<PAGE> 1
CONFORMED COPY
PNC MORTGAGE SECURITIES CORP.,
as Depositor and Master Servicer
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
POOLING AND SERVICING AGREEMENT
$258,835,943.00
PNC Mortgage Securities Corp.
Mortgage Pass-Through Certificates
Series 2000-9
Cut-Off Date: December 1, 2000
This Pooling and Servicing Agreement, dated and effective as of
December 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 REMIC I
Regular Interests and the Class R-1 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 REMIC I Regular
Interests and the Class R-1 Certificates. Thereafter on the Closing Date,
the Company will acquire the Certificates (other than the Class R-1
Certificates) from REMIC II as consideration for its transfer to REMIC II
of the REMIC I Regular Interests (other than the Excess Amount) and will be
the owner of the Certificates. The Company has duly authorized the
execution and delivery of this Agreement to provide for (i) the conveyance
to the Trustee of the Mortgage Loans and the issuance to the Company of the
REMIC I Regular Interests and the Class R-1 Certificates representing in
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the aggregate the entire beneficial ownership of REMIC I and (ii) the
conveyance to the Trustee of the REMIC I Regular Interests (other than the
Excess Amount) and the issuance to the Company of the Certificates (other
than the Class R-1 Certificates) representing in the aggregate the entire
beneficial interest of REMIC II. 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 REMIC I Regular Interests and the
Class R-1 Certificates. All covenants and agreements made by the Company
and the Trustee herein with respect to the REMIC I Regular Interests are
for the benefit of the Holders from time to time of the Certificates (other
than the Class R-1 Certificates). The Company is entering into this
Agreement, and the Trustee is accepting the two separate trusts created
hereby, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged.
The Certificates issued hereunder have been offered for sale pursuant
to a Prospectus, dated November 28, 2000, and a Prospectus Supplement,
dated December 26, 2000, of the Company (together, the "Prospectus"). The
Trust Fund and the REMIC II Trust Fund created hereunder are collectively
intended to be the "Trust" described in the Prospectus 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 and/or
Assumed Final Maturity Date, as applicable, for the REMIC I Regular
Interests and the Certificates:
REMIC I Interests
<TABLE>
<CAPTION>
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-L Regular Variable (2) $ 89,637,452.00 December 2030
Class A-2-L Regular Variable (2) 60,006,255.00 December 2030
Class A-3-L Regular Variable (2) 45,312,686.00 December 2030
Class A-4-L Regular Variable (3) 60,644,000.00 December 2030
Class B-L Regular Variable (2) 3,235,450.00 December 2030
Class R-2-L Regular 7.200% 50.00 December 2030
Excess Amount(4) Regular ----- ----- December 2030
Class R-1+ Residual 7.200% 50.00 December 2030
* The Distribution Date in the specified month, which is the month
<PAGE> 3
following the month the latest maturing Mortgage Loan matures.
+ The Class R-1 Certificates are entitled to receive the applicable
Residual Distribution Amount and any Excess Liquidation Proceeds.
(1) Interest distributed to the REMIC I Regular Interests (other than the
Excess Amount) and the Class R-1 Certificates on each Distribution Date
will have accrued at the applicable per annum Certificate Interest Rate on
the Class Principal Balance 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, the Certificate Interest Rate on the Class
A-1-L, Class A-2-L, Class A-3-L and Class B-L Regular Interests shall equal
the weighted average of the Pass-Through Rates on the Mortgage Loans as of
the second preceding Due Date.
(3) On each Distribution Date on or before the Distribution Date in
September 2005, the Certificate Interest Rate on the Class A-4-L Regular
Interest shall equal the weighted average of the Pass-Through Rates on the
Mortgage Loans as of the second preceding Due Date less 0.040% per annum.
On each Distribution Date on or after the Distribution Date in October
2005, the Certificate Interest Rate on the Class A-4-L Regular Interest
shall equal the weighted average of the Pass-Through Rates on the Mortgage
Loans as of the second preceding Due Date.
(4) For each Distribution Date, the Excess Amount shall be entitled to
interest accrued at a per annum rate of 0.196% on the outstanding Principal
Balance of each Mortgage Loan as of the second preceding Due Date.
</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 REMIC I Regular Interests will be designated
regular interests in REMIC I and the Class R-1 Certificates will be
designated the sole class of residual interest in REMIC I, for purposes of
the REMIC Provisions.
REMIC II Interests
<TABLE>
<CAPTION>
Class Designation
for each REMIC II
Regular Interest
and the Class R-2 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) $ 89,637,452.00 December 2030(3)
Class A-2 Regular Variable (4) 60,006,255.00 December 2030(3)
Class A-3 Regular Variable (5) 45,312,686.00 December 2030(3)
Class A-4 Regular Variable (6) 60,644,000.00 December 2030(3)
Class X Regular Variable (7) ----- September 2005
Class B Regular Variable (8) 3,235,450.00 December 2030
<PAGE> 4
Class R-2+ Residual 7.200% 50.00 December 2030
* Except with respect to the Class X Certificates, the Distribution Date in
the specified month, which is the month following the month the latest
maturing Mortgage Loan matures; and with respect to the Class X
Certificates, the Distribution Date in the specified month, which
Distribution Date is the last Distribution Date on which the Class X
Certificates are entitled to receive distributions of interest, if any, as
described in note (7) below.
+ The Class R-2 Certificates are entitled to receive the applicable
Residual Distribution Amount.
(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 X Notional Amount, as applicable,
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
September 2005, the Certificate Interest Rate on the Class A-1 Certificates
shall equal the lesser of (i) 7.200% 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 on or after the Distribution
Date in October 2005, the Certificate Interest Rate on the Class A-1
Certificates shall equal the weighted average of the Pass-Through Rates on
the Mortgage Loans as of the second preceding Due Date.
(3) Class A Certificates purchased before the Distribution Date in
September 2005 shall have an Assumed Final Maturity Date, which is the
Distribution Date in September 2005, the date such Certificates are
required pursuant to the Mandatory Certificate Purchase Agreement to be
purchased by CDC. Class A Certificates (i) purchased before the Assumed
Final Maturity Date but not purchased by CDC on such date pursuant to the
Mandatory Certificate Purchase Agreement or (ii) purchased after the
Assumed Final Maturity Date shall have the Final Maturity Date indicated in
the table above.
(4) On each Distribution Date on or before the Distribution Date in
September 2005, the Certificate Interest Rate on the Class A-2 Certificates
shall equal the lesser of (i) 6.850% 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 on or after the Distribution
Date in October 2005, the Certificate Interest Rate on the Class A-2
Certificates shall equal the weighted average of the Pass-Through Rates on
the Mortgage Loans as of the second preceding Due Date.
(5) On each Distribution Date on or before the Distribution Date in
September 2005, the Certificate Interest Rate on the Class A-3 Certificates
shall equal the lesser of (i) 7.190% 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 on or after the Distribution
Date in October 2005, the Certificate Interest Rate on the Class A-3
Certificates shall equal the weighted average of the Pass-Through Rates on
the Mortgage Loans as of the second preceding Due Date.
(6) On each Distribution Date on or before the Distribution Date in
September 2005, the Certificate Interest Rate on the Class A-4 Certificates
shall equal the lesser of (i) 7.200% per annum and (ii) the weighted
<PAGE> 5
average of the Pass-Through Rates on the Mortgage Loans as of the second
preceding Due Date less 0.040% per annum. On each Distribution Date on or
after the Distribution Date in October 2005, the Certificate Interest Rate
on the Class A-4 Certificates shall equal the weighted average of the Pass-
Through Rates on the Mortgage Loans as of the second preceding Due Date.
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 September 2005, the Certificate Interest Rate on the
Class X Certificates shall equal the excess, if any, of (A) the weighted
average of the Pass-Through Rates on the Mortgage Loans as of the second
preceding Due Date over (B) the weighted average (weighted by Class
Principal Balance) of (i) the Certificate Interest Rates on the Class A-1,
Class A-2 and Class A-3 Certificates and (ii) the Certificate Interest Rate
on the Class A-4 Certificates plus 0.040% per annum. On and after the
Distribution Date in October 2005, the Class X Certificates shall not be
entitled to receive any distributions of any kind.
(8) On each Distribution Date, the Certificate Interest Rate on the Class B
Certificates shall equal the weighted average of the Pass-Through Rates on
the Mortgage Loans as of the second preceding Due Date.
</TABLE>
As provided herein, with respect to REMIC II, the Company will cause
an election to be made on behalf of REMIC II to be treated for federal
income tax purposes as a REMIC. The Certificates (other than the Class R-1
and Class R-2 Certificates) will be designated regular interests in REMIC
II, and the Class R-2 Certificates will be designated the sole class of
residual interest in REMIC II, for purposes of the REMIC Provisions. As of
the Cut-Off Date, the Mortgage Loans have an aggregate Principal Balance of
$258,835,943.22 and the Certificates have an Aggregate Certificate
Principal Balance of $258,835,943.00.
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 REMIC I Regular Interests created hereunder
as hereinafter provided;
WHEREAS, the Company has been duly authorized to (i) create a trust
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("REMIC II") to hold the REMIC I Regular Interests (other than the Excess
Amount) and (ii) sell undivided beneficial ownership interests in REMIC II
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.
