss, and (y) the appraised
fair market value as of the effective date of the termination of the trust
created hereby of (A) all property in the Trust Fund which secured a
Mortgage Loan and which was acquired by foreclosure or deed in lieu of
foreclosure after the Cut-Off Date, including related Insurance Proceeds,
and (B) all other property in the Trust Fund, any such appraisal to be
conducted by an appraiser mutually agreed upon by the Company and the
Trustee, (ii) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund or the disposition of all property acquired upon foreclosure in
respect of any Mortgage Loan, and the payment to the Certificateholders of
all amounts required to be paid to them hereunder or (iii) the acquisition
by a 100% Certificateholder pursuant to Section 9.01(d) of all Mortgage
Loans and all property acquired in respect of any Mortgage Loan and any
other assets remaining in the Trust Fund; provided, however, that in no
event shall the trusts created hereby continue beyond the expiration of 21
years from the death of the survivor of the issue of Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James, living on
the date hereof.
(b) On any Distribution Date after the first date on which the
aggregate Principal Balance of the Mortgage Loans is less than the Clean-Up
Call Percentage of the aggregate Principal Balance of the Mortgage Loans as
of the Cut-Off Date, the Company may repurchase the outstanding Mortgage
Loans and any Mortgaged Properties acquired by the Trust Fund at the price
stated in clause (i) of Section 9.01(a). If such right is exercised, the
Company shall provide to the Trustee (and to the Master Servicer, if the
Company is no longer acting as Master Servicer) the written certification
of an officer of the Company (which certification shall include a statement
to the effect that all amounts required to be paid in order to repurchase
the Mortgage Loans have been deposited in the Certificate Account) and the
Trustee shall promptly execute all instruments as may be necessary to
<PAGE> 97
release and assign to the Company the Mortgage Files and any foreclosed
Mortgaged Property pertaining to the Trust Fund.
In no event shall the Company be required to expend any amounts other
than those described in Section 9.01(a) in order to terminate the Trust
Fund or repurchase the Mortgage Loans under this Section 9.01(b).
(c) Notice of any termination (other than any termination by a 100%
Certificateholder pursuant to Section 9.01(d)), specifying the date upon
which the Certificateholders may surrender their Certificates to the
Trustee for payment and cancellation, shall be given promptly by letter
from the Trustee to Certificateholders mailed not less than 30 days prior
to such final distribution, specifying (i) the date upon which final
payment of the Certificates will be made upon presentation and surrender of
Certificates at the office of the Certificate Registrar therein designated
(the "Termination Date"), (ii) the amount of such final payment (the
"Termination Payment") and (iii) that the Record Date otherwise applicable
to the Distribution Date upon which the Termination Date occurs is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Registrar therein specified.
Upon any such notice, the Certificate Account shall terminate subject to
the Master Servicer's obligation to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the Termination
Date, the Company shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and
receive the Termination Payment with respect thereto. If within one year
after the second notice all the Certificates shall not have been
surrendered for cancellation, the Company may take appropriate steps to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain in trust hereunder.
(d) On any Distribution Date after the Distribution Date in April
2005, in the event that all of the outstanding Certificates (other than the
Class R Certificates) are held by a single Person (such Person, a "100%
Certificateholder"), such 100% Certificateholder may, subject to and in
accordance with the provisions of this Section 9.01(d), purchase the
outstanding Mortgage Loans and all property acquired in respect of any
Mortgage Loan and any other assets remaining in the Trust Fund at a
purchase price (the "Mortgage Loan Purchase Price") equal to the sum of (i)
the aggregate Class Principal Balance of all outstanding Classes of
Certificates on the Final Distribution Date (as defined below) (after
giving effect to any distributions of principal and the allocation of the
principal portion of Realized Losses on such date but before giving effect
to the distribution of the Mortgage Loan Purchase Price on such date), (ii)
accrued and unpaid interest on such Classes from the first day of the month
to the date immediately prior to the Final Distribution Date at the
applicable Certificate Interest Rate and (iii) the sum of any Monthly P&I
Advances which have not been reimbursed as of the Final Distribution Date.
<PAGE> 98
The right of the 100% Certificateholder to purchase the outstanding
Mortgage Loans in accordance with this Section 9.01(d) shall be subject to
the condition that, after such purchase, the Master Servicer shall continue
to act as master servicer with respect to the Mortgage Loans pursuant to an
agreement between the Master Servicer and the 100% Certificateholder,
acceptable to the Master Servicer in its reasonable judgment, which
provides, in all material respects, the same economic benefit to the Master
Servicer as this Agreement (including, without limitation, a master
servicing fee with respect to each Mortgage Loan equal to the Master
Servicing Fee payable hereunder).
In order to exercise its right to purchase the outstanding Mortgage
Loans, the 100% Certificateholder shall deliver to the Trustee and the
Company (and to the Master Servicer, if the Company is no longer acting as
Master Servicer) a written notice (the "Purchase Notice"), (i) stating that
the 100% Certificateholder has elected to purchase the Mortgage Loans
pursuant to this Section 9.01(d), (ii) specifying the Distribution Date on
which the 100% Certificateholder shall purchase the Mortgage Loans (the
"Final Distribution Date") and (iii) attaching evidence, reasonably
satisfactory to the Trustee and the Company (and to the Master Servicer, if
the Company is no longer acting as Master Servicer), that the Person
delivering such notice is a 100% Certificateholder. The Purchase Notice
shall be delivered not less than 30 days prior to the Final Distribution
Date. Upon execution by the Master Servicer of the agreement referred to
in the second paragraph of this Section 9.01(d), the Master Servicer shall
deliver to the Trustee an executed acknowledgment to the Purchase Notice.
Not later than two Business Day prior to the Final Distribution Date, the
Master Servicer shall deliver to the Trustee and the 100% Certificateholder
a statement setting forth the amounts specified in clauses (i), (ii) and
(iii) of the definition of "Mortgage Loan Purchase Price". Not later than
one Business Day prior to the Final Distribution Date, the 100%
Certificateholder shall deposit into the Certificate Account the Mortgage
Loan Purchase Price and deliver written certification to the Trustee of
such deposit. Provided that the Trustee shall have such written
certification from the 100% Certificateholder and the Master Servicer's
acknowledgment to the Purchase Notice, the Trustee shall (A) on the Final
Distribution Date (in addition to the other distributions to the
Certificateholders on such Distribution Date made hereunder), distribute
(x) to the 100% Certificateholder the amounts specified in clauses (i) and
(ii) of the definition of "Mortgage Loan Purchase Price" and (y) to the
Master Servicer the amount specified in clause (iii) of such definition and
(B) promptly after the Final Distribution Date, execute all instruments as
may be necessary to release and assign to the 100% Certificateholder the
Mortgage Files and any other assets remaining in the Trust Fund.
Section 9.02. Additional Termination Requirements.
(a) In the event the Company exercises its purchase option as
provided in Section 9.01(b) or the 100% Certificateholder exercises its
purchase option as provided in Section 9.01(d) (such terminating party, the
"Terminating Party"), the REMIC I Trust Fund shall be terminated in
accordance with the following additional requirements, unless the
<PAGE> 99
Terminating Party, at its own expense, obtains for the Trustee an Opinion
of Counsel to the effect that the failure of the REMIC I Trust Fund to
comply with the requirements of this Section 9.02 will not (i) result in
the imposition of taxes on "prohibited transactions" of the REMIC I Trust
Fund as described in Section 860F of the Code, or (ii) cause the REMIC I
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 set forth in
the notice given by the Trustee under Section 9.01(b) (if the Company
is the Terminating Party), or set forth in the notice given by the
100% Certificateholder under Section 9.01(d) (if the 100%
Certificateholder is the Terminating Party), the Tax Matters Person
shall prepare the documentation required and the Tax Matters Person
and the Trustee shall adopt a plan of complete liquidation on behalf
of the REMIC I Trust Fund meeting the requirements of a qualified
liquidation under Section 860F of the Code and any regulations
thereunder, as evidenced by an Opinion of Counsel obtained at the
expense of the Terminating Party, on behalf of the REMIC I Trust Fund;
and
(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 Master
Servicer as agent of the Trustee shall sell all of the assets of the
REMIC I Trust Fund to the Company (if the Company is the Terminating
Party) for cash in the amount specified in Section 9.01(a), or to the
100% Certificateholder (if the 100% Certificateholder is the
Terminating Party) for cash in the amount specified in Section
9.01(d).
(b) By its acceptance of any Residual Certificate, the Holder thereof
hereby agrees to authorize the Tax Matters Person and the Trustee to adopt
such a plan of complete liquidation upon the written request of the Tax
Matters Person and the Trustee and to take such other action in connection
therewith as may be reasonably requested by the Tax Matters Person or the
Trustee.
Section 9.03. Trusts Irrevocable. Except as expressly provided herein, the
trusts created hereby are irrevocable.
ARTICLE X
Miscellaneous Provisions
Section 10.01. Amendment.
(a) This Agreement may be amended from time to time by the Master
Servicer, the Company and the Trustee, without the consent of any of the
Certificateholders: (i) to cure any ambiguity; (ii) to correct or
supplement any provision herein which may be defective or inconsistent with
any other provisions herein; (iii) to comply with any requirements imposed
by the Code or any regulations thereunder; (iv) to correct the description
<PAGE> 100
of any property at any time included in the REMIC I Trust Fund, or to
assure the conveyance to the Trustee of any property included in the REMIC
I Trust Fund; and (v) pursuant to Section 5.01(c)(v). No such amendment
(other than one entered into pursuant to clause (iii) of the preceding
sentence) shall adversely affect in any material respect the interest of
any Certificateholder. Prior to entering into any amendment without the
consent of Certificateholders pursuant to this paragraph, the Trustee may
require an Opinion of Counsel to the effect that such amendment is
permitted under this paragraph. The placement of an "original issue
discount" legend on, or any change required to correct any such legend
previously placed on a Certificate shall not be deemed any amendment to
this Agreement.
(b) This Agreement may also be amended from time to time by the
Master Servicer, the Company and the Trustee with the consent of the
Holders of Certificates evidencing Percentage Interests aggregating not
less than 66% of the REMIC I Trust Fund 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 Certificateholders; provided, however, that no such amendment shall,
without the consent of the Holder of each Certificate affected thereby (i)
reduce in any manner the amount of, or delay the timing of, distributions
of principal or interest required to be made hereunder or reduce the
Certificateholder's Percentage Interest, the Certificate Interest Rate or
the Termination Payment with respect to any of the Certificates, (ii)
reduce the percentage of Percentage Interests specified in this Section
10.01 which are required to amend this Agreement, (iii) create or permit
the creation of any lien against any part of the REMIC I Trust Fund, or
(iv) modify any provision in any way which would permit an earlier
retirement of the Certificates.