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:
Additional Collateral: Any real or personal property, securities,
cash, instruments, contracts (including any third-party guarantee) or other
documents constituting or evidencing collateral pledged as additional
security for a Mortgage Loan (other than the related Mortgaged Property).
Additional Collateral Loan: A Mortgage Loan secured by, in addition to
the related Mortgaged Property, Additional Collateral.
Adjustment Date: As to each Mortgage Loan, a Due Date on or about the
fifth anniversary of the first Due Date and every six months or annually
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.
Agent: The meaning given to such term in Section 3.17(a).
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,
<PAGE> 7
the assignment or mortgage of the related Cooperative Lease from the
Mortgagor to the originator of the Cooperative Loan.
Assumed Final Maturity Date: With respect to the Class A
Certificates, the date set forth in note (3) to the table entitled "REMIC
II Interests" in the Preliminary Statement hereto.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 8.11.
Authorized Denomination: With respect to the Class B Certificates, an
initial Certificate Principal Balance equal to $25,000 and multiples of $1
in excess thereof, except that one Certificate of such Class may be issued
in an amount that is not an integral multiple of $1. With respect to the
Class A Certificates, an initial Certificate Principal Balance equal to
$100,000 and multiples of $1 in excess thereof. With respect to the Class
X Certificates, a Class X Notional Amount as of the Cut-Off Date equal to
$100,000 and multiples of $1 in excess thereof. With respect to each Class
of the Residual Certificates, one Certificate with a Percentage Interest
equal to 0.01% and one Certificate with a Percentage Interest equal to
99.99%.
Bankruptcy Coverage: $100,000 less (a) any scheduled or permissible
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
(determined in the case of the Insured Certificates, without giving effect
to the Certificate Insurance Policy).
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, Class X and Class B
Certificates, beneficial ownership and transfers of which shall be made
through book entries as described in Section 5.07.
<PAGE> 8
Business Day: Any day other than a Saturday, a Sunday, or a day on
which the Certificate Insurer (with respect to matters hereunder affecting
the Certificate Insurer) or 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,
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.
CDC: CDC Financial Products Inc.
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
and B 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
<PAGE> 9
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, Section 4.01 and Section 4.04.
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. For so long as no Certificate Insurer
Default exists (and (i) on or before the Distribution Date in September
2005, whether or not any payments with respect to Deficiency Amounts or
Preference Amounts have been made and (ii) after the Distribution Date in
September 2005, only if and for so long as the Class A-4 Reimbursement
Amount is greater than zero), the Certificate Insurer shall be deemed to be
the sole Holder of all outstanding Insured Certificates (other than the
right to receive distributions on such Insured Certificates, except as
provided in Section 3.21); provided, that the Certificate Insurer shall
have no power without the consent of the Owner of each Certificate affected
thereby to: (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 the Insured
Certificates; (ii) reduce the percentage of Percentage Interests specified
in 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 the REMIC II Trust Fund; (iv) modify any provision in any way which
would permit an earlier retirement of the Certificates; or (v) amend this
definition of "Certificateholder or Holder." With respect to the REMIC I
Regular Interests (other than the Excess Amount), the owner of such REMIC I
Regular Interests, which as of the Closing Date shall be the Trustee. With
respect to the Excess Amount, the person in whose name the Excess Amount is
registered in the Certificate Register.
Certificate Insurance Policy: The Certificate Guaranty Insurance
Policy No. 34012 issued by the Certificate Insurer in respect of the Class
A-4 Certificates, a copy of which is attached hereto as Exhibit K.
Certificate Insurer: MBIA Insurance Corporation or its successors in
interest.
Certificate Insurer Default: The existence and continuance of any of
<PAGE> 10
the following: (a) a failure by the Certificate Insurer to make a payment
required under the Certificate Insurance Policy in accordance with its
terms; (b) the entry of a decree or order of a court or agency having
jurisdiction in respect of the Certificate Insurer in an involuntary case
under any present or future Federal or state bankruptcy, insolvency or
similar law appointing a conservator or receiver or liquidator or other
similar official of the Certificate Insurer or of any substantial part of
its property, or the entering of an order for the winding up or liquidation
of the affairs of the Certificate Insurer and the continuance of any such
decree or order undischarged or unstayed and in force for a period of 90
consecutive days; (c) the Certificate Insurer shall consent to the
appointment of a conservator or receiver or liquidator or other similar
official in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Certificate
Insurer or of or relating to all or substantially all of its property; or
(d) the Certificate Insurer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of or
otherwise voluntarily commence a case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar statute, make an
assignment for the benefit of its creditors, or voluntarily suspend payment
of its obligations.
Certificate Insurer Premium: The "Premium," with respect to the Class
A-4 Certificates, as set forth in Section 3.03 of the Insurance Agreement.
Certificate Interest Rate: For each Class of Certificates and REMIC I
Regular Interests, the per annum rate set forth as the Certificate Interest
Rate for such Class in the Preliminary Statement hereto.
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 REMIC I Regular Interests or the Class R-1 Certificates
having the same priority and rights to payments on the Mortgage Loans from
the REMIC I Available Distribution Amount, and all REMIC II Regular
Interests or the Class R-2 Certificates having the same priority and rights
to payments on the REMIC I Regular Interests from the REMIC II Available
Distribution Amount, as applicable, which REMIC I Regular Interests, REMIC
II Regular Interests and Residual Certificates, as applicable, shall be
designated as a separate Class, and which, in the case of the Certificates,
shall be set forth in the applicable forms of Certificates attached hereto
as Exhibits A and B. Each Class of REMIC I Regular Interests and the Class
R-1 Certificates shall be entitled to receive the amounts allocated to such
Class pursuant to the definition of "REMIC I Distribution Amount" only to
the extent of the REMIC I Available Distribution Amount for such
Distribution Date remaining after distributions in accordance with prior
clauses of the definition of "REMIC I Distribution Amount" and each Class
<PAGE> 11
of Certificates (other than the Class R-1 Certificates) shall be entitled
to receive the amounts allocated to such Class pursuant to the definition
of "REMIC II Distribution Amount" only to the extent of the REMIC II
Available Distribution Amount for such Distribution Date remaining after
distributions in accordance with prior clauses of the definition of "REMIC
II Distribution Amount."
Class A Certificates: The Class A-1, Class A-2, Class A-3 and Class A-
4 Certificates.
Class A-L Regular Interests: The Class A-1-L, Class A-2-L, Class A-3-L
and Class A-4-L Regular Interests.
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 A-1-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class A-2 Certificates: The Certificates designated as "Class A-2" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class A-2-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class A-3 Certificates: The Certificates designated as "Class A-3" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class A-3-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class A-4 Certificates: The Certificates designated as "Class A-4" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class A-4 Covered Interest Shortfall Amount: For any Distribution Date
on or before the Distribution Date in September 2005, an amount equal to
the product of (a) the portion of the amount, if any, for such Distribution
Date specified in clause (ii) of the definition of "Uncompensated Interest
Shortfall" that is allocated to the Class A-1-L, Class A-2-L, Class A-3-L
and Class A-4-L Regular Interests pursuant to such definition and (b) a
fraction, the numerator of which is the amount for such Distribution Date
set forth in clause (a)(ii)(D) of the definition of "REMIC II Distribution
Amount" and the denominator of which is the sum of the amounts for such
Distribution Date set forth in clauses (a)(ii)(A), (a)(ii)(B), (a)(ii)(C),
(a)(ii)(D) and (a)(ii)(E) of the definition of "REMIC II Distribution
Amount".
Class A-4 Reimbursement Amount: The sum of (a) all amounts previously
paid by the Certificate Insurer under the Certificate Insurance Policy
<PAGE> 12
which have not been previously reimbursed and (b) interest on the foregoing
at the Late Payment Rate from the date such amount was paid by the
Certificate Insurer until paid in full.
Class A-4 Reserve Fund: The separate trust account maintained by the
Master Servicer and held by the Trustee, 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 Class A-4
Certificateholders, or any other account serving a similar function
acceptable to the Rating Agencies and the Certificate Insurer, and which
account provides that the Trustee may make, or cause to be made,
withdrawals therefrom in accordance with Section 3.16.
Class A-4-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class B Certificates: The Certificates designated as "Class B" on the
face thereof in substantially the form attached hereto as Exhibit A.
Class B-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
Class Principal Balance: For any Class of Certificates and for any
Class of Regular Interests, 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 or the Holders of the Regular Interests from
principal payments on the Mortgage Loans or the REMIC I Regular Interests,
as applicable, as reduced from time to time by (x) distributions of
principal to the Certificateholders or the Holders of the Regular Interests
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
and Regular Interests pursuant to the definition of "Realized Loss" shall
be deemed effective prior to the determination and distribution of
principal on such Class pursuant to the definitions of "REMIC I
Distribution Amount" and "REMIC II Distribution Amount." Notwithstanding
the foregoing, any amounts distributed in respect of losses pursuant to
paragraph (I)(viii) of the definition of "REMIC I Distribution Amount"
shall not cause a further reduction in the Class Principal Balance of the
Class B-L Regular Interest or its Corresponding Class. The Class Principal
Balance for the Class A-1 Certificates shall be referred to as the "Class A-
1 Principal Balance," the Class Principal Balance for the Class A-1-L
Regular Interest shall be referred to as the "Class A-1-L Principal
Balance" and so on. The Class X Principal Balance shall each be zero.
Exclusively for the purpose of determining any subrogation rights of the
Certificate Insurer arising under Section 3.21 hereof, "Class Principal
Balance" of the Class A-4 Certificates shall not be reduced by the amount
of any payments made by the Certificate Insurer in respect of principal on
<PAGE> 13
such Certificates under the Certificate Insurance Policy, except to the
extent such payments have been reimbursed to the Certificate Insurer
pursuant to the provisions of this Agreement.
Class R-1 Certificates: The Certificates designated as "Class R-1" on
the face thereof in substantially the form attached hereto as Exhibit B,
which have been designated as the single class of "residual interest" in
REMIC I pursuant to Section 2.01.
Class R-2 Certificates: The Certificates designated as "Class R-2" 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 II pursuant to Section 2.05.
Class R-2-L Regular Interest: The uncertificated partial undivided
beneficial ownership interest in REMIC I which constitutes a REMIC I
Regular Interest and is entitled to distributions as set forth herein.
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 Class Principal Balance of the Class A and Residual Certificates
immediately prior to such Distribution 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: December 28, 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
things, the sale of Cooperative Stock.
<PAGE> 14
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 2000-9.
Corporation: Any Person (other than an individual, partnership, joint
venture or unincorporated organization) incorporated, associated,
organized, chartered or existing under the laws of any state or under the
federal laws of the United States of America; provided, that such Person
have indefinite existence under the law of its domicile.
Corresponding Class: With respect to the Certificates and the REMIC I
Regular Interests, the "Corresponding Class" shall be as indicated in the
following table:
Class A-1-L Class A-1
Class A-2-L Class A-2
Class A-3-L Class A-3
Class A-4-L Class A-4
Class B-L Class B
Class R-2-L Class R-2
<PAGE> 15
Credit Support Depletion Date: The later of (i) the first Distribution
Date on which the Class B Principal Balance has been or will be reduced to
zero as a result of principal distributions thereon and the allocation of
Realized Losses on such Distribution Date and (ii) the date on which
coverage under the Mortgage Portfolio Insurance Policy has been exhausted.
CSFB: Credit Suisse First Boston Corporation.
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
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
<PAGE> 16
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.
Cut-Off Date: December 1, 2000.
Deficiency Amount: With respect to any Distribution Date on or before
the Distribution Date in September 2005 and the Class A-4 Certificates, the
sum of (i) the amount, if any, by which the amount available to be paid as
interest to the Class A-4 Certificates, pursuant to the priority of payment
set forth in the definition of "REMIC II Distribution Amount", plus any
Class A-4 Covered Interest Shortfall Amount available to be paid from the
Class A-4 Reserve Fund, is less than (A) the product of (1) 1/12 of the
Certificate Interest Rate for the Class A-4 Certificates and (2) the Class
A-4 Principal Balance immediately prior to such Distribution Date, minus
(B) the sum of (1) the portion of Uncompensated Interest Shortfall
attributable to Curtailment Shortfalls which is allocable to the Class A-4
Certificates, (2) the portion of Uncompensated Interest Shortfall
attributable to the failure of the Master Servicer to pay Compensating
Interest which is allocable to the Class A-4 Certificates and (3) any
interest shortfalls related to the Relief Act allocable to the Class A-4
Certificates and (ii) the principal portion of any Realized Losses
allocable to the Class A-4 Certificates on such Distribution Date.
Definitive Certificates: Certificates in definitive, fully registered
and certificated form.
Depositary Agreement: The Letter of Representations, dated December
27, 2000 by and among DTC, the Company and the Trustee.
Destroyed Mortgage Note: A Mortgage Note the original of which was
<PAGE> 17
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 Date: With respect to distributions on the REMIC I
Regular Interests and 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 January 25, 2001. The
"related Due Date" for any Distribution Date is the Due Date immediately
preceding such Distribution Date.
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
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, the Custodial Account
for Reserves and the Expense Account 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;
Repurchase agreements on obligations described in clause (i) of
this definition of "Eligible Investments", provided that the unsecured
<PAGE> 18
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;
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;
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;
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
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;
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;
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
Such other investments the investment in which will not, as
<PAGE> 19
evidenced by a letter from each of the Rating Agencies and with notice
to the Certificate Insurer, result in the downgrading or withdrawal of
the Ratings (determined in the case of the Insured Certificates,
without giving effect to the Certificate Insurance Policy);
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 Certificate.
Event of Default: Any event of default as specified in Section 7.01.
Excess Amount: The uncertificated partial undivided beneficial
ownership interest in REMIC I which constitutes a REMIC I Regular Interest
and is entitled to distributions as set forth herein. For each
Distribution Date, the Excess Amount shall be entitled to interest accrued,
at a per annum rate equal to the aggregate the Premium Payment Rates with
respect to each of the Mortgage Portfolio Insurance Policy and the Special
Hazard Insurance Policy, on the outstanding Principal Balance of each
Mortgage Loan as of the second preceding Due Date.
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.
Expense 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 3.19,
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 deposited in the Expense
Account shall be held in trust for the Certificateholders and the
beneficial owners of the Expense Account as set forth in Section 3.19.
FDIC: Federal Deposit Insurance Corporation, or any successor thereto.
FHA: Federal Housing Administration, or any successor thereto.
<PAGE> 20
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 the REMIC I
Regular Interests and the Certificates, the date set forth in the
applicable table contained in the Preliminary Statement hereto.
Fraud Coverage: During the period prior to the first anniversary of
the Cut-Off Date, 1.00% 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 REMIC I Regular Interests and the Class R-1
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 REMIC I Regular Interests and the Class R-1
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 anniversary of the Cut-Off Date, 1.00%, and on the second, third and
fourth anniversaries of the Cut-Off Date, 0.50%, 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 REMIC I Regular Interests and the Class R-1 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
(determined in the case of the Insured Certificates, without giving effect
to the Certificate Insurance Policy).
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 Index by reference to which the Mortgage Interest Rate for
any Mortgage Loan is calculated pursuant to the terms of the related
Mortgage Note, which Index shall be either (i) One-Year CMT, which is 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
<PAGE> 21
recently available as of 45 days before the applicable Adjustment Date or
(ii) Six-Month Libor, which is the rate for six-month U.S. dollar
denominated deposits offered in the London interbank market as published in
The Wall Street Journal and most recently available as of the first
business day of the month immediately preceding the month of the applicable
Adjustment Date. In the event either 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
with a DTC Participant, either directly or indirectly.
Insurance Agreement: The Insurance Agreement, dated as of December 1,
2000, among the Certificate Insurer, the Trustee and the Company.
Insurance Proceeds: Amounts paid or payable by the insurer under the
Surety Bonds (with respect to any Additional Collateral Loan), 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, any FHA insurance policy or VA guaranty
and amounts paid or payable by the Mortgage Portfolio Insurer or the
Special Hazard Insurer under the Mortgage Portfolio Insurance Policy or the
Special Hazard Insurance Policy, respectively, but excluding the
Certificate Insurance Policy.
Insured Certificates: The Class A-4 Certificates.
Insured Payment: With respect to the Insured Certificates, (i) as of
any Distribution Date, any Deficiency Amount and (ii) any Preference
Amount.
Interest Distribution Amount: On any Distribution Date, for any Class
of the REMIC I Regular Interests and the Class R-1 Certificates, the amount
of interest accrued on the respective Class Principal Balance 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. The computation of
interest accrued shall be made on the basis of a 360-day year of twelve 30-
day months.
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
<PAGE> 22
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.
Last Scheduled Distribution Date: With respect to any Class of
Certificates, the Final Maturity Date for such Class.
Late Payment Rate: The rate of interest publicly announced by
Citibank, N.A. at its principal office in New York, New York as its prime
rate (any change in such prime rate of interest to be effective on the date
such change is announced by Citibank, N.A.) plus two (2) percentage points.
The Late Payment Rate shall be computed on the basis of a year of 365 days
calculating the actual number of days elapsed. In no event shall the Late
Payment Rate exceed the maximum rate permissible under law applicable to
the Insurance Agreement limiting interest rates.
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
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, including Insurance Proceeds and, in the case of Additional
Collateral Loans, any proceeds realized with respect to any Additional
Collateral, including any payment under the Surety Bonds.
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 B Certificates or (ii)
a 100% interest in a class of securities representing such interest in such
<PAGE> 23
Class.
Mandatory Certificate Purchase Agreement: The Mandatory Certificate
Purchase Agreement, dated as of December 28, 2000, between CDC and the
Agent.
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.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor thereto.
MERS Loan: Any Mortgage Loan registered on the MERSr System for which
MERS appears as the mortgagee of record on the Mortgage or on an assignment
thereof.
MERSr System: The system of electronically recording transfers of
Mortgages maintained by MERS.
MIN: The Mortgage Identification Number for a MERS Loan.
MOM Loan: A Mortgage Loan that was registered on the MERSr System at
the time of origination thereof and for which MERS appears as the mortgagee
of record on the Mortgage.
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.
Moody's: Moody's Investors Service, Inc., provided that at any time it
be a Rating Agency.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note.