Promptly after the execution of any such amendment, the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder. Any failure to provide such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of
any such amendment.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Section 10.02. Recordation of Agreement. 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 the
comparable jurisdictions in which any Mortgaged Property is situated, and
in any other appropriate public recording office or elsewhere, such
recordation to be effected by the Company and at its expense on direction
by the Trustee, but only upon direction accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially
<PAGE> 101
affects the interests of the Certificateholders. Without limiting the
foregoing, the Trustee shall make the filings required by Chapter 182 of
the Massachusetts General Laws.
Section 10.03. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the REMIC I Trust Fund, nor 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 REMIC I
Trust Fund, nor otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote or in any manner
otherwise to control the operation and management of the REMIC I Trust Fund
or the obligations of the parties hereto (except as provided in Section
5.09, Section 7.01, Section 8.01, Section 8.02, Section 8.07, Section 10.01
and this Section 10.03), 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 or by availing of
any provision of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless
such Holder previously shall have given to the Trustee a written notice of
default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of the REMIC I Trust Fund 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 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action,
suit or proceeding. However, the Trustee is under no obligation to exercise
any of the extraordinary trusts or powers vested in it by this Agreement or
to make any investigation of matters arising hereunder or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders unless such
Certificateholders have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby. 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 or by availing of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other of such Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and
<PAGE> 102
enforcement of the provisions of this Section 10.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 10.04. Access to List of Certificateholders. The Certificate
Registrar shall furnish or cause to be furnished to the Trustee, within 30
days after receipt of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Certificateholders as of the most recent Record Date for payment of
distributions to such Certificateholders.
If three or more Certificateholders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and such application states
that the applicants desire to communicate with other Certificateholders
with respect to their rights under this Agreement or under the Certificates
and is accompanied by a copy of the communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days
after the receipt of such list from the Certificate Registrar, afford such
applicants access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If such a list is as of a date more
than 90 days prior to the date of receipt of such applicants' request, the
Trustee shall promptly request from the Certificate Registrar a current
list as provided above, and shall afford such applicants access to such
list promptly upon receipt.
Every Certificateholder, by receiving and holding the same, agrees
with the Master Servicer and the Trustee that neither the Master Servicer
nor the Trustee shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 10.05. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations,
rights and remedies of the parties hereunder shall be determined in
accordance with such laws without giving effect to conflict of laws
principles.
Section 10.06. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered or certified mail to the
applicable Notice Address. Notices to the Rating Agencies shall also be
deemed to have been duly given if mailed by first class mail, postage
prepaid, to the above listed addresses of the Rating Agencies. 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. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 10.07. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for
<PAGE> 103
any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.08. Counterpart Signatures. For the purpose of facilitating the
recordation of this Agreement as herein provided and for other purposes,
this Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same instrument.
Section 10.09. Benefits of Agreement. Nothing in this Agreement or in any
Certificate, expressed or implied, shall give to any Person, other than the
parties hereto and their respective successors hereunder, any separate
trustee or co-trustee appointed under Section 8.10 and the
Certificateholders, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
Section 10.10. Notices and Copies to Rating Agencies.
(a) The Trustee shall notify the Rating Agencies of the occurrence of
any of the following events, in the manner provided in Section 10.06:
(i) the occurrence of an Event of Default pursuant to Section 7.01,
subject to the provisions of Section 8.01(d);
(ii) the appointment of a successor Master Servicer pursuant to
Section 7.02;
(b) The Master Servicer shall notify the Rating Agencies of the
occurrence of any of the following events, or in the case of clauses (iii),
(iv), (vii) and (viii) promptly upon receiving notice thereof, in the
manner provided in Section 10.06:
(i) any amendment of this Agreement pursuant to Section 10.01;
(ii) the appointment of a successor Trustee pursuant to Section 8.08;
(iii) the filing of any claim under or the cancellation or modifica-
tion of any fidelity bond and errors and omissions coverage pursuant to
Section 3.01 and Section 3.06 with respect to the Master Servicer or
any Servicer;
(iv) any change in the location of the Certificate Account, any
Custodial Account for P&I or any Custodial Account for Reserves;
(v) the repurchase of any Mortgage Loan pursuant to a Purchase
Obligation or as permitted by this Agreement, the repurchase of the
outstanding Mortgage Loans pursuant to Section 9.01(b) or the purchase
of the outstanding Mortgage Loans pursuant to Section 9.01(d);
<PAGE> 104
(vi) the occurrence of the final Distribution Date or the termination
of the trust pursuant to Section 9.01(a)(ii);
(vii) the failure of the Master Servicer to make a Monthly P&I Advance
following a determination on the Determination Date that the Master
Servicer would make such advance pursuant to Section 4.02; and
(viii) the failure of the Master Servicer to make a determination on
the Determination Date regarding whether it would make a Monthly P&I
Advance when a shortfall exists between (x) payments scheduled to be
received in respect of the Mortgage Loans and (y) the amounts actually
deposited in the Certificate Account on account of such payments,
pursuant to Section 4.02.
The Master Servicer shall provide copies of the statements pursuant to
Section 4.02, Section 4.06, Section 3.12, Section 3.13 or Section 3.15 or
any other statements or reports to the Rating Agencies in such time and
manner that such statements or determinations are required to be provided
to Certificateholders. With respect to the reports described in the second
paragraph of Section 4.05, the Master Servicer shall provide such reports
to the Rating Agencies in respect of each Distribution Date, without regard
to whether any Certificateholder or the Trustee has requested such report
for such Distribution Date.
IN WITNESS WHEREOF, the Company and the Trustee have caused their
names to be signed hereto by their respective officers, thereunto duly
authorized, and their respective seals, duly attested, to be hereunto
affixed, all as of the day and year first above written.
PNC MORTGAGE SECURITIES CORP.
By: /s/Michael A. Aaknes
------------------------
Its: Vice President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/David Duclos
----------------------
Its: Vice President
<PAGE> 105
ACKNOWLEDGEMENT OF CORPORATION
STATE OF ILLINOIS )
) SS.
COUNTY OF LAKE )
On this 29th day of September 2000 before me, a Notary Public in and
for said State, personally appeared Michael A. Aaknes, known to me to be
the Vice President of PNC MORTGAGE SECURITIES CORP., one of the
corporations 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
pursuant to its By-Laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in the certificate first above written.
/s/Laura A. Kelsey
---------------------
Notary Public
(SEAL)
ACKNOWLEDGEMENT
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF SUFFOLK )
On this 29th day of September 2000 before me, a Notary Public in and
for said State, personally appeared David Duclos, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
Signature /s/Maryellen Hunter (SEAL)
------------------------------------
<PAGE> 106
Exhibit A
CUSIP 69348R A63
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-1
Evidencing a Percentage Interest in a trust fund whose assets consist of,
among other things, a pool of conventional one- to four-family mortgage
loans formed and administered by
PNC MORTGAGE SECURITIES CORP.
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended. The issue date of this Certificate is September 29, 2000.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or 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.
NO TRANSFER OF THIS CLASS A-1 CERTIFICATE WILL BE MADE UNLESS THE TRUSTEE
HAS RECEIVED EITHER (I) AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE COMPANY TO THE EFFECT THAT
THE PURCHASE AND HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND
WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN
IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY OR (II) AN OFFICER'S
CERTIFICATE IN THE FORM DESCRIBED IN THE POOLING AGREEMENT.
NOTWITHSTANDING THE FOREGOING PARAGRAPH, WITH RESPECT TO THE TRANSFER OF
THIS CLASS A-1 CERTIFICATE TO DTC OR ANY OTHER CLEARING AGENCY OR ANY
SUBSEQUENT TRANSFER OF ANY INTEREST IN THIS CERTIFICATE FOR SO LONG AS THIS
CERTIFICATE IS HELD BY DTC OR ANY OTHER CLEARING AGENCY, (I) NEITHER AN
OPINION OF COUNSEL NOR AN OFFICER'S CERTIFICATE, EACH AS DESCRIBED IN THE
FOREGOING PARAGRAPH, SHALL BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS
SHALL APPLY:
1. ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE
REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST HEREIN), THAT EITHER (A) IT IS NOT AN
<PAGE> 107
EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF
ANY SUCH PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR
PURCHASING THIS CERTIFICATE WITH "PLAN ASSETS" OF ANY SUCH PLAN (A
"PLAN INVESTOR"), OR (B) THE ACQUISITION AND HOLDING OF THIS
CERTIFICATE IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 84-
14, 91-38, 90-1, 95-60 OR 96-23; AND
2. IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR
HELD IN VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN
THE LAST PRECEDING TRANSFEREE (I) THAT IS NOT A PLAN INVESTOR OR (II)
WHOSE ACQUISITION AND HOLDING OF THIS CERTIFICATE IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 84-14, 91-38, 90-1, 95-60 OR 96-
23 SHALL BE RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS
AND OBLIGATIONS AS BENEFICIAL HOLDER THEREOF RETROACTIVE TO THE DATE
OF TRANSFER OF THIS CERTIFICATE BY SUCH PRECEDING TRANSFEREE. THE
TRUSTEE SHALL BE UNDER NO LIABILITY TO ANY PERSON FOR MAKING ANY
PAYMENTS DUE ON THIS CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
ANY PURPORTED BENEFICIAL HOLDER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE
RESTRICTIONS IN SECTION 5.01(g) OF THE POOLING AGREEMENT SHALL INDEMNIFY
AND HOLD HARMLESS THE COMPANY, THE TRUSTEE, THE MASTER SERVICER AND THE
TRUST FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES
INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
Series 2000-7 Portion of the Class A-1 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate: $152,672,000.00
Class A-1 Certificate Interest Rate: Variable
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: May 25, 2040
Class A-1 Principal Balance
as of the Cut-Off Date: $152,672,000.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R A71
MORTGAGE PASS-THROUGH CERTIFICATE
Class X
<PAGE> 108
Evidencing a Percentage Interest in a trust fund whose assets consist of,
among other things, a pool of conventional one- to four-family mortgage
loans formed and administered by
PNC MORTGAGE SECURITIES CORP.
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended. The issue date of this Certificate is September 29, 2000.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or 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.
NO TRANSFER OF THIS CLASS X CERTIFICATE WILL BE MADE UNLESS THE TRUSTEE HAS
RECEIVED EITHER (I) AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE COMPANY TO THE EFFECT THAT
THE PURCHASE AND HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND
WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN
IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY OR (II) AN OFFICER'S
CERTIFICATE IN THE FORM DESCRIBED IN THE POOLING AGREEMENT.
NOTWITHSTANDING THE FOREGOING PARAGRAPH, WITH RESPECT TO THE TRANSFER OF
THIS CLASS X CERTIFICATE TO DTC OR ANY OTHER CLEARING AGENCY OR ANY
SUBSEQUENT TRANSFER OF ANY INTEREST IN THIS CERTIFICATE FOR SO LONG AS THIS
CERTIFICATE IS HELD BY DTC OR ANY OTHER CLEARING AGENCY, (I) NEITHER AN
OPINION OF COUNSEL NOR AN OFFICER'S CERTIFICATE, EACH AS DESCRIBED IN THE
FOREGOING PARAGRAPH, SHALL BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS
SHALL APPLY:
1. ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE
REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST HEREIN), THAT EITHER (A) IT IS NOT AN
EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF
ANY SUCH PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR
PURCHASING THIS CERTIFICATE WITH "PLAN ASSETS" OF ANY SUCH PLAN (A
"PLAN INVESTOR"), OR (B) THE ACQUISITION AND HOLDING OF THIS
CERTIFICATE IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
<PAGE> 109
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 84-
14, 91-38, 90-1, 95-60 OR 96-23; AND
2. IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR
HELD IN VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN
THE LAST PRECEDING TRANSFEREE (I) THAT IS NOT A PLAN INVESTOR OR (II)
WHOSE ACQUISITION AND HOLDING OF THIS CERTIFICATE IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 84-14, 91-38, 90-1, 95-60 OR 96-
23 SHALL BE RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS
AND OBLIGATIONS AS BENEFICIAL HOLDER THEREOF RETROACTIVE TO THE DATE
OF TRANSFER OF THIS CERTIFICATE BY SUCH PRECEDING TRANSFEREE. THE
TRUSTEE SHALL BE UNDER NO LIABILITY TO ANY PERSON FOR MAKING ANY
PAYMENTS DUE ON THIS CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
ANY PURPORTED BENEFICIAL HOLDER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE
RESTRICTIONS IN SECTION 5.01(g) OF THE POOLING AGREEMENT SHALL INDEMNIFY
AND HOLD HARMLESS THE COMPANY, THE TRUSTEE, THE MASTER SERVICER AND THE
TRUST FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES
INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
Series 2000-7 Portion of the Class X Notional Amount
as of the Cut-Off Date Evidenced by this
Certificate: $163,723,488.00
Class X Certificate Interest Rate: Variable.
The Class X Certificate Interest Rate shall be
applied to the Class X Notional Amount.
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: May 25, 2040
Class X Principal Balance as of the Cut-Off Date: $0.00
Class X Notional Amount as of the Cut-Off Date: $163,723,488.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R A89
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-1
Evidencing a Percentage Interest in a trust fund whose assets consist of,
among other things, a pool of conventional one- to four-family mortgage
loans formed and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 29,
2000.
<PAGE> 110
IN THE CASE OF ANY CLASS B-1 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-1 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
The Class B-1 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-7 Portion of the Class B-1 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$_______________
Class B-1 Certificate Interest Rate: Variable
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: May 25, 2040
Class B-1 Principal Balance
as of the Cut-Off Date: $4,093,000.00
_____________________
Registered Owner
Certificate No. _________
Exhibit A
CUSIP 69348R A97
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-2
Evidencing a Percentage Interest in a trust fund whose assets consist of,
among other things, a pool of conventional one- to four-family mortgage
loans formed and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 29,
2000.
IN THE CASE OF ANY CLASS B-2 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
<PAGE> 111
CLASS B-2 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
The Class B-2 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-7 Portion of the Class B-2 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$_______________
Class B-2 Certificate Interest Rate: Variable
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: May 25, 2040
Class B-2 Principal Balance
as of the Cut-Off Date: $2,046,600.00
_____________________
Registered Owner
Certificate No. _________
Exhibit A
CUSIP 69348R B21
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-3
Evidencing a Percentage Interest in a trust fund whose assets consist of,
among other things, a pool of conventional one- to four-family mortgage
loans formed and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 29,
2000.
IN THE CASE OF ANY CLASS B-3 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-3 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
<PAGE> 112
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
The Class B-3 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-7 Portion of the Class B-3 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$_______________
Class B-3 Certificate Interest Rate: Variable
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: May 25, 2040
Class B-3 Principal Balance
as of the Cut-Off Date: $1,637,200.00
_____________________
Registered Owner
Certificate No. _________
Exhibit A
CUSIP 69348R B47
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-4
Evidencing a Percentage Interest in a trust fund whose assets consist of,
among other things, a pool of conventional one- to four-family mortgage
loans formed and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 29,
2000.
IN THE CASE OF ANY CLASS B-4 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-4 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
<PAGE> 113
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND EXCEPT IN ACCORDANCE WITH SECTION 5.01(e)
OF THE POOLING AGREEMENT.
The Class B-4 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-7 Portion of the Class B-4 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$_______________
Class B-4 Certificate Interest Rate: Variable
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: May 25, 2040
Class B-4 Principal Balance
as of the Cut-Off Date: $1,555,400.00
_____________________
Registered Owner
Certificate No. _________
Exhibit A
CUSIP 69348R B54
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-5
Evidencing a Percentage Interest in a trust fund whose assets consist of,
among other things, a pool of conventional one- to four-family mortgage
loans formed and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 29,
2000.
IN THE CASE OF ANY CLASS B-5 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
<PAGE> 114
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-5 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND EXCEPT IN ACCORDANCE WITH SECTION 5.01(e)
OF THE POOLING AGREEMENT.
The Class B-5 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-7 Portion of the Class B-5 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$818,600.00
Class B-5 Certificate Interest Rate: Variable
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: May 25, 2040
Class B-5 Principal Balance
as of the Cut-Off Date: $818,600.00
_____________________
Registered Owner
Exhibit A
CUSIP 69348R B62
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-6
Evidencing a Percentage Interest in a trust fund whose assets consist of,
among other things, a pool of conventional one- to four-family mortgage
loans formed and administered by
PNC MORTGAGE SECURITIES CORP
This Certificate represents ownership of a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined in Sections
860G and 860D, respectively, of the Internal Revenue Code of 1986, as
amended (the "Code"). The issue date of this Certificate is September 29,
<PAGE> 115
2000.
IN THE CASE OF ANY CLASS B-6 CERTIFICATE PRESENTED FOR REGISTRATION IN
THE NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE, EXCEPT AS OTHERWISE
SET FORTH IN SECTION 5.01(d) OF THE POOLING AGREEMENT, AN OPINION OF
COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A
CLASS B-6 CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT
THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND EXCEPT IN ACCORDANCE WITH SECTION 5.01(e)
OF THE POOLING AGREEMENT.
The Class B-6 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 2000-7 Portion of the Class B-6 Principal
Balance as of the Cut-Off Date Evidenced
by this Certificate:
$900,638.01
Class B-6 Certificate Interest Rate: Variable
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: May 25, 2040
Class B-6 Principal Balance
as of the Cut-Off Date: $900,638.01
_____________________
Registered Owner
Exhibit A
CUSIP 69348R B39
MORTGAGE PASS-THROUGH CERTIFICATE
Class R
Evidencing a Percentage Interest in certain distributions with respect to a
pool of conventional one- to four-family mortgage loans formed and
administered by
<PAGE> 116
PNC MORTGAGE SECURITIES CORP.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
COMPANY AND THE CERTIFICATE REGISTRAR THAT (1) SUCH TRANSFEREE IS NOT
EITHER (A) 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, (B) 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, (C) ANY ORGANIZATION DESCRIBED
IN SECTION 1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFER
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE
CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF
ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R CERTIFICATE BY
ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
IN THE CASE OF ANY CLASS R CERTIFICATE PRESENTED FOR REGISTRATION IN THE
NAME OF ANY PERSON, THE TRUSTEE SHALL REQUIRE AN OPINION OF COUNSEL
ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE
COMPANY TO THE EFFECT THAT THE PURCHASE OR HOLDING OF A CLASS R CERTIFICATE
IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-
EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
CODE AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY
TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE TRUSTEE, THE MASTER SERVICER, THE REMIC I TRUST FUND OR
THE COMPANY.
Solely for U.S. federal income tax purposes, this Certificate represents a
"residual interest" in a "real estate mortgage investment conduit," as
those terms are defined in Sections 860G and 860D, respectively, of the
Internal Revenue Code of 1986, as amended.
Series 2000-7 Percentage Interest evidenced by this
Class R Certificate in the distributions
to be made with respect to the Class R
Certificates: %
Class R Certificate Interest Rate:
<PAGE> 117
Variable. Additionally, the Class R
Certificates are entitled to Excess
Liquidation Proceeds and the Residual
Distribution Amount as defined in the
Pooling Agreement.
Cut-Off Date: September 1, 2000
First Distribution Date: October 25, 2000
Last Scheduled Distribution Date: May 25, 2040
Class R Principal Balance as of the Cut-Off Date: $50.00
__________________
Registered Owner
Certificate No. _________
Exhibit B
[Reserved]
Exhibit C
[Reserved]
Exhibit D
Mortgage Loan Schedule
Copies of the Mortgage Loan Schedule (which has been intentionally
omitted from this filing) may be obtained from PNC Mortgage Securities
Corp. or State Street Bank and Trust Company by contacting,
in the case of PNC Mortgage Securities Corp.,
Richie Moore
Master Servicing Department
PNC Mortgage Securities Corp.
75 N. Fairway Drive
Vernon Hills, Illinois 60061
Telephone: (847) 549-3683
Facsimile: (847) 549-3681
in the case of State Street Bank and Trust Company
David Duclos
State Street Corporation
Global Investor Services Group
Corporate Trust
2 Avenue de Lafayette
<PAGE> 118
Boston, Massachusetts 02111-1724
Telephone: (617) 662-1314
Facsimile: (617) 662-1435
Exhibit E
SELLING AND SERVICING
CONTRACT
This Selling and Servicing Contract (this "Agreement") is made and entered
into by PNC Mortgage Securities Corp. and its successors and assigns ("PNC
Mortgage") and the entity identified below and its successors and assigns
(the "Company").
WITNESSETH:
WHEREAS, this Company wishes to sell first lien residential mortgage
loans to, and service first lien residential mortgage loans on behalf of,
PNC Mortgage; and
WHEREAS, the Company has submitted a Seller Application to PNC
Mortgage and has been approved by PNC Mortgage for participation in the PNC
Mortgage Purchase Programs; and
WHEREAS, the Company has received and reviewed the PNC Mortgage
Purchase Programs Seller Guide (the "Seller Guide"), as well as the PNC
Mortgage Servicing Guide (the "Servicing Guide" and, together with the
Seller Guide, the "Guides"), and understands each and every provision
thereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, PNC Mortgage and the Company hereby agree as
follows:
1. Guides. The Guides, which set forth the terms and conditions
under which PNC Mortgage may elect to purchase mortgage loans from the
Company, and the Company shall service mortgage loans on behalf of PNC
Mortgage, are a supplement to this Agreement and such Guides, as may be
amended or supplemented from time to time by PNC Mortgage, are incorporated
into this Agreement in full by reference and made a part hereof as fully as
if set forth at length herein. All capitalized terms used and not defined
herein have the meanings ascribed to them in the Guides.