Mortgage File: The following documents or instruments with respect to
<PAGE> 24
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
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 2000-9, 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; provided, however, that in the event the
Mortgage Note is endorsed in blank as of the Closing Date, the Company
shall, within 45 days of the Closing Date, cause such Mortgage
Note to be endorsed pursuant to the terms set forth herein; provided,
further, 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 Note pursuant to the terms otherwise set forth in this clause
(i);
The Buydown Agreement, if applicable;
A Mortgage that is either
(1) (x) the original recorded Mortgage with evidence of
recording thereon for the jurisdiction in which the Mortgaged
Property is located (which original recorded Mortgage, in the
case of a MOM Loan, shall set forth the MIN and shall indicate
that the Mortgage Loan is a MOM Loan), (y) unless the Mortgage
Loan is a MERS Loan, 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 2000-9", and (z) unless the Mortgage Loan is a MOM Loan,
recorded originals 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 (or, in
the case of a MERS Loan other than a MOM Loan, from the
originator to MERS); or
(2) (x) a copy of the Mortgage (which Mortgage, in the case
of a MOM Loan, shall set forth the MIN and shall indicate that
the Mortgage Loan is a MOM Loan) 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
<PAGE> 25
Lender as a true and correct copy the original of which has been
sent for recordation, (y) unless the Mortgage Loan is a MERS
Loan, 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-
9", and (z) unless the Mortgage Loan is a MOM Loan, 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 (or, in the case of a MERS Loan other than a MOM
Loan, from the originator to MERS);
provided, however, that in the event the Mortgage assignment described
in clause (iii)(1)(y) or (iii)(2)(y) above, as applicable, is executed
in blank as of the Closing Date, the Company shall, within 45 days of
the Closing Date, cause such assignment to be executed pursuant to the
terms set forth herein; provided, further, 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)(y) or (iii)(2)(y);
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;
For any Mortgage Loan that has been modified or amended, the
original instrument or instruments effecting such modification or
amendment; and
For each Additional Collateral Loan, a copy of the security
agreement or guaranty constituting part of the related Additional
Collateral;
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 2000-9" 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;
A counterpart of the Cooperative Lease and the Assignment of
<PAGE> 26
Proprietary Lease to the originator of the Cooperative Loan with
intervening assignments showing an unbroken chain of title from such
originator to the Trustee;
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;
The original recognition agreement by the Cooperative of the
interests of the mortgagee with respect to the related Cooperative
Loan;
The Security Agreement;
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;
Copies of the filed UCC-3 assignments of the security interest
referenced in clause (vi) above showing an unbroken chain of title
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;
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;
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;
For any Cooperative Loan that has been modified or amended, the
original instrument or instruments effecting such modification or
amendment; and
For each Additional Collateral Loan, a copy of the security
agreement or guaranty constituting part of the related Additional
Collateral.
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:
<PAGE> 27
(i) its loan number,
the address of the Mortgaged Property,
the name of the Mortgagor,
the Original Value of the property subject to the Mortgage,
the Principal Balance as of the Cut-Off Date,
the Mortgage Interest Rate as of the Cut-Off Date and the Index,
Adjustment Date, Rate Ceiling, Rate Floor, Periodic Cap and Margin, as
applicable, borne by the Mortgage Note,
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,
the maturity of the Mortgage Note,
the Servicing Fee and the Master Servicing Fee,
whether it is an Additional Collateral Loan, and
(i) whether it is a MERS Loan and, if so, its MIN.
Mortgage Loans: The mortgage loans listed on the Mortgage Loan
Schedule and transferred and assigned to the Trustee pursuant hereto. With
respect to each Mortgage Loan that is a Cooperative Loan, "Mortgage Loan"
shall include, but not be limited to, the related Mortgage Note, Security
Agreement, Assignment of Proprietary Lease, Cooperative Stock Certificate,
Cooperative Lease and (with respect to each Additional Collateral Loan) the
security agreements and guaranties constituting part of the related
Additional Collateral, and, with respect to each Mortgage Loan other than a
Cooperative Loan, "Mortgage Loan" shall include, but not be limited to the
Mortgages, the related Mortgage Notes and (with respect to each Additional
Collateral Loan) the security agreements and guaranties constituting part
of the related Additional Collateral.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Pool: All of the Mortgage Loans.
Mortgage Pool Insurer: The Mortgage Portfolio Insurer.
Mortgage Portfolio Insurance Policy: The mortgage portfolio insurance
policy, a form of which is attached as Exhibit Q to this Agreement, or any
replacement insurance policy obtained by the Master Servicer pursuant to
Section 3.22, in the total initial amount equal to 6.00% of the aggregate
unpaid principal balance of the Mortgage Loans as of the Cut-Off Date. The
initial Mortgage Portfolio Insurance Policy shall be issued by General
<PAGE> 28
Electric Mortgage Insurance Corporation.
Mortgage Portfolio Insurer: Initially, General Electric Mortgage
Insurance Corporation, or any successor thereto or the named insurer in any
replacement policy obtained by the Master Servicer pursuant to Section
3.22.
Mortgage Portfolio Insurance Premium Sub-Account <*> : An
administrative subaccount established and maintained by the Trustee within
the Expense Account for the payment of the Premiums with respect to the
Mortgage Portfolio Insurance Policy.
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: With respect to the Insured Certificates, the telephonic or
telegraphic notice, promptly confirmed in writing by telecopy substantially
in the form of Exhibit A attached to the Certificate Insurance Policy, the
original of which is subsequently delivered by registered or certified
mail, from the Trustee specifying the Insured Payment which shall be due
and owing on the applicable Distribution Date.
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, (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, (e) in the
case of Moody's, 99 Church Street, New York, New York 10007, or such other
address as may hereafter be furnished to the Trustee and Master Servicer in
<PAGE> 29
writing by Moody's and (f) in the case of the Certificate Insurer, to MBIA
Insurance Corporation, 113 King Street, Armonk, New York 10504, Attn:
Insured Portfolio Management - Structured Finance (IPM-SF), or such other
address as may hereafter be furnished to the Trustee and Master Servicer in
writing by the Certificate Insurer.
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.
Opinion of Counsel: A written opinion of counsel, who shall be
reasonably acceptable to the Trustee and who may be counsel (including in-
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. "Original Value" shall exclude the value
of any Additional Collateral.
Owner: Each Holder of an Insured Certificate who, on the applicable
Distribution Date, is entitled under the terms of the Insured Certificates
to payment thereunder.
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 (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 and
(iv) the Excess Amount. 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
<PAGE> 30
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
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: For the first Distribution Date, the period from the
Cut-Off Date through January 14, 2001, inclusive; and for 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;
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
<PAGE> 31
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 II, 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
Certificates;
with respect to any Class X Certificate, one percent (1%) of such
Certificate's Percentage Interest as calculated by paragraph (a)(ii)
of this definition; and
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 or REMIC II, as applicable, 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.
<PAGE> 32
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.
Preference Amount: Any amount previously distributed to an Owner on
the Insured Certificates that is recoverable and sought to be recovered as
a voidable preference by a trustee in bankruptcy pursuant to the United
States Bankruptcy Code (11 U.S.C.), as amended from time to time, in
accordance with a final nonappealable order of a court having competent
jurisdiction.
Premium: With respect to each of the Mortgage Portfolio Insurance
Policy and the Special Hazard Insurance Policy, the amount that is due and
payable to maintain each such policy in full force and effect pursuant to
the terms of the Mortgage Portfolio Insurance Policy or the Special Hazard
Insurance Policy, as applicable.
Premium Payment Amount: With respect to the Mortgage Portfolio
Insurance Policy, for any Distribution Date, an amount equal to the
aggregate, for each Mortgage Loan, of the product of (a) 1/12th of the
applicable Premium Payment Rate and (b) the outstanding principal balance
of such Mortgage Loan as of the second preceding Due Date. With respect to
the Special Hazard Insurance Policy, for any Distribution Date, an amount
equal to the aggregate, for each Mortgage Loan, of the product of (a)
1/12th of the applicable Premium Payment Rate and (b) the outstanding
principal balance of such Mortgage Loan as of the second preceding Due
Date.
Premium Payment Rate: For each Mortgage Loan and with respect to each
of the Mortgage Portfolio Insurance Policy and the Special Hazard Insurance
Policy, 0.14% per annum and 0.056% per annum, respectively.
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
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
<PAGE> 33
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 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.
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.
<PAGE> 34
Pro Rata Allocation: With respect to Realized Losses on Mortgage
Loans, the allocation of the principal portion of such losses to all
Classes of REMIC I Regular Interests (other than the Excess Amount) and the
Class R-1 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 REMIC I Regular Interests (other
than the Excess Amount) and the Class R-1 Certificates pro rata according
to the amount of interest accrued but unpaid on each such Class, in
reduction thereof, and then to such Classes pro rata according to their
respective Class Principal Balances in reduction thereof.
Any losses allocated to an outstanding Class of REMIC I Regular
Interests pursuant to this definition of "Pro Rata Allocation" in reduction
of the Class Principal Balance thereof shall also be allocated to the
Corresponding Class of Certificates in reduction of the Class Principal
Balances thereof by the same amount.
Prospectus: The Prospectus, dated November 28, 2000, and the
Prospectus Supplement, dated December 26, 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 (such Pass-Through Rate calculated without
reduction for interest with respect to the Excess Amount pursuant to clause
(iv) of the definition of "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.
<PAGE> 35
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted
under the related Mortgage Note.
Rate Floor: The minimum per annum Mortgage Interest Rate permitted
under the related Mortgage Note.
Rating Agencies: Initially, S&P and Moody's, 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 (determined in the case of
the Insured Certificates, without giving effect to the Certificate
Insurance Policy).
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.
Realized Losses allocated to any Class of REMIC I Regular Interests in
reduction of the Class Principal Balance thereof shall also be allocated to
the Corresponding Class of Certificates in reduction of the Class Principal
Balance thereof by the same amount.
Except for Special Hazard Losses in excess of the designated amount of
coverage under the Special Hazard Insurance Policy, Fraud Losses in excess
of the Fraud Coverage and Bankruptcy Losses in excess of the Bankruptcy
Coverage, Realized Losses (to the extent that (x) such losses are not
covered by the Mortgage Portfolio Insurance Policy or the Special Hazard
Insurance Policy, (y) coverage under the Mortgage Portfolio Insurance
Policy has been exhausted through the payment of claims or (z) the Mortgage
Portfolio Insurer or the Special Hazard Insurer defaults or otherwise does
not pay on a valid claim for such loss) shall be allocated among the REMIC
I Regular Interests and the Class R-1 Certificates (i) for Realized Losses
allocable to principal (a) first, to the Class B-L Regular Interest, until
the Class B-L Principal Balance has been reduced to zero and (b) second, to
the Class A-L and Class R-2-L Regular Interests and the Class R-1
Certificates, pro rata according to the Class Principal Balance thereof, in
reduction thereof; and (ii) for Realized Losses allocable to interest (a)
first, to the Class B-L Regular Interest, in reduction of accrued but
unpaid interest thereon and then in reduction of the Class B-L Principal
Balance and (b) second, to the Class A-L and Class R-2-L Regular Interests
<PAGE> 36
and the Class R-1 Certificates, pro rata according to accrued but unpaid
interest on such Classes, in reduction thereof, and then to the Class A-L
and Class R-2-L Regular Interests and the Class R-1 Certificates, pro rata
according to the Class Principal Balances thereof, in reduction thereof.
Special Hazard Losses in excess of the designated amount of coverage
under the Special Hazard Insurance Policy, Fraud Losses in excess of the
Fraud Coverage and Bankruptcy Losses in excess of the Bankruptcy Coverage
shall be allocated among the REMIC I Regular Interests (other than the
Excess Amount) and the Class R-1 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 REMIC I Regular Interests and the Class R-1
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 REMIC I Available Distribution Amount, and all
losses in respect of each Mortgage Loan that have been allocated to the
REMIC I Regular Interests and the Class R-1 Certificates on such
Distribution Date or prior Distribution Dates, then such excess will be
deemed a principal loss and will be allocated to the Class B-L Regular
Interest, 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.
Regular Interests: (i) With respect to REMIC I, the REMIC I Regular
Interests and (ii) with respect to REMIC II, the REMIC II Regular
Interests.
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, with respect to which a separate REMIC election is to be made.
REMIC I Available Distribution Amount: For any Distribution Date, the
sum of the following amounts with respect to the Mortgage Loans:
<PAGE> 37
(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, amounts received with respect to
the Mortgage Portfolio Insurance Policy and the Special Hazard Insurance
Policy, 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 REMIC I 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, the Servicing Fee and
the interest to which the Excess Amount is entitled for each Mortgage
Loan, any Certificate Insurer Premium 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, to the extent not previously distributed, of
all cash received by the Distribution Date 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.
<PAGE> 38
REMIC I Distribution Amount:
(I) For any Distribution Date prior to the Credit Support Depletion
Date, the REMIC I Available Distribution Amount for such Distribution Date
shall be distributed to the REMIC I Regular Interests, the Class R-1
Certificates and the Certificate Insurer in the following amounts and
priority, to the extent of the REMIC I Available Distribution Amount for
such Distribution Date remaining following prior distributions, if any, on
such Distribution Date:
(i) first, to the Class A-L and Class R-2-L Regular Interests and the
Class R-1 Certificates, concurrently, the sum of the Interest Distribution
Amounts for such Classes of Regular Interests and Certificates remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
second, to the Class A-L and Class R-2-L Regular Interests and
the Class R-1 Certificates, concurrently, the sum of the Interest
Distribution Amounts for such Classes of Regular Interests and
Certificates for the current Distribution Date, pro rata according to
their respective Interest Distribution Amounts;
third, to the Class A-L and Class R-2-L Regular Interests and the
Class R-1 Certificates, as principal, the Senior Principal
Distribution Amount, sequentially, as follows:
(a) first, sequentially, to the Class R-1 Certificates and
the Class R-2-L Regular Interest, until their respective Class
Principal Balances have each been reduced to zero;
(b) second, to the Class A-1-L Regular Interest, until the
Class A-1-L Principal Balance has been reduced to zero;
(c) third, to the Class A-2-L Regular Interest, until the
Class A-2-L Principal Balance has been reduced to zero; and
(d) fourth, to the Class A-3-L and Class A-4-L Regular
Interests, pro rata, until the Class A-3-L Principal Balance and
the Class A-4-L Principal Balance have each been reduced to zero;
fourth, to the Class B-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests remaining
unpaid from previous Distribution Dates;
fifth, to the Class B-L Regular Interest, the Interest
Distribution Amount for such Class of Regular Interests for the
current Distribution Date;
sixth, to the Class B-L Regular Interest, the Subordinate
Principal Distribution Amount, until the Class B-L Principal Balance
has been reduced to zero;
<PAGE> 39
seventh, to the Certificate Insurer, the Class A-4 Reimbursement
Amount;
eighth, to the Class B-L Regular Interest, the remaining portion,
if any, of the REMIC I 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 (I)(viii) of this definition of "REMIC I Distribution
Amount" shall not cause a further reduction in the Class B-L Principal
Balance; and
ninth, to the Class R-1 Certificates, the Residual Distribution
Amount for the Class R-1 Certificates for such Distribution Date.
(II) For any Distribution Date on or after the Credit Support
Depletion Date, the REMIC I Available Distribution Amount for such
Distribution Date shall be distributed to the REMIC I Regular Interests,
the Class R-1 Certificates and the Certificate Insurer in the following
amounts and priority, to the extent of the REMIC I Available Distribution
Amount for such Distribution Date remaining following prior distributions,
if any, on such Distribution Date:
(i) first, to the Class A-L and Class R-2-L Regular Interests and the
Class R-1 Certificates, the amount payable to each such Class of Regular
Interests and Certificates on prior Distribution Dates pursuant to clause
(I)(ii) or (II)(ii) of this definition of "REMIC I Distribution Amount",
and remaining unpaid, pro rata according to such amount payable to the
extent of amounts available;
second, to the Class A-L and Class R-2-L Regular Interests and
the Class R-1Certificates, concurrently, the sum of the Interest
Distribution Amounts for such Classes of Regular Interests and
Certificates for the current Distribution Date, pro rata according to
their respective Interest Distribution Amounts;
third, to the Class A-L and Class R-2-L Regular Interests and the
Class R-1 Certificates, pro rata according to Class Principal Balance,
as principal, the Senior Principal Distribution Amount;
fourth, to the Certificate Insurer, the Class A-4 Reimbursement
Amount for such Distribution Date; and
fifth, to the Class R-1 Certificates, the Residual Distribution
Amount for the Class R-1 Certificates for such Distribution Date.
(III) For any Distribution Date, the interest to which the Excess
Amount is entitled for such Distribution Date shall be deposited in the
Expense Account pursuant to Section 3.19.
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.
<PAGE> 40
REMIC I Trust Fund: All of the assets in the Trust Fund other than the
Class A-4 Reserve Fund and the Expense Account.
REMIC II: The segregated pool of assets consisting of the REMIC II
Trust Fund conveyed in trust to the Trustee for the benefit of the Holders
of the REMIC II Regular Interests and the Class R-2 Certificateholders
pursuant to Section 2.05, with respect to which a separate REMIC election
is to be made.
REMIC II Available Distribution Amount: For any Distribution Date, the
aggregate of all distributions to the REMIC I Regular Interests (other than
the Excess Amount) on such Distribution Date (other than any Class A-4
Covered Interest Shortfall Amount or Deficiency Amount deemed to have been
distributed pursuant to Section 4.01(ii)).
REMIC II Distribution Amount: The REMIC II Available Distribution
Amount for any Distribution Date shall be distributed to the Certificates
(other than the Class R-1 Certificates) in the following amounts and
priority, to the extent of the REMIC II Available Distribution Amount for
such Distribution Date remaining following prior distributions, if any, on
such Distribution Date:
(a) (i) to each of the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates, the amount distributed as principal to its respective
Corresponding Class on such Distribution Date and (ii) to the Class A-1,
Class A-2, Class A-3, Class A-4 and Class X Certificates, an amount up to
the aggregate amount distributed as interest to the Class A-1-L, Class A-2-
L, Class A-3-L and Class A-4-L Regular Interests on such Distribution Date,
concurrently, as follows: (A) to the Class A-1 Certificates, an amount
equal to the product of 1/12 of the Class A-1 Certificate Interest Rate and
the Class A-1 Principal Balance, (B) to the Class A-2 Certificates, an
amount equal to the product of 1/12 of the Class A-2 Certificate Interest
Rate and the Class A-2 Principal Balance, (C) to the Class A-3
Certificates, an amount equal to the product of 1/12 of the Class A-3
Certificate Interest Rate and the Class A-3 Principal Balance, (D) to the
Class A-4 Certificates, an amount equal to the product of 1/12 of the Class
A-4 Certificate Interest Rate and the Class A-4 Principal Balance and (E)
to the Class X Certificates, an amount equal to the product of 1/12 of the
Class X Certificate Interest Rate and the Class X Notional Amount (in the
case of each of clause (A), (B), (C), (D) and (E) above, before allocating
principal losses and giving effect to distributions of principal on such
Distribution Date);
(b) to each of the Class B and Class R-2 Certificates, the amounts
distributed to its respective Corresponding Class on such Distribution
Date; and
(c) to the Class R-2 Certificates, the Residual Distribution Amount
for the Class R-2 Certificates for such Distribution Date.