2. Company's Duties. The Company shall diligently perform all
duties incident to the origination, sale and servicing of the mortgage
<PAGE> 119
loans subject to this Agreement. In the performance of its servicing
duties, the Company shall exercise the same degree of care it exercises
when servicing mortgage loans for its own account, but in no event shall
the Company exercise less care than a reasonable prudent servicer would
exercise under similar circumstances. In addition, the Company shall
comply with all of the provisions of the Guides and with all other
requirements and instructions of PNC Mortgage. The Company shall perform
such duties at its sole expense, except as otherwise expressly provided in
the Guides.
3. Representations, Warranties and Covenants of the Company;
Remedies of PNC Mortgage. With respect to each mortgage loan sold by the
Company to PNC Mortgage pursuant to the terms of this Agreement, the
Company shall make all of the representations, warranties and covenants set
forth in the Guide and, in the event of the breach of any of such
representations, warranties and covenants, PNC Mortgage shall have all of
the remedies available at law or in equity, as well as all of the remedies
set forth in the Guide, including, but not limited to, repurchase and
indemnification. The representations and warranties made by the Company
with respect to any mortgage loan subject to this Agreement, as well as the
remedies available to PNC Mortgage upon the breach thereof, shall survive:
(a) any investigation regarding the mortgage loan conducted by PNC
Mortgage, its assignees or designees, (b) the liquidation of the mortgage
loan, (c) the purchase of the mortgage loan by PNC Mortgage, its assignee
or designee, (d) the repurchase of the mortgage loan by the Company and (e)
the termination of this Agreement.
4. Compensation. The Company shall be compensated for its services
hereunder as specified in the Guides.
5. No Assignment. This Agreement may not be assigned by the Company
without the prior written consent of PNC Mortgage. The Company hereby
consents to the assignment by PNC Mortgage of all or any part of its rights
and obligations under this Agreement to any affiliate designated by PNC
Mortgage. Any other transfer by PNC Mortgage will be allowed and be
effective upon written notice by PNC Mortgage to the Company.
6. Prior Agreements. This Agreement supersedes any prior agreements
and understandings between PNC Mortgage and the Company governing the
subject matter hereof; provided, however, the Company shall not be released
from any responsibility or liability that may have arisen under such
agreements and understanding.
7. Effective Date of Agreement. This Agreement is not effective
until it is executed and accepted by PNC Mortgage at its home office in
Illinois.
8. Notices. All notices, requests, demands or other communications
that are to be given under this Agreement shall be in writing, addressed to
the appropriate parties, and shall be sent by certified mail, return
receipt requested, postage prepaid, if to the Company, at the address below
and, if to PNC Mortgage, to the appropriate address or facsimile number
<PAGE> 120
specified in the Guides. Any such notice, request, demand or other
communication shall be deemed effective upon receipt.
9. Independent Contractor. At no time shall the Company represent
that it is acting as an agent, partner or joint venturer of PNC Mortgage.
The Company shall at all times act as an independent contracting party.
10. Amendment. This Agreement may not be amended or modified orally,
and no provision of this Agreement may be waived or amended, except in
writing signed by the party against whom enforcement is sought. Such a
written waiver or amendment must expressly reference this Agreement.
However, by their terms the Guides may be amended or supplemented by PNC
Mortgage from time to time. Any such amendment(s) to the Guides shall be
in writing and be binding upon the parties hereto on and after the
effective date specified therein.
11. Miscellaneous. This Agreement, including all documents
incorporated by reference herein, constitutes the entire understanding
between the parties hereto and supersedes all other agreements, covenants,
representations, warranties, understandings and communications between the
parties, whether written or oral, with respect to the transactions
contemplated by this Agreement. All section headings contained herein are
for convenience only and shall not be construed as part of this Agreement.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall as to such jurisdiction be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction, and to this end, the provisions hereof
are severable. This Agreement shall be governed by, and construed and
enforced in accordance with, applicable federal laws and laws of the State
of Illinois, without reference to conflict of laws principles. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original and all of which shall constitute the same
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by proper
officials duly authorized on the dates hereinafter set forth. This
Agreement shall take effect as of the date of its execution in original or
facsimile signature by a duly authorized officer of PNC Mortgage.
______________________________ _________________________________
Name of the Company Company I.D. Number
______________________________ _________________________________
Type of organization Organized under laws of
________________________________________________________________
Principal place of business: street address, city, state, zip
<PAGE> 121
code
____________________________________________________________________
Typed name and title of the Company's authorized officer
____________________________________________ ________________________
Signature of the Company's authorized Date
officer
Agreed to and accepted by PNC Mortgage Securities Corp.
______________________________________________________________________
Typed name and title of authorized representative
____________________________________________ _________________________
Signature of authorized representative Date
Exhibit F
FORM OF TRANSFEROR CERTIFICATE FOR
JUNIOR SUBORDINATE CERTIFICATES
[Date]
State Street Bank and Trust Company, as Trustee
225 Franklin Street
Boston, MA 02110
Attn: Corporate Trust Department, PNC 2000-7
Re: Purchase of PNC Mortgage Securities Corp. Mortgage Pass-Through
Certificates Series 2000-7, Class [ ] (the "Certificates")
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand 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, and (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, or taken any other action which would result in a violation of
<PAGE> 122
Section 5 of the Act.
Very truly yours,
[Name of Transferor]
By:
Authorized Officer
Exhibit G
FORM OF TRANSFEREE'S AGREEMENT FOR
JUNIOR SUBORDINATE CERTIFICATES
[Date]
State Street Bank and Trust Company, as Trustee
225 Franklin Street
Boston, MA 02110
Attn: Corporate Trust Department, PNC 2000-7
PNC Mortgage Securities Corp.
75 N. Fairway Drive
Vernon Hills, Illinois 60061
The undersigned (the "Purchaser") proposes to purchase Class [
] Certificates evidencing an undivided interest in PNC Mortgage Securities
Corp. Mortgage Pass-Through Certificates, Series 2000-7 (the "Purchased
Certificates") in the principal amount of $______________. In doing so, the
Purchaser hereby acknowledges and agrees as follows:
Section 1. Definitions. Each capitalized term used herein and not
otherwise defined herein shall have the meaning ascribed to it in the
Pooling and Servicing Agreement, dated as of September 1, 2000 (the
"Pooling Agreement"), by and between PNC Mortgage Securities Corp. ("PNC")
and State Street Bank and Trust Company, as trustee (the "Trustee"), of the
PNC Mortgage Securities Corp. Mortgage Pass-Through Certificates, Series
2000-7.
Section 2. Representations and Warranties of the Purchaser. In
connection with the proposed transfer, the Purchaser represents and
warrants to PNC and the Trustee that:
(a) The Purchaser is duly organized, validly existing and in
<PAGE> 123
good standing under the laws of the jurisdiction in which the Purchaser is
organized, is authorized to invest in the Purchased Certificates, and to
enter into this Agreement, and duly executed and delivered this Agreement;
(b) The Purchaser is acquiring the Purchased Certificates for
its own account as principal and not with a view to the distribution
thereof, in whole or in part;
(c) The Purchaser is an "accredited investor" as such term is
defined in paragraph (a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) of Section
501 of Regulation D under the Securities Act of 1933, as amended (the
"Act"), has knowledge of financial and business matters and is capable of
evaluating the merits and risks of an investment in the Purchased
Certificates; the Purchaser has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment
decision; and the Purchaser is able to bear the economic risk of an
investment in the Purchased Certificates and can afford a complete loss of
such investment;
(d) The Purchaser is not affiliated with the Trustee;
(e) The Purchaser confirms that PNC has made available to the
Purchaser the opportunity to ask questions of, and receive answers from PNC
concerning the trust funds created pursuant to the Pooling Agreement (the
"Trust Funds"), the purchase by the Purchaser of the Purchased Certificates
and all matters relating thereto that PNC possesses or can acquire without
unreasonable effort or expense; and
(f) If applicable, the Purchaser has complied, and will continue
to comply, with the guidelines established by Thrift Bulletin 13a issued
April 23, 1998, by the Office of Regulatory Activities of the Federal Home
Loan Bank System; and
(g) The Purchaser will provide the Trustee and the Master
Servicer with affidavits substantially in the form of Exhibit A attached
hereto.
Section 3.Transfer of Purchased Certificates.
(a) The Purchaser understands that the Purchased Certificates
have not been registered under the Act, or any state securities laws and
that no transfer may be made unless the Purchased Certificates are
registered under the Act and under applicable state law or unless an
exemption from registration is available. The Purchaser further understands
that neither PNC nor the Trust Funds are under any obligation to register
the Purchased Certificates or make an exemption available. In the event
that such a transfer is to be made within two years from the Closing Date
without registration under the Act or applicable state securities laws, (i)
the Trustee shall require, in order to assure compliance with such laws,
that the Certificateholder's prospective transferee each certify to PNC and
the Trustee as to the factual basis for the registration or qualification
exemption relied upon, and (ii) the Trustee or PNC may require an Opinion
<PAGE> 124
of Counsel that such transfer may be made pursuant to an exemption from the
Act and state securities laws, which Opinion of Counsel shall not be an
expense of the Trustee or PNC. Any such Certificateholder desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee
and PNC 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.
(b) No transfer of a Purchased Certificate shall be made unless
the transferee provides PNC and the Trustee with (i) a Transferee's
Agreement, substantially in the form of this Agreement, and (ii) either (a)
an affidavit substantially in the form of Exhibit A hereto that the
proposed transferee (x) is not an employee benefit plan or other plan or
arrangement subject to the prohibited transaction provisions of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended, or
comparable provisions of any subsequent enactments (a "Plan"), a trustee of
any Plan, or any other Person who is using the "plan assets" of any Plan to
effect such acquisition or (y) is an insurance company, the source of funds
to be used by it to purchase the Purchased Certificates is an "insurance
company general account" (within the meaning of Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 95-60), and the purchase is
being made in reliance upon the availability of the exemptive relief
afforded under Sections I and III of PTCE 95-60, or (b) a Benefit Plan
Opinion (as defined in Exhibit A hereto).
(c) The Purchaser acknowledges that its Purchased Certificates
bear a legend setting forth the applicable restrictions on transfer.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to
be validly executed by its duly authorized representative as of the day and
the year first above written.
[Purchaser]
By:
Its:
Exhibit A to Form of Transferee Agreement (Exhibit G)
PNC MORTGAGE SECURITIES CORP.
BENEFIT PLAN AFFIDAVIT
RE: PNC MORTGAGE SECURITIES CORP.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-7
(THE "TRUST") CLASS [ ] CERTIFICATES
(THE "PURCHASED CERTIFICATES")
Under penalties of perjury, I, _____________________, declare that, to
the best of my knowledge and belief, the following representations are
true, correct and complete; and
<PAGE> 125
1. That I am the _______________ of __________________ (the
"Purchaser"), whose taxpayer identification number is ___________, and on
behalf of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate
representing an interest in the Trust Funds.
3. That the Purchaser (i) is not an employee benefit plan or
other plan or arrangement subject to the prohibited transaction provisions
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"), or comparable provisions of any subsequent enactments (a
"Plan"), a trustee of any Plan, or any other Person who is using the "plan
assets" of any Plan to effect such acquisition, (ii) has provided a
"Benefit Plan Opinion" satisfactory to PNC Mortgage Securities Corp. (the
"Company") and the Trustee of the Trust Funds or (iii) is an insurance
company, the source of funds to be used by it to purchase the Purchased
Certificates is an "insurance company general account" (within the meaning
of Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-
60), and the purchase is being made in reliance upon the availability of
the exemptive relief afforded under Sections I and III of PTCE 95-60. A
Benefit Plan Opinion is an opinion of counsel to the effect that the
proposed transfer (a) is permissible under applicable law, (b) will not
constitute or result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code, and (c) will not subject the
Trustee, the Master Servicer or the Company to any obligation or liability
(including obligations or liabilities under Section 406 of ERISA or Section
4975 of the Code) in addition to those undertaken in this Agreement, which
Benefit Plan Opinion shall not be an expense of the Trustee, the Master
Servicer or the Company.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to
be duly executed on its behalf, by its duly authorized officer this _____
day of __________________, 20__.
[Purchaser]
By:
Its:
Personally appeared before me ______________________, known or
proved to me to be the same person who executed the foregoing instrument
and to be a ________________ of the Purchaser, and acknowledged to me that
(s)he executed the same as his/her free act and deed and as the free act
and deed of the Purchaser.
SUBSCRIBED and SWORN to before me this day of ____________, 20__.
Notary Public
<PAGE> 126
Exhibit H
FORM OF ADDITIONAL MATTER INCORPORATED INTO
THE FORM OF THE CERTIFICATES
This Certificate does not represent an obligation of or interest in
PNC Mortgage Securities Corp. or any of its affiliates, including PNC Bank
Corp. Neither this Certificate nor the underlying Mortgage Loans are
guaranteed by any agency or instrumentality of the United States.
This certifies that the above-named Registered Owner is the registered
owner of certain interests in a trust fund (the "REMIC I Trust Fund") whose
assets consist of, among other things, a pool (the "Mortgage Pool") of
conventional one- to four-family mortgage loans (the "Mortgage Loans"),
formed and administered by PNC Mortgage Securities Corp. (the "Company"),
which term includes any successor entity under the Pooling Agreement
referred to below. The Mortgage Pool was created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-Off Date stated above (the
"Pooling Agreement"), between the Company and State Street Bank and Trust
Company, as Trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Pooling Agreement. Nothing herein shall be deemed inconsistent with such
meanings, and in the event of any conflict between the Pooling Agreement
and the terms of this Certificate, the Pooling Agreement shall control.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling Agreement, to which Pooling Agreement the
Holder of this Certificate, by virtue of the acceptance hereof, assents and
by which such Holder is bound.
Distributions will be made, pursuant to the Pooling Agreement, on the
25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last day (or
if such last day is not a Business Day, the Business Day immediately
preceding such last day) of the month immediately preceding the month of
such distribution (the "Record Date"), to the extent of such
Certificateholder's Percentage Interest represented by this Certificate in
the portion of the Available Distribution Amount for such Distribution Date
then distributable on the Certificates of this Class, as specified in
Section 4.01 of the Pooling Agreement.
Distributions on this Certificate will be made by the Trustee by wire
transfer or check mailed to the address of the Person entitled thereto, as
such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will
be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate
to the Certificate Registrar.
<PAGE> 127
Reference is hereby made to the further provisions of this Certificate
set forth below, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Certificate shall
not be entitled to any benefit under the Pooling Agreement or be valid for
any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
STATE STREET BANK AND TRUST COMPANY, as Trustee
By:
(TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Certificates referred to in the within-
mentioned Pooling Agreement.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
Dated:
PNC MORTGAGE SECURITIES CORP.
MORTGAGE PASS-THROUGH CERTIFICATE
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series and Class
specified hereon (herein called the "Certificates") and representing
certain interests in the REMIC I Trust Fund.
The Certificates do not represent an obligation of, or an interest in,
the Company or any of its affiliates and are not insured or guaranteed by
any governmental agency. The Certificates are limited in right of payment
to certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth herein and in the Pooling Agreement. In the
event funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer from the related recoveries on such
Mortgage Loan or from other cash deposited in the Certificate Account to
<PAGE> 128
the extent that such advance is not otherwise recoverable.
As provided in the Pooling Agreement, withdrawals from the Certificate
Account may be made from time to time for purposes other than distributions
to Certificateholders, such purposes including reimbursement to the Master
Servicer of advances made, or certain expenses incurred, by it.
The Pooling Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under
the Pooling Agreement at any time by the Company, the Master Servicer and
the Trustee with the consent of the Holders of the Certificates evidencing
Percentage Interests aggregating not less than 66% of the REMIC I Trust
Fund. 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 herefor or in lieu hereof whether or not notation of such consent
is made upon this Certificate. The Pooling 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 Pooling Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices of the Certificate Registrar or
the office maintained by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or
other written instrument of transfer in form satisfactory to the Trustee or
any Authenticating Agent duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of Authorized Denominations evidencing the same Percentage
Interest set forth hereinabove will be issued to the designated transferee
or transferees.
[to be used only in the case of the Junior Subordinate Certificates:]
[No transfer of a Certificate will be made unless such transfer is exempt
from or is made in accordance with the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") and any
applicable state securities laws. In the event that a transfer is to be
made without registration or qualification under applicable laws, (i) in
the event such transfer is made pursuant to Rule 144A under the Securities
Act, the Company and the Trustee shall require the transferee to execute an
investment letter in substantially the form attached as Exhibit L to the
Pooling Agreement, which investment letter shall not be an expense of the
Company, the Master Servicer or the Trustee and (ii) in the event that such
a transfer is not made pursuant to Rule 144A under the Securities Act, the
Company may require an Opinion of Counsel satisfactory to the Company that
such transfer may be made without such registration or qualification, which
Opinion of Counsel shall not be an expense of the Company, the Master
Servicer or the Trustee. Neither the Company nor the Trustee will register
the Certificate under the Securities Act, qualify the Certificate under any
state securities law or provide registration rights to any purchaser. Any
<PAGE> 129
Holder desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Company and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws.]
The Certificates are issuable only as registered Certificates without
coupons in Authorized Denominations specified in the Pooling Agreement. As
provided in the Pooling Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
Authorized Denominations evidencing the same aggregate interest in the
portion of the Available Distribution Amount distributable on this Class of
Certificate, as requested by the Holder surrendering the same.
A reasonable service charge may be made for any such registration of
transfer or exchange, and the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Company, the Trustee and the Certificate Registrar and any agent
of the Company, the Trustee or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Company, the Trustee, the Certificate
Registrar nor any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the trust funds
created thereby shall terminate upon (i) the later of the maturity or other
liquidation (including repurchase by the Company) of the last Mortgage Loan
remaining in the REMIC I Trust Fund or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage
Loan, and (ii) the payment to Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Pooling Agreement.
In the event that the Company repurchases any Mortgage Loan pursuant to the
Pooling Agreement, the Pooling Agreement generally requires that the
Trustee distribute to the Certificateholders in the aggregate an amount
equal to 100% of the unpaid Principal Balance of such Mortgage Loan, plus
unpaid accrued interest thereon at the applicable Pass-Through Rate to the
last day of the month in which such repurchase occurs. The Pooling
Agreement permits, but does not require, the Company to repurchase from the
REMIC I Trust Fund all Mortgage Loans at the time subject thereto and all
property acquired in respect of any Mortgage Loan upon payment to the
Certificateholders of the amounts specified in the Pooling Agreement. The
exercise of such right will effect early retirement of the Certificates,
the Company's right to repurchase being subject to the aggregate Principal
Balance of the Mortgage Loans at the time of repurchase being less than ten
percent (10%) of the aggregate Principal Balance of the Mortgage Loans as
of the Cut-Off Date.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s) and assign(s) and
<PAGE> 130
transfer(s) unto
(Please print or typewrite name and address, including postal zip code of
assignee. Please insert social security or other identifying number of
assignee.)
the within Mortgage Pass-Through Certificate and hereby irrevocably
constitutes and appoints
Attorney to transfer said Certificate on the Certificate Register, with
full power of substitution in the premises.
Dated:
Signature Guaranteed
NOTICE:The signature to this assignment must
correspond with the name as written upon the
face of the within instrument in every
particular, without alteration or enlargement
or any change whatever. This Certificate does
not represent an obligation of or an interest
in PNC Mortgage Securities Corp. or any of its
affiliates, including PNC Bank Corp. Neither
this Certificate nor the underlying Mortgage
Loans are guaranteed by any agency or
instrumentality of the United States.
Exhibit I
TRANSFEROR CERTIFICATE
[Date]
State Street Bank and Trust Company, as Trustee
225 Franklin Street
Boston, MA 02110
Attn: Corporate Trust Department, PNC 2000-7
Re: PNC Mortgage Securities Corp. Mortgage Pass-Through
Certificates, Series 2000-7, Class R
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale from
(the "Seller") to (the "Purchaser") of
$____________________ initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 2000-7, Class R (the "Certificate"),
pursuant to Section 5.01 of the Pooling and Servicing Agreement (the
"Pooling Agreement"), dated as of September 1, 2000 among PNC Mortgage
<PAGE> 131
Securities Corp., as depositor and master servicer (the "Company") and
State Street Bank and Trust Company, as trustee (the "Trustee"). All terms
used herein and not otherwise defined shall have the meanings set forth in
the Pooling Agreement. The Seller hereby certifies, represents and warrants
to, and covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to the sale of the Certificate
by the Seller to the Purchaser is or will be to enable the Seller to impede
the assessment or collection of tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Company a transferee affidavit and agreement in the form
attached to the Pooling Agreement as Exhibit J. The Seller does not know or
believe that any representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee
is not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificates.
5. The Seller has conducted a reasonable investigation of the
financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has historically paid its debts as they came due,
and found no significant evidence to indicate that the Purchaser will not
continue to pay its debts as they come due in the future.
6. The Purchaser has represented to the Seller that, if the
Certificates constitute a noneconomic residual interest, it (i) understands
that as holder of a noneconomic residual interest it may incur tax
liabilities in excess of any cash flows generated by the interest, and (ii)
intends to pay taxes associated with its holding of the Certificates as
they become due.
Very truly yours,
[Seller]
By:
Name:
Title:
Exhibit J
TRANSFEREE AFFIDAVIT AND AGREEMENT
STATE OF )
<PAGE> 132
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the Class R Certificate (the "Owner")), a [savings
institution] [corporation] duly organized and existing under the laws of
[the State of ] [the United States], on behalf of which he
makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code")
and will endeavor to remain other than a disqualified organization for so
long as it retains its ownership interest in the Class R Certificates, and
(ii) is acquiring the Class R Certificates for its own account or for the
account of another Owner from which it has received an affidavit and
agreement in substantially the same form as this affidavit and agreement.