In each case where a distribution is required to be made concurrently
to two or more Classes of Certificates pursuant to this definition of
<PAGE> 41
"REMIC II Distribution Amount", if the portion of the REMIC II Available
Distribution Amount from which such deemed distribution is required to be
made is insufficient to make such distribution in full to such Classes of
Certificates, such distribution shall be allocated between such Classes of
Certificates pro rata according to the respective amounts to which they are
otherwise entitled from such distribution.
REMIC II Regular Interests: The Classes of interests in the REMIC II
Trust Fund designated as "regular interests" in the table titled "REMIC II
Interests" in the Preliminary Statement hereto.
REMIC II Trust Fund: The REMIC II Trust Fund created pursuant to
Section 2.05 of this Agreement. The REMIC II Trust Fund consists of the
REMIC I Regular Interests (other than the Excess Amount) to be held by the
Trustee for the benefit of the Holders from time to time of the REMIC II
Regular Interests and the Class R-2 Certificates issued hereunder.
Residual Certificates: With respect to REMIC I, the Class R-1
Certificates, which are being issued in a single class and with respect to
REMIC II, the Class R-2 Certificates, which are being issued in a single
class. The Class R-1 and Class R-2 Certificates are hereby designated the
sole Class of "residual interests" in REMIC I and REMIC II, respectively,
for purposes of Section 860G(a)(2) of the Code.
Residual Distribution Amount: For any Distribution Date, with respect
to the Class R-1 Certificates, any portion of the REMIC I Available
Distribution Amount remaining after all distributions of the REMIC I
Available Distribution Amount pursuant to clauses (I) and (II), as
applicable, of the definition of "REMIC I Distribution Amount" (other than
the distribution pursuant to the last subclause of clause (I) and (II)).
For any Distribution Date, with respect to the Class R-2 Certificates,
any portion of the REMIC II Available Distribution Amount remaining after
all distributions of the REMIC II Available Distribution Amount pursuant to
clauses (a) and (b) of the definition of "REMIC II Distribution Amount".
Upon termination of the obligations created by this Agreement and the
REMIC I Trust Fund and the REMIC II Trust Fund created hereby, 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-1 and Class R-2 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
<PAGE> 42
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, 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 for such Mortgage Loan.
Senior Percentage: For any Distribution Date, the aggregate Class
Principal Balance of the Class A and Residual Certificates divided by the
aggregate Class Principal Balance of the Class A, Class B and Residual
Certificates, in each case immediately before any distributions and
allocations of Realized Losses on such Distribution Date.
Senior Prepayment Percentage: Subject to the immediately succeeding
paragraph, (A) for any Distribution Date prior to the fifth anniversary of
the first Distribution Date, the Senior Prepayment Percentage shall equal
100% and (B) for any Distribution Date on or after the fifth 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
fifth anniversary but before the sixth 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 sixth anniversary but before the
seventh 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
seventh anniversary but before the eighth 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 eighth anniversary but before the
<PAGE> 43
ninth 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.
Notwithstanding the immediately preceding paragraph, for any
Distribution Date on or after the fifth anniversary of the first
Distribution Date, (A) the Senior Prepayment Percentage for such
Distribution Date shall equal the Senior Percentage for such Distribution
Date if the Subordinate Percentage for such Distribution Date is greater
than or equal to twice the Subordinate Percentage as of the Closing Date
and (B) the Senior Prepayment Percentage for such Distribution Date shall
equal 100% if either (1) the Senior Percentage for such Distribution Date
is greater than the Senior Percentage as of the Closing Date or (2):
(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 sum of (1) the remaining
coverage available under the Mortgage Portfolio Insurance Policy
and (2) the Class B Principal Balance as of the current
Distribution Date, or
(b) cumulative Realized Losses on the Mortgage Loans allocated to the
Class B-L Regular Interest or covered under the Mortgage
Portfolio Insurance Policy, as a percentage of the sum of (I) the
Class B Principal Balance as of the Closing Date and (II) the
coverage available under the Mortgage Portfolio Insurance Policy
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 Senior REMIC I
Regular Interests of Principal Prepayments in the percentage required would
reduce the aggregate Class Principal Balance of such Regular Interests
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 Regular Interests 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.
<PAGE> 44
Senior REMIC I Regular Interests: The Class A-L and Class R-2-L
Regular Interests.
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 Insurance Policy: The special hazard insurance policy,
a form of which is attached as Exhibit R to this Agreement, or any
replacement insurance policy obtained by the Master Servicer pursuant to
Section 3.23, in the total initial amount of $4,000,000. The initial
Special Hazard Insurance Policy shall be issued by Travelers.
Special Hazard Insurer: Initially, Travelers, or any successor thereto
or the named insurer in any replacement policy obtained by the Master
Servicer pursuant to Section 3.23.
Special Hazard Insurance Premium Sub-Account <*> : An administrative
subaccount established and maintained by the Trustee within the Expense
Account for the payment of the Premiums with respect to the Special Hazard
Insurance Policy.
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 which is not covered by a standard hazard maintenance
policy with extended coverage or by a flood insurance policy, if applicable
(or which would not have been covered by such a policy had such a policy
been maintained), which is caused by or results from any cause except: (i)
wear and tear, deterioration, rust or corrosion, mold, wet or dry rot,
inherent vice or latent defect, animals, birds, vermin, insects; (ii)
settling, subsidence, cracking, shrinkage, bulging or expansion of
pavements, foundations, walls, floors, roofs or ceilings; (iii) errors in
design, faulty workmanship or faulty materials, unless the collapse of the
property or part thereof ensues and then only for the ensuing loss; (iv)
nuclear or chemical reaction or nuclear radiation or radioactive or
<PAGE> 45
chemical contamination, all whether controlled or uncontrolled, and whether
such loss be direct or indirect, proximate or remote or be in whole or in
part caused by, contributed to or aggravated by a peril insured against in
the Special Hazard Insurance Policy; (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 any 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; or (vii) insurrection, rebellion, revolution, civil
war, usurped power or action taken by governmental authority in hindering,
combating or defending against such occurrence, seizure or destruction
under quarantine or customs regulations, confiscation by order of any
government or public authority, or risks of contraband or illegal
transportation or trade.
Special Primary Insurance Policy: Any Primary Insurance Policy
covering a Mortgage Loan the premium of which is payable by the Trustee
pursuant to Section 4.04(a), if so identified in the Mortgage Loan
Schedule.
Special Primary Insurance Premium: With respect to any Special Primary
Insurance Policy, the monthly premium payable thereunder.
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 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 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.
Subordinate Principal Prepayments Distribution Amount: For any
Distribution Date, the Subordinate Prepayment Percentage of the Principal
Prepayment Amount.
<PAGE> 46
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.
Surety: Ambac Assurance Corporation, or its successors in interest.
Surety Bonds: The Limited Purpose Surety Bonds, Policy No. AB0039BE
and Policy No. AB0240BE, issued by Ambac Assurance Corporation for the
benefit of certain beneficiaries, including, with respect to the Additional
Collateral Loans, the Trustee for the benefit of the Certificateholders.
Tax Matters Person: A Holder of a Class R-1 Certificate, with respect
to REMIC I, and a Holder of a Class R-2 Certificate, with respect to REMIC
II, in each case with a Percentage Interest of at least 0.01% or any
Permitted Transferee of such Class R-1 or Class R-2 Certificateholder
designated as succeeding to the position of Tax Matters Person with respect
to the applicable trust fund in a notice to the Trustee signed by
authorized representatives of the transferor and transferee of such Class R-
1 or Class R-2 Certificate. The Company is hereby appointed to act as the
Tax Matters Person for REMIC I so long as it holds a Class R-1 Certificate,
and to act as the Tax Matters Person for REMIC II so long as it holds a
Class R-2 Certificate, in each case with a Percentage Interest of at least
0.01%. The Company is hereby appointed to act as agent for the Tax Matters
Person for any of REMIC I or REMIC II, to perform the functions of such 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-
1 or Class R-2 Certificate, as applicable, 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 and REMIC II, to perform the
functions of such Tax Matters Person as provided herein. If the Tax Matters
Person for REMIC I or REMIC II becomes a Disqualified Organization, the
last preceding Holder, that is not a Disqualified Organization, of the
Class R-1 or Class R-2 Certificate, as applicable, held by the Disqualified
Organization shall be Tax Matters Person for such trust 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.
<PAGE> 47
Transferee Affidavit and Agreement: An affidavit and agreement in the
form attached hereto as Exhibit J.
Travelers: Travelers Indemnity Company of Illinois.