(For this purpose, a disqualified organization" means the United States,
any state or political subdivision thereof, or any agency or
instrumentality of any of the foregoing (other than an instrumentality all
of the activities of which are subject to tax and, except for the Federal
Home Loan Mortgage Corporation, a majority of whose board of directors is
not selected by any such governmental entity), or any foreign government or
international organization, or any agency or instrumentality of such
foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives)
that is generally exempt from federal income tax unless such organization
is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed
on transfers of the Class R Certificates after March 31, 1988; (ii) that
such tax would be on the transferor, or, if such transfer is through an
agent (which person includes a broker, nominee or middle-man) for a
disqualified organization, on the agent; (iii) that the person otherwise
liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such person an affidavit that the transferee is not
a disqualified organization and, at the time of transfer, such person does
not have actual knowledge that the affidavit is false; and (iv) that the
Class R Certificates may be a "noneconomic residual interest" within the
meaning of 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, if a
significant purpose of the transfer was to enable the transferor to impede
the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-
through entity" holding the Class R Certificates if at any time during the
taxable year of the pass-through entity a disqualified organization is the
<PAGE> 133
record holder of an interest in such entity. (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.)
5. That the Owner is aware that the Trustee will not register
the Transfer of the Class R Certificates unless the transferee, or the
transferees' agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it
knows or believes that any of the representations contained in such
affidavit and agreement are false.
6. That the Owner has reviewed the restrictions set forth on
the face of the Class R Certificates and the provisions of Section 5.01 of
the Pooling Agreement under which the Class R Certificates were issued (in
particular, clauses (iii)(A) and (iii)(B) of Section 5.01(c) which
authorize the Trustee to deliver payments to a person other than the Owner
and negotiate a mandatory sale by the Trustee in the event the Owner holds
such Certificates in violation of Section 5.01). The Owner expressly agrees
to be bound by and to comply with such restrictions and provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class R Certificates
will only be owned, directly or indirectly, by an Owner that is not a
disqualified organization.
8. The Owner's Taxpayer Identification Number is
.
9. That no purpose of the Owner relating to the purchase of the
Class R Certificates by the Owner is or will be to enable the transferor to
impede the assessment or collection of tax.
10. That the Owner anticipates that it will, so long as it holds
the Class R Certificates, have sufficient assets to pay any taxes owed by
the holder of such Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class R Certificates that
the Owner intends to pay taxes associated with holding such Certificates as
they become due, fully understanding that it may incur tax liabilities in
excess of any cash flows generated by the Class R Certificates. That the
Owner has provided financial statements or other financial information
requested by the transferor in connection with the transfer of the Class R
Certificates to permit the transferor to assess the financial capability of
the Owner to pay such taxes.
11. That the Owner has no present knowledge or expectation that
it will be unable to pay any United States taxes owed by it so long as any
of the Class R Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that
<PAGE> 134
it will become insolvent or subject to a bankruptcy proceeding for so long
as any of the Class R Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the
Class R Certificates by the Owner will be to impede the assessment or
collection of tax.
14. The Owner is 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 or any political subdivision thereof, 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.
15. The Owner hereby agrees to cooperate with the Company and to
take any action required of it by the Code or Treasury regulations
thereunder (whether now or hereafter promulgated) in order to create or
maintain the REMIC status of the REMIC I Trust Fund (the "Trust Fund").
16. The Owner hereby agrees that it will not take any action
that could endanger the REMIC status of the Trust Fund or result in the
imposition of tax on the Trust Fund unless counsel for, or acceptable to,
the Company has provided an opinion that such action will not result in the
loss of such REMIC status or the imposition of such tax, as applicable.
17. The Owner as transferee of the Class R Certificates has
represented to their transferor that, if the Class R Certificates
constitute a noneconomic residual interest, the Owner (i) understands that
as holder of a noneconomic residual interest it may incur tax liabilities
in excess of any cash flows generated by the interest, and (ii) intends to
pay taxes associated with its holding of the Class R Certificates as they
become due.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of
Directors, by its [Title of Officer] and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this day of
, 20 __ .
[Name of Owner]
By:
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
<PAGE> 135
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument
and to be the [Title of Officer] of the Owner, and Acknowledged to me that
he executed the same as his free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ___ day of __________________,
20__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the day
of , 20
Exhibit K
[Reserved]
Exhibit L
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
The undersigned seller, as registered holder (the "Seller"), intends
to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the
Seller hereby certifies the following facts: Neither the Seller nor anyone
acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security from, or otherwise approached or negotiated with respect to the
Rule 144A Securities, any interest in the Rule 144A Securities 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
<PAGE> 136
taken any other action, that would constitute a distribution of the Rule
144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant
thereto, and that the Seller has not offered the Rule 144A Securities to
any person other than the Buyer or another "qualified institutional buyer"
as defined in Rule 144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee and the Master Servicer (as defined in the Pooling and
Servicing Agreement (the "Agreement") dated as of September 1, 2000 between
PNC Mortgage Securities Corp., as Depositor and Master Servicer and State
Street Bank and Trust Company, as Trustee) pursuant to Section 5.01(f) of
the Agreement, as follows:
a. The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any
state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
c. The Buyer has received and reviewed the Private Placement
Memorandum dated as of September 29, 2000 relating to the Rule 144A
Securities and has been furnished with all information regarding the
Rule 144A Securities that it has requested from the Seller, the
Trustee, the Company or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities 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
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of
the 1933 Act or require registration pursuant thereto, nor will it
act, nor has it authorized or will it authorize any person to act, in
such manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has (1) completed
either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2, or (2) obtained the waiver of the Company with
respect to Annex 1 and Annex 2 pursuant to Section 5.01(f) of the
<PAGE> 137
Agreement. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or
for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on
Rule 144A, or (ii) pursuant to another exemption from registration
under the 1933 Act.
f. The Buyer is not affiliated with (i) the Trustee or (ii) any
Rating Agency that rated the Rule 144A Securities.
g. If applicable, the Buyer has complied, and will continue to
comply, with the guidelines established by Thrift Bulletin 13a issued
April 23, 1998, by the Office of Regulatory Activities of the Federal
Home Loan Bank System.
[Required only in the case of a transfer of a Class B Certificate] [3.
The Buyer warrants and represents to, and covenants with, the Trustee, the
Master Servicer and the Company that (1) the Buyer is not an employee
benefit plan (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), subject to the
prohibited transaction provisions of ERISA ("Plan"), or a plan (within the
meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986
("Code")) subject to Section 4975 of the Code (also a "Plan"), and the
Buyer is not directly or indirectly purchasing the Rule 144A Securities on
behalf of, as investment manager of, as named fiduciary of, as trustee of,
or with "plan assets" of any Plan, (2) the Buyer's purchase of the Rule
144A Securities is permissible under applicable law, will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code and will not subject the Trustee, the Master
Servicer or the Company to any obligation or liability (including
obligations or liabilities under Section 406 of ERISA or Section 4975 of
the Code) in addition to those undertaken in this Agreement and the Buyer
has provided an Opinion of Counsel to such effect in accordance with
Section 5.01(d) of the Agreement or (3) the Buyer is an insurance company,
the source of funds to be used by it to purchase the Rule 144A Securities
is an "insurance company general account" (within the meaning of Department
of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60), and the
purchase is being made in reliance upon the availability of the exemptive
relief afforded under Sections I and III of PTCE 95-60.]
4. This document may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when
so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
<PAGE> 138
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No.: No.:
Date: Date:
Annex 1 to Exhibit L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is
attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $______________________ (the Buyer must
own and/or invest on a discretionary basis at least $100,000,000 in
securities unless the Buyer is a dealer, and, in that case, the Buyer must
own and/or invest on a discretionary basis at least $10,000,000 in
securities) 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.
<PAGE> 139
___ 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.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State or 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 Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA") and is subject to the fiduciary
responsibility provisions of ERISA.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
established and maintained by a State, its political subdivisions, or
any agency or instrumentality of the State or its political
<PAGE> 140
subdivisions, for the benefit of its employees, or (b) employee
benefit plans within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, but is not a trust fund that includes as
participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer,
(ii) securities that are part of an unsold allotment to or subscription by
the Buyer, if the Buyer is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph. 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.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule
144A.
Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own
account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for
the account of a third party (including any separate account) in reliance
on Rule 144A, the Buyer will only purchase for the account of a third party
that at the time is a "qualified institutional buyer" within the meaning of
Rule 144A. In addition, the Buyer agrees that the Buyer will not purchase
securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate
steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of "qualified institutional buyer" set
forth in Rule 144A.
7. 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 Rule 144A
<PAGE> 141
Securities will constitute a reaffirmation of this certification as of the
date of such purchase.
Print Name of Buyer
By:
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is
attached:
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 ("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,
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.
____ 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
<PAGE> 142
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made 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. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities
will constitute a reaffirmation of this certification by the undersigned as
of the date of such purchase.
Print Name of Buyer
By:
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Buyer
By:
Name:
Title:
Date:
(SEAL)
<PAGE> 143
Exhibit M
[Date]
[Company]
Re: Pooling and Servicing Agreement dated as of September 1,
2000 by and between PNC Mortgage Securities Corp., as
Depositor and Master Servicer, and State Street Bank and
Trust Company, as Trustee, relating to PNC Mortgage
Securities Corp. Mortgage Pass-Through Certificates, Series
2000-7
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that,
except as noted on the attachment hereto, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attachment hereto) it or the Custodian on its behalf has
reviewed the documents delivered to it or to the Custodian on its behalf
pursuant to Section 2.01 of the Pooling and Servicing Agreement and has
determined that (i) all documents required (in the case of instruments
described in clauses (X)(v) and (Y)(x) of the definition of "Mortgage
File," known by the Trustee to be required) pursuant to the definition of
"Mortgage File" and Section 2.01 of the Pooling and Servicing Agreement
have been executed and received as of the date hereof are in its possession
or in the possession of the Custodian on its behalf and (ii) all such
documents have been executed and relate to the Mortgage Loans identified in
the Mortgage Loan Schedule. The Trustee has made no independent examination
of such documents beyond the review specifically required in the above
referenced Pooling and Servicing Agreement and has relied upon the
purported genuineness and due execution of any such documents and upon the
purported genuineness of any signature thereon. The Trustee makes no
representations as to: (i) the validity, legality, enforceability or
genuineness of any of the documents contained in each Mortgage File or any
of the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
<PAGE> 144
as Trustee
By:
Name:
Title:
EXHIBIT N
BENEFIT PLAN AFFIDAVIT
State Street Bank and Trust Company, as Trustee
225 Franklin Street
Boston, MA 02110
Attn: Corporate Trust Department, PNC 2000-7
PNC Mortgage Securities Corp.
75 North Fairway Drive
Vernon Hills, IL 60061
RE: PNC MORTGAGE SECURITIES CORP.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-7
(THE "TRUST") CLASS [B-_] CERTIFICATES
(THE "PURCHASED CERTIFICATES")
Under penalties of perjury, I, _____________________, declare that, to
the best of my knowledge and belief, the following representations are
true, correct and complete; and
1. That I am the _______________ of __________________ (the
"Purchaser"), whose taxpayer identification number is ___________, and on
behalf of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate
representing an interest in the Trust Funds.
3. That the Purchaser is either:
(a) not an employee benefit plan or other plan subject to the
prohibited transaction provisions 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") (a "Plan") or any other
person (including an investment manager, a named fiduciary or a trustee of
any Plan) acting directly or indirectly on behalf of, or purchasing any of
the Purchased Certificates with "plan assets" of, any Plan within the
meaning of the Department of Labor ("DOL") regulation at 29 C.F.R. Section
2510.3-101; or
<PAGE> 145
(b) an insurance company, the source of funds to be used by it to
purchase the Purchased Certificates is an "insurance company general
account" (within the meaning of DOL Prohibited Transaction Class Exemption
("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III of
PTCE 95-60.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to
be duly executed on its behalf, by its duly authorized officer this _____
day of __________________, 20__.
[Purchaser]
By:
Its:
Personally appeared before me ______________________, known or proved to me
to be the same person who executed the foregoing instrument and to be a
________________ of the Purchaser, and acknowledged to me that (s)he
executed the same as his/her free act and deed and as the free act and deed
of the Purchaser.
SUBSCRIBED and SWORN to before me this day of ____________, 20__.
Notary Public
Exhibit O
[Reserved]
Exhibit P
[Reserved]
OH&S DRAFT 9/27/00
Exhibit Q
CALL OPTION AGREEMENT
<PAGE> 146
This CALL OPTION AGREEMENT (this "Agreement"), dated as of September
29, 2000, is entered into between Donaldson, Lufkin & Jenrette Securities
Corporation (the "Initial Call Option Holder") and State Street Bank and
Trust Company ("State Street"), solely in its capacity as Trustee (the
"Trustee") under the Pooling and Servicing Agreement, dated as of September
1, 2000 (the "Pooling and Servicing Agreement"), by and between PNC
Mortgage Securities Corp. ("PNC"), as Depositor and Master Servicer, and
the Trustee.
In consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
SECTION 1. Definitions
(a) For all purposes of this Agreement, the following terms shall
have the meanings set forth below, except as otherwise expressly provided
or unless the context otherwise requires:
"Call Determination Date": March 25, 2005 or, if such day is not a
Business Day, the next succeeding Business Day.
"Call Notice Period": The fifteen (15) Business Day period ending at
5:00 p.m. New York City time on the Call Determination Date.
"Call Option": With respect to each Class of the Class A-1, Class X,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates, the option to require the holders of all Certificates of such
Class to sell such Certificates to the applicable Call Option Holder or its
designee, in each case at the applicable Purchase Price on the Purchase
Date, notice having been given by the Call Option Holder as required herein
during the Call Notice Period. The Call Option with respect to the Class A-
1 Certificates shall be referred to as the "Class A-1 Call Option," the
Call Option with respect to the Class X Certificates shall be referred to
as the "Class X Call Option" and so on; and the Call Options with respect
to all of the Classes shall be referred to collectively as the "Call
Options."
"Call Option Holder": For any Call Option, the holder of such Call
Option, which on the date hereof shall be the Initial Call Option Holder
and thereafter shall be the Initial Call Option Holder or any Person to
which such Call Option has been assigned in accordance with this Agreement.
"Certificates": The Mortgage Pass-Through Certificates, Series 2000-7
issued by PNC under the Pooling and Servicing Agreement.
"Class": Any of the Class A-1, Class X, Class B-1, Class B-2, Class B-
3, Class B-4, Class B-5 and Class B-6 Certificates.
"Initial Call Option Holder": The meaning given in the introductory
paragraph hereto.
<PAGE> 147
"PNC": The meaning given in the introductory paragraph hereto.
"Pooling and Servicing Agreement": The meaning given in the
introductory paragraph hereto.
"Purchase Date": April 25, 2005 or, if such day is not a Business
Day, the next succeeding Business Day
"Purchase Price": For each Certificate of a Class (other than the
Class X Certificates) as to which the applicable Call Option Holder has
exercised the applicable Call Option, the sum of (i) the product of the
Purchase Price Percentage for such Class and the outstanding Certificate
Principal Balance of such Certificate on the Purchase Date (after giving
effect to any distributions of principal and the allocation of the
principal portion of Realized Losses on such date) plus (ii) accrued and
unpaid interest on such Certificate from the first day of the month to the
date immediately prior to the Purchase Date at the applicable Certificate
Interest Rate. For each Class X Certificate, zero.
"Purchase Price Percentage": For the Class A-1, Class B-1, Class B-2
and Class B-3 Certificates, 100%; for the Class B-4 and Class B-5
Certificates, 80%; and for the Class B-6 Certificates, 20%.
"Trustee": The meaning given in the introductory paragraph hereto.
(b) Capitalized terms used herein and not defined shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
(c) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
SECTION 2. Grant of Call Options
Subject to the terms and conditions hereof and of the Pooling and
Servicing Agreement, the Trustee hereby grants the Call Options to the
Initial Call Option Holder. The Call Options shall not be in certificated
form.
SECTION 3. Exercise
During the Call Notice Period, each Call Option Holder may exercise
one or more of the Call Options held by such Call Option Holder by
providing written notice to the Trustee in substantially the form of the
Call Option Notice attached hereto as Exhibit A; provided, however, that
any Call Option shall be exercisable only with respect to all, but no fewer
than all, of the Certificates of the applicable Class. Notice by a Call
Option Holder of the exercise of a Call Option shall be irrevocable.
SECTION 4. Notice of Exercise
At the end of the Call Notice Period, the Trustee shall (i) in
<PAGE> 148
accordance with the Pooling and Servicing Agreement, give written notice to
each holder of a Certificate with respect to which a Call Option has been
exercised that such Call Option was exercised with respect to such
Certificate and (ii) in the event that the Class A-1 Call Option has been
exercised, give written notice thereof (at such address as has been
provided to the Trustee by the Escrow Agent) to the Escrow Agent under the
Put Agreement, dated as of September 1, 2000, between Westdeutsche
Landesbank Girozentrale, New York Branch, as put provider, and State Street
Bank and Trust Company, as escrow agent.
SECTION 5. Payment of Purchase Price; Transfer of Certificates
Before 5:00 p.m. New York City time on the date of its receipt from
the Master Servicer of the statement delivered by the Master Servicer to
the Trustee pursuant to Section 4.02(b) of the Pooling and Servicing
Agreement, the Trustee shall deliver a copy of such statement by courier or
confirmed facsimile to each Call Option Holder (other than the Class X
Option Holder). Not later than one (1) Business Day prior to the Purchase
Date, each Call Option Holder (other than the Class X Option Holder) shall
deposit into the Certificate Account (by wire transfer to the Trustee of
immediately available funds) the aggregate Purchase Price for the
Certificates with respect to which Call Options held by such Call Option
Holder have been exercised. Payment of the Purchase Price to the holders
of such Certificates on the Purchase Date, and the registration of the
transfer of such Certificates, or the transfer of the beneficial ownership
interest therein, as applicable, on the Purchase Date to the Call Option
Holder shall be made by the Trustee in accordance with the Pooling and
Servicing Agreement.
SECTION 6. Obligation Irrevocable
Each Call Option Holder's obligation to make payments hereunder is
irrevocable, unconditional and not subject to any defense, rights of
setoff, counterclaim or rescission.
SECTION 7. Representations and Warranties of Initial Call Option
Holder
The Initial Call Option Holder hereby certifies, represents and
warrants to the Trustee and PNC that:
(i) Organization and Good Standing. The Initial Call Option
Holder is duly organized and validly existing as a corporation in good
standing under the laws of its state of incorporation, with the
corporate power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(ii) Power and Authority. The Initial Call Option Holder has the
corporate power and authority to execute and deliver this Agreement
and to carry out its terms. This Agreement has been duly authorized,
executed and delivered by the Initial Call Option Holder.
<PAGE> 149
(iii) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time)
a default under, the articles of incorporation or bylaws of the
Initial Call Option Holder, or any indenture, agreement or other
instrument to which the Initial Call Option Holder is a party or by
which it is bound; or result in the creation or imposition of any lien
upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument.
(iv) Non-Affiliate. The Initial Call Option Holder is not an
affiliate of the Trustee or PNC.
(v) QIB. The Initial Call Option Holder is a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act
of 1933, as amended.
SECTION 8. Amendment
No amendment or waiver of any provision of this Agreement shall be
effective unless the same shall be in writing and signed by the Initial
Call Option Holder, any other Call Option Holder and the Trustee, and then
such amendment or waiver shall be effective only if the person or persons
requesting such amendment or waiver shall have obtained written
confirmation from the Rating Agencies that such amendment or waiver shall
not result in the downgrade or withdrawal of the then current ratings of
any of the Certificates.
SECTION 9. Notices
All demands, notices, communications and instructions upon or to a
Call Option Holder or the Trustee under this Agreement shall be in writing
and shall be deemed to have been duly given if personally delivered, or
mailed by registered or certified mail, return receipt requested, or
delivered by overnight delivery service or confirmed facsimile to (a) in
the case of the Initial Call Option Holder, 277 Park Avenue, 9th Floor, New
York, New York 10172, Attn: Helaine F. Hebble, telephone no.: (212) 892-
3000, Facsimile no.: (212) 892-5434, with a copy to the office of the
General Counsel of the Initial Call Option Holder at 277 Park Avenue, 23rd
Floor, New York, New York 10172, telephone no.: (212) 892-3000, Facsimile
no.: (212) 892-0641, (b) in the case of the Trustee, its Corporate Trust
Office, telephone no.: (617) 662-1314, Facsimile no.: (617) 662-1435, and
(c) in the case of any Call Option Holder other than the Initial Call
Option Holder, the address or facsimile number set forth in the Assignment
(as defined in Section 10(b)) executed by such Call Option Holder; or, as
to each of the foregoing, at such other address or facsimile number as
shall be designated by written notice to the other parties.
SECTION 10. Successors and Assigns
<PAGE> 150
(a) This Agreement shall be binding upon, and shall inure to the
benefit of the respective successors and assigns of each Call Option Holder
and the Trustee for the benefit of the holders of the Certificates;
provided, however, that each Call Option Holder shall have no right to
assign any of its rights or obligations hereunder except in accordance with
Section 10(b) hereof.