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, the Investment Account (except amounts representing the Master
Servicing Fee or the Servicing Fee), the Class A-4 Reserve Fund or the
Expense Account; (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) the Mortgage
Portfolio Insurance Policy, the Special Hazard Insurance Policy, the
Certificate Insurance Policy and amounts paid or payable by the insurer
under the Surety Bonds (with respect to the Additional Collateral Loans),
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 REMIC I
Regular Interests and the Class R-1 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,
<PAGE> 48
North American Mortgage Company, Countrywide Home Loans, Inc., PNC Mortgage
Corp. of America, Merrill Lynch Credit Corp. and Cendant Mortgage
Corporation.
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 Funds; 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 REMIC I Regular Interests and the Class R-1 Certificates.
The purpose of the Trust is to hold the Trust Fund and provide for the
creation of the REMIC I Regular Interests and for the issuance, execution
and delivery of the Class R-1 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,
<PAGE> 49
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 REMIC I Regular
Interests and the Class R-1 Certificates, 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
REMIC I Regular Interests and the Class R-1 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, the security agreements
and guaranties constituting part of the Additional Collateral, 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,
the Class A-4 Reserve Fund, the Expense 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) the Mortgage Portfolio Insurance Policy, the Special Hazard
Insurance Policy, the Certificate Insurance Policy and amounts paid or
payable by the insurer under the Surety Bonds (with respect to the
<PAGE> 50
Additional Collateral Loans), 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);
(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 (other than any MERS Loans) to the
Trustee to be recorded or filed, except in states where, in the opinion of
<PAGE> 51
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 (other than any MERS Loans) is delivered to the
Trustee by a custodian which is 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) required to be included
in the Mortgage File pursuant to the definition of "Mortgage File" 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
<PAGE> 52
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.
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.
On or promptly after the Closing Date, the Master Servicer shall cause
the MERSr System to indicate that each MERS Loan, if any, has been assigned
to "State Street Bank and 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 2000-9, without recourse" by
including in the MERSr System computer files (a) the code necessary to
identify the Trustee and (b) the code necessary to identify the series of
the Certificates issued in connection with such Mortgage Loans. The Master
Servicer shall not alter the codes referenced in this paragraph with
respect to any MERS Loan during the term of this Agreement except in
connection with an assignment of such MERS Loan or de-registration thereof
from the MERSr System in accordance with the terms of this Agreement.
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
<PAGE> 53
designated as "regular interests" for purposes of Section 860G(a)(1) of the
Code. The Class R-1 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 Holders of the REMIC I Regular Interests and the Class R-1
Certificates 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 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
<PAGE> 54
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-1 Certificateholders. Notwithstanding anything to the contrary
contained herein, the Trustee is hereby authorized to retain from amounts
otherwise distributable to the Class R-1 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
from time to time of the REMIC I Regular Interests and Class R-1
Certificates. The Trustee agrees, for the benefit of the Holders of the
REMIC I Regular Interests and Class R-1 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
<PAGE> 55
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
adjustments annually or every six months thereafter, as applicable,
thereafter based on the applicable 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, and 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 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. In furtherance of the foregoing, if such Mortgage Loan is
a MERS Loan and as a result of the repurchase thereof such Mortgage Loan
<PAGE> 56
shall cease to be serviced by a servicer that is a member of MERS or if the
Company or its assignee shall so request, the Master Servicer shall cause
MERS to execute and deliver an assignment of the Mortgage in recordable
form from MERS to the Company or its assignee and shall cause the Mortgage
Loan to be removed from registration on the MERSr System in accordance with
MERS' rules and procedures. 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 Holders of the REMIC I Regular Interests or the Class R-1
Certificateholders or the Trustee on behalf of the Holders of the REMIC I
Regular Interests or the Class R-1 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;
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;
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);
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;
As of the Closing Date, there is no late assessment for
delinquent taxes outstanding against any Mortgaged Property;
<PAGE> 57
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;
As of the Closing Date, each Mortgaged Property is free of damage
and in good repair, ordinary wear and tear excepted;
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;
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;
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 Holders of the REMIC
I Regular Interests and the Class R-1 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 policy;
All of the Mortgage Loans (other than the Additional Collateral
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;
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;
As of the Closing Date, each insurer issuing a Primary Insurance
<PAGE> 58
Policy holds a rating acceptable to the Rating Agencies;
Each Mortgage (exclusive of any riders thereto) was documented by
appropriate Fannie Mae/Freddie Mac mortgage instruments in effect at
the time of origination, or other instruments approved by the Company;
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;
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;
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;
None of the Mortgage Loans is a Buydown Loan;
Based solely on representations of the Mortgagors obtained at the
origination of the related Mortgage Loans, approximately 92.26% (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 6.00% (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 1.74% (by Principal Balance) of the Mortgage Loans will
be secured by Mortgaged Properties which were investor properties of
the related Mortgagors;
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;
The Mortgage Loans have been underwritten substantially in
accordance with the applicable Underwriting Standards;
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;
The Company used no adverse selection procedures in selecting the
Mortgage Loans from among the outstanding fixed-rate conventional
<PAGE> 59
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;
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);
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;
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;
Based upon an appraisal of the Mortgaged Property securing each
Mortgage Loan, approximately 69.32% (by Principal Balance) of the
Mortgage Loans had a current Loan-to-Value Ratio less than or equal to
80%, approximately 15.84% (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 14.83%(by Principal Balance) of the Mortgage Loans
had a current Loan-to-Value Ratio greater than 95%;
Approximately 9.34% (by Principal Balance) of the Mortgage Loans
were originated for the purpose of refinancing existing mortgage debt,
including cash-out refinancings; and approximately 90.66% (by
Principal Balance) of the Mortgage Loans were originated for the
purpose of purchasing the Mortgaged Property;
Not less than approximately 90.75% (by Principal Balance) of the
Mortgage Loans were originated under full documentation programs;
Each Additional Collateral Loan is covered by a Surety Bond;
Each Additional Collateral Loan is secured solely by the related
<PAGE> 60
Mortgaged Property and by a securities account owned by the related
Mortgagor or a guarantor; and
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 and
the Certificate Insurer 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 Holders of the REMIC I Regular
Interests and the Class R-1 Certificateholders or the Trustee on behalf of
the Holders of the REMIC I Regular Interests and the Class R-1
Certificateholders.
Section 2.04. Acknowledgment of Transfer of Trust Fund; Authentication of
Class R-1 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, does hereby convey to the
Company the REMIC I Regular Interests, and shall cause to be authenticated
and delivered, upon and pursuant to the order of the Company, the Class R-1
Certificates in Authorized Denominations evidencing the residual beneficial
ownership interest in the REMIC I Trust Fund.
Section 2.05. Conveyance of REMIC II; REMIC Election and Designations. A
trust ("REMIC II") of which the Trustee is the trustee is hereby created
<PAGE> 61
under the laws of the State of New York for the benefit of the Holders of
the Certificates (other than the Class R-1 Certificates). The purpose of
REMIC II is to hold the REMIC II Trust Fund and provide for the issuance,
execution and delivery of the Certificates (other than the Class R-1
Certificates). The assets of REMIC II shall consist of the REMIC II Trust
Fund. REMIC II shall be irrevocable.
The assets of REMIC II shall remain in the custody of the Trustee, on
behalf of REMIC II, and shall be kept in REMIC II. Moneys to the credit of
REMIC II shall be held by the Trustee and invested as provided herein. All
assets received and held in REMIC II 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 REMIC II, shall not have the power
or authority to transfer, assign, hypothecate, pledge or otherwise dispose
of any of the assets of REMIC II to any Person, except as permitted herein.
No creditor of a beneficiary of REMIC II, 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 REMIC II, 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 Certificateholders (other
than the Class R-1 Certificateholders), without recourse, all the Company's
right, title and interest in and to the REMIC II Trust Fund, including all
interest and principal received by the Company on or with respect to the
REMIC I Regular Interests (other than the Excess Amount) after the Cut-Off
Date. The Trustee hereby accepts REMIC II created hereby and accepts
delivery of the REMIC II Trust Fund on behalf of REMIC II and acknowledges
that it holds the REMIC I Regular Interests (other than the Excess Amount)
for the benefit of the Holders of the Certificates (other than the Class R-
1 Certificates) issued pursuant to this Agreement. It is the express intent
of the parties hereto that the conveyance of the REMIC II Trust Fund to the
Trustee by the Company as provided in this Section 2.05 be, and be
construed as, an absolute sale of the REMIC II Trust Fund. It is, further,
not the intention of the parties that such conveyance be deemed the grant
of a security interest in the REMIC II Trust Fund 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 REMIC II
Trust Fund is 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 REMIC II Trust Fund, then
(a) this Agreement shall be deemed to be a security agreement;
(b) the conveyance provided for in this Section 2.05 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:
<PAGE> 62
(I) The uncertificated REMIC I Regular Interests (other than the
Excess Amount), including without limitation all rights represented
thereby in and to (i) the Mortgage Loans identified on the Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
Cooperative Stock Certificates, and Cooperative Leases, the security
agreements and guaranties constituting part of the Additional
Collateral, all Substitute Mortgage Loans and all distributions with
respect to such Mortgage Loans and Substitute Mortgage Loans payable
on and after the Cut-Off Date, (ii) the Certificate Account, the
Investment Account, the Class A-4 Reserve Fund, the Expense 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 therein attributable to the Mortgage
Loans); (iii) the Mortgage Portfolio Insurance Policy, the Special
Hazard Insurance Policy, the Certificate Insurance Policy and amounts
paid or payable by the insurer under the Surety Bonds (with respect to
the Additional Collateral Loans), 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;
and (iv) 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)-(iii) above (including any
accrued discount realized on liquidation of any investment purchased
at a discount);
(II) 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
(III) 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 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 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 REMIC II Trust
Fund, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as
<PAGE> 63
such throughout the term of this 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.