(b) In order for an assignment by a Call Option Holder of its rights
and obligations hereunder with respect to one or more Call Options held by
such Call Option Holder to be effective, (i) such assigning Call Option
Holder and the proposed assignee shall each have executed and delivered to
the Trustee and PNC an Assignment substantially in the form of Exhibit B
hereto (the "Assignment") and an investment letter (including the
certification attached as an annex thereto) substantially in the form of
Exhibit C hereto and (ii) the Trustee shall have acknowledged its receipt
and acceptance of the documents referred to in clause (i) above by
executing an acknowledgment to the Assignment.
SECTION 11. Enforcement
If the Trustee incurs any reasonable attorneys fees or costs in
enforcing the performance by a Call Option Holder of its obligations under
this Agreement and the Trustee is the prevailing party with respect to the
same or incurs any costs in collecting any amounts due hereunder by the
Call Option Holder, with or without the hiring of an attorney or the filing
of any legal action or proceeding, the Call Option Holder shall pay to the
Trustee, upon demand, all such costs and the amount of all reasonable
attorney fees incurred.
SECTION 12. Severability
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 13. Separate Counterparts
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 14. Headings
The headings of the various Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION 15. Governing Law
<PAGE> 151
This Agreement shall be construed in accordance with the laws of the
State of New York, without reference to its conflict of laws principles,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Call Option
Agreement to be duly executed by their respective officers as of the day
and year first above written.
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION,
as Initial Call Option Holder
By:
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as
Trustee and not individually
By:
Name:
Title:
Exhibit A
Call Option Notice
[Date *]
State Street Bank and Trust Company,
as Trustee
225 Franklin Street
Boston, MA 02110
Attention: Corporate Trust
Department, PNC 2000-7
Re: Call Option Agreement, dated as of September 29, 2000,
between Donaldson, Lufkin & Jenrette Securities
Corporation and State Street Bank and Trust Company, as
Trustee, [as assigned to the Call Option Holder on
___________], with respect to PNC Mortgage Securities
<PAGE> 152
Corp. Mortgage Pass-Through Certificates, Series 2000-7
Ladies and Gentlemen:
In accordance with the provisions of the above-referenced Call Option
Agreement, the undersigned, holder of a Class [A-1] [X] [B-1] [B-2] [B-3]
[B-4] [B-5] [B-6] Call Option (the "Call Option[s]"), hereby exercises its
Call Option[s] with respect to all, but no fewer than all, of the Class [A-
1] [X] [B-1] [B-2] [B-3] [B-4] [B-5] [B-6] Certificates.
The undersigned represents and warrants to the Trustee that on the
date of this Notice it is the holder of the Call Option[s], and further
represents and warrants that it will remain the holder thereof at all times
to and including the Purchase Date.
The undersigned understands and agrees that, by delivering this Call
Option Notice to the Trustee, it is making an irrevocable election to
exercise the Call Option[s] with respect to the Certificates indicated
above and thereby has become obligated to pay the applicable Purchase Price
therefor on the Purchase Date.
Capitalized terms used and not defined herein are used as defined in
the Call Option Agreement.
Very truly yours,
________________________
By: ___________________________
Name: _________________________
Title: __________________________
* This Call Option Notice must be delivered to the Trustee during the
fifteen (15) Business Day period ending at 5:00 p.m. New York City time on
the Call Determination Date.
Exhibit B
ASSIGNMENT
This ASSIGNMENT (this "Assignment"), dated as of __________, is
entered into between ___________, a ___________ corporation (the
"Assignor"), and ___________, a ___________ corporation (the "Assignee").
WHEREAS, the Assignor is the holder of a Class [__] Call Option (the
"Assigned Call Option") pursuant to the Call Option Agreement (the "Call
Option Agreement"), dated as of September 29, 2000, between Donaldson,
Lufkin & Jenrette Securities Corporation (the "Initial Call Option Holder")
and State Street Bank and Trust Company ("State Street"), as Trustee (the
"Trustee"), [as such Call Option Agreement has been assigned to the
<PAGE> 153
Assignor on __________], relating to the Mortgage Pass-Through
Certificates, Series 2000-7 issued by PNC Mortgage Securities Corp. ("PNC")
under the Pooling and Servicing Agreement, dated as of September 1, 2000
(the "Pooling and Servicing Agreement"), by and between PNC, as Depositor
and Master Servicer, and the Trustee; and
WHEREAS, the Assignor desires to assign the Assigned Call Option to
the Assignee;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Definitions
Capitalized terms used herein and not defined shall have the meanings
assigned to them in the Call Option Agreement.
SECTION 2. Assignment
The Assignor hereby assigns to the Assignee, as of the date hereof,
its rights and obligations under the Call Option Agreement with respect to
the Assigned Call Option, and the Assignee hereby accepts such assignment
and agrees to assume such obligations.
SECTION 3. Investment Letter
This Assignment shall become effective only upon delivery by the
Assignor and the Assignee to the Trustee and PNC of this Assignment and an
investment letter substantially in the form of Exhibit C to the Call Option
Agreement, and the Trustee's execution of an acknowledgment to this
Assignment.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be duly executed by their respective officers as of the day and year first
above written.
[ASSIGNOR]
__________________________, as
Assignor
By:
Name:
Title:
[ASSIGNEE]
__________________________, as Assignee
By:
Name:
Title:
Assignee's Address:
[________________]
<PAGE> 154
Telephone No.: ___________
Facsimile No.: ___________
The Trustee hereby acknowledges receipt of
this Assignment and the investment letter and
certification attached hereto:
STATE STREET BANK AND TRUST COMPANY, as
Trustee and not individually
By:
Name:
Title:
Exhibit C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Call Options (the "Rule 144A Securities"):
The undersigned seller, as Call Option Holder (the "Seller"), intends
to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the
Seller hereby certifies the following facts: Neither the Seller nor anyone
acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security from, or otherwise approached or negotiated with respect to the
Rule 144A Securities, any interest in the Rule 144A Securities 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 Rule
144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant
thereto, and that the Seller has not offered the Rule 144A Securities to
any person other than the Buyer or another "qualified institutional buyer"
as defined in Rule 144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee and PNC (as defined in the Call Option Agreement (the
"Agreement"), dated as of September 29, 2000, between Donaldson, Lufkin &
Jenrette Securities Corporation and the Trustee), pursuant to Section 10(b)
of the Agreement, as follows:
<PAGE> 155
a. The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any
state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the
Trustee or PNC.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities 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
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of
the 1933 Act or require registration pursuant thereto, nor will it
act, nor has it authorized or will it authorize any person to act, in
such manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has completed either of
the forms of certification to that effect attached hereto as Annex 1
and Annex 2. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or
for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance on
Rule 144A, or (ii) pursuant to another exemption from registration
under the 1933 Act.
f. The Buyer is not affiliated with (i) the Trustee or
(ii) PNC.
g. If applicable, the Buyer has complied, and will continue to
comply, with the guidelines established by Thrift Bulletin 13a issued
April 23, 1998, by the Office of Regulatory Activities of the Federal
Home Loan Bank System.
<PAGE> 156
3. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee and PNC, pursuant to Section 10(b) of the Agreement,
that either (i) the Buyer is not an employee benefit or other plan subject
to the prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986 ("Code"), or any person (including an investment
manager, a named fiduciary or a trustee of any such plan) acting, directly
or indirectly, on behalf of or purchasing the Rule 144A Securities with
"plan assets" of any such plan, or (ii) the Buyer's purchase and holding of
the Rule 144A Securities is eligible for the exemptive relief available
under Department of Labor Prohibited Transaction Class Exemption 84-14, 91-
38, 90-1, 95-60 or 96-23.
4. This document may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when
so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
Taxpayer Identification No: Taxpayer Identification No:
Date: Date:
Annex 1 to Exhibit C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is
attached:
<PAGE> 157
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $______________________ (the Buyer must
own and/or invest on a discretionary basis at least $100,000,000 in
securities unless the Buyer is a dealer, and, in that case, the Buyer must
own and/or invest on a discretionary basis at least $10,000,000 in
securities) 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.
___ 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.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State or 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.
<PAGE> 158
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA") and is subject to the fiduciary
responsibility provisions of ERISA.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
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, or (b) employee
benefit plans within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, but is not a trust fund that includes as
participants individual retirement accounts or H.R. 10 plans.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer,
(ii) securities that are part of an unsold allotment to or subscription by
the Buyer, if the Buyer is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph. 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
<PAGE> 159
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.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule
144A.
6. Will the Buyer be purchasing the Rule 144A Securities only for
the Buyer's own account?
Yes No
If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for
the account of a third party (including any separate account) in reliance
on Rule 144A, the Buyer will only purchase for the account of a third party
that at the time is a "qualified institutional buyer" within the meaning of
Rule 144A. In addition, the Buyer agrees that the Buyer will not purchase
securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate
steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of "qualified institutional buyer" set
forth in Rule 144A.
7. 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 Rule 144A
Securities will constitute a reaffirmation of this certification as of the
date of such purchase.
Print Name of Buyer
By:
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
<PAGE> 160
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is
attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer 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 ("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,
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.
____ The Buyer owned $___________________ in securities (other than
the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made 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
<PAGE> 161
only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities
will constitute a reaffirmation of this certification by the undersigned as
of the date of such purchase.
Print Name of Buyer
By:
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Buyer
By:
Name:
Title:
Date:
Exhibit R
BENEFIT PLAN AFFIDAVIT
State Street Bank and Trust Company, as Trustee
225 Franklin Street
Boston, MA 02110
Attn: Corporate Trust Department, PNC 2000-7
PNC Mortgage Securities Corp.
75 North Fairway Drive
Vernon Hills, IL 60061
RE: PNC MORTGAGE SECURITIES CORP.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-7
(THE "TRUST") CLASS [A-1] [X] CERTIFICATES
<PAGE> 162
(THE "PURCHASED CERTIFICATES")
Under penalties of perjury, I, _____________________, declare that, to
the best of my knowledge and belief, the following representations are
true, correct and complete; and
1. That I am the _______________ of __________________ (the
"Purchaser"), whose taxpayer identification number is ___________, and on
behalf of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate
representing an interest in the Trust.
3. That either:
(a) the Purchaser is not an employee benefit or other plan subject to
the prohibited transaction provisions 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") or any person (including an
investment manager, a named fiduciary or a trustee of any such plan)
acting, directly or indirectly, on behalf of or purchasing the Purchased
Certificate with "plan assets" of any such plan; or
(b) the acquisition and holding of the Purchased Certificate is
eligible for the exemptive relief available under Department of Labor
Prohibited Transaction Class Exemption 84-14, 91-38, 90-1, 95-60 or 96-23.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to
be duly executed on its behalf, by its duly authorized officer this _____
day of __________________, 20__.
[Purchaser]
By:
Its:
Personally appeared before me ______________________, known or proved to me
to be the same person who executed the foregoing instrument and to be a
________________ of the Purchaser, and acknowledged to me that (s)he
executed the same as his/her free act and deed and as the free act and deed
of the Purchaser.
SUBSCRIBED and SWORN to before me this day of ____________, 20__.
Notary Public