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 2.05, and to enter into a
Custodial Agreement for such purpose; provided, however, that the Trustee
shall be and remain liable for actions of any such Custodian only to the
extent it would otherwise be responsible for such acts hereunder.
The Tax Matters Person shall, on behalf of the REMIC II Trust Fund,
elect to treat the REMIC II 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 II for its first taxable year.
The Closing Date is hereby designated as the "startup day" of REMIC II
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 II Trust Fund are
hereby designated as "regular interests" for purposes of Section 860G(a)(1)
of the Code. The Class R-2 Certificates are being issued in a single Class,
which is hereby designated as the sole class of "residual interest" in the
REMIC II Trust Fund for purposes of Section 860G(a)(2) of the Code.
The parties intend that the affairs of the REMIC II Trust Fund formed
hereunder shall constitute, and that the affairs of the REMIC II Trust Fund
shall be conducted so as to qualify it as, a REMIC. In furtherance of such
intention, the Tax Matters Person shall, on behalf of the REMIC II 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 for the REMIC II 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 REMIC II
Trust Fund, to be treated as a REMIC on the federal tax return of the REMIC
II 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 (other than the Class R-1 Certificateholders) all
information reports as and when required to be provided to them in
accordance with the REMIC provisions; (d) conduct the affairs of the REMIC
II Trust Fund at all times that any of the Certificates are outstanding so
as to maintain the status of the REMIC II 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 II Trust Fund; and (f) pay the amount of any federal
prohibited transaction penalty taxes imposed on the REMIC II Trust 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
<PAGE> 64
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 from the REMIC II 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.
In the event that any tax is imposed on "prohibited transactions" of
the REMIC II Trust Fund as defined in Section 860F of the Code and not paid
by the Company pursuant to clause (f) of the preceding paragraph, such tax
shall be charged against amounts otherwise distributable to the Holders of
the Class R-2 Certificates. Notwithstanding anything to the contrary
contained herein, the Company is hereby authorized to retain from amounts
otherwise distributable to the Holders of the Class R-2 Certificates on any
Distribution Date sufficient funds to reimburse the Company for the payment
of such tax (to the extent that the Company has not been previously
reimbursed therefor).
Section 2.06. Acceptance by Trustee; Authentication of Certificates. The
Trustee acknowledges and accepts the assignment to it of the property
constituting the REMIC II Trust Fund and declares that as of the Closing
Date it holds and shall hold any documents constituting a part of the REMIC
II Trust Fund, and the REMIC II Trust Fund, as Trustee in trust, upon the
trusts herein set forth, for the use and benefit of all present and future
Certificateholders (other than the Class R-2 Certificateholders). In
connection therewith, as of the Closing Date, the Trustee shall cause to be
authenticated and delivered, upon and pursuant to the order of the Company,
in exchange for the property constituting the REMIC II Trust Fund, the
Certificates (other than the Class R-2 Certificates) in Authorized
Denominations evidencing the entire ownership of the REMIC II 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
<PAGE> 65
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, the Mortgage Portfolio Insurance Policy, the Special
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)
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
<PAGE> 66
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 either REMIC to fail to qualify as such under the
Code.
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 Holders of the REMIC I Regular Interests and the Class R-1
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 Master Servicer is
hereby further authorized and empowered by the Trustee to execute and
deliver or cause to be executed and delivered on behalf of the Holders of
the REMIC I Regular Interests, the Class R-1 Certificateholders and the
Trustee, or any of them, such instruments of assignment or other comparable
instruments as the Master Servicer shall, in its sole judgment, deem
appropriate in order to register any Mortgage Loan on the MERSr System or
to cause the removal of any Mortgage Loan from registration thereon. Any
expenses incurred in connection with the actions described in the preceding
sentence shall be borne by the Master Servicer with no right of
reimbursement; provided, however, that any such expenses incurred as a
<PAGE> 67
result of any termination by MERS of the MERSr System shall be reimbursable
to the Master Servicer. 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 either of the
REMICs to fail to qualify as such 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 the applicable trust fund 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 either REMIC 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.
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,
<PAGE> 68
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:
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
Servicers and less any amounts to be withdrawn later by the applicable
Servicers from the applicable Buydown Fund Accounts;
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
<PAGE> 69
applicable Servicers from the applicable Buydown Fund Accounts; and
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 Holders of the REMIC I Regular Interests, the Class R-1
Certificateholders and the Certificate Insurer 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 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. The Trustee shall deposit into the Certificate
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Account amounts received under the Certificate Insurance Policy in
accordance with Section 3.21(b) hereof.
(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:
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;
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;
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;
To reimburse itself or the applicable Servicer for advances made
with respect to related Mortgage Loans (except for Mortgage Loans
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;
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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;
To deposit to the Investment Account amounts in the Certificate
Account not required to be on deposit therein at the time of such
withdrawal;
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);
To pay on behalf of the Trustee any Special Primary Insurance
Premium payable by the Trustee pursuant to Section 4.04(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;
To deposit in the Expense Account, on each Distribution Date, the
interest to which the Excess Amount is entitled for such Distribution
Date pursuant to Section 3.19; and
after making or providing for the above withdrawals
To clear and terminate the Investment Account and the Certificate
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;
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);
In the event of foreclosure or liquidation of any Mortgage Loan
having a Buydown Fund, to deposit remaining Buydown Fund amounts in
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the Investment Account as Liquidation Proceeds; and
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
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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 and the Mortgage Portfolio 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
the REMICs 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
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assumption agreement has been completed by 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
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liquidation of the Mortgage Loan to Certificateholders after reimbursement
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 or in connection with the preservation of the coverage of the
Mortgage Portfolio Insurance Policy and the Special Hazard Insurance
Policy; 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.
In addition to the foregoing, the Master Servicer shall use its
reasonable efforts to realize upon, or to cause the Servicers to realize
upon, any Additional Collateral for such of the Additional Collateral Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.01; provided, however, that (i) the Master Servicer shall not
proceed with respect to such Additional Collateral in any manner that would
impair the ability to recover against the related Mortgaged Property and
(ii) the Master Servicer shall proceed with any acquisition of the related
Mortgaged Property through foreclosure, deed in lieu of foreclosure or
otherwise in a manner that preserves the ability to apply the proceeds of
such Additional Collateral against amounts owed under the defaulted
Additional Collateral Loan.
After the later of (i) the exhaustion of coverage under the Mortgage
Portfolio Insurance Policy and (ii) the Distribution Date in September
2005, 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
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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 and the Certificate Insurer 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 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
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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, REMIC II 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
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
(i) 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, and (ii) with respect to any MERS Loan, to cause the removal of
such Mortgage Loan from registration on the MERSr System. 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.
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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
later than 15 days after each Distribution Date, the Master Servicer shall
forward a statement, certified by a Servicing Officer, to the Trustee and
the Certificate Insurer 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 and the Certificate Insurer, 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
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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
its expense, shall cause a firm of independent public accountants to
furnish a statement to the Trustee and the Certificate Insurer 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. Maintenance of the Class A-4 Reserve Fund. On or prior to
the Closing Date, the Master Servicer shall cause to be established and
maintained the Class A-4 Reserve Fund, into which an amount equal to
$24,000 shall be contributed by CSFB, to provide coverage with respect to
any Class A-4 Covered Interest Shortfall Amount. For each Distribution
Date on or before the Distribution Date in September 2005, so long as funds
remain on deposit in the Class A-4 Reserve Fund, the Master Servicer shall
calculate the Class A-4 Covered Interest Shortfall Amount for such
Distribution Date, and shall notify the Trustee and the Certificate Insurer
by noon New York City time two Business Days prior to the Distribution Date
of such amount. On each such Distribution Date, the Trustee shall then
withdraw from the Class A-4 Reserve Fund, to the extent funds are available
therein, the Class A-4 Covered Interest Shortfall Amount, and deposit such
amount in the Certificate Account for payment to the Class A-4
Certificateholders pursuant to Section 4.04(a) (and shall be deemed to have
distributed such amount to the Class A-4-L Regular Interest pursuant to
Section 4.01).
The Trustee shall withdraw from the Class A-4 Reserve Fund and pay to
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CSFB any amounts remaining in the Class A-4 Reserve Fund on the earlier of
(i) the Distribution Date in September 2005 (after distributions on such
date) and (ii) the Distribution Date on which the Class A-4 Principal
Balance has been reduced to zero.
Amounts on deposit in the Class A-4 Reserve Fund shall not be invested
and shall not be held in an interest-bearing account.
To the extent that it constitutes a "reserve fund" for purposes of the
REMIC Provisions, the Class A-4 Reserve Fund established hereunder shall be
an "outside reserve fund" as defined in Treasury Regulation 1.860G-2(h),
and in that regard (i) such fund shall be an outside reserve fund and not
an asset of either REMIC, (ii) such fund shall be owned for federal tax
purposes by CSFB, and CSFB shall report all amounts of income, deduction,
gain or loss accruing therefrom, and (iii) amounts transferred by the REMIC
to the fund shall be treated as distributed by the REMIC to CSFB.
Section 3.17. Mandatory Certificate Purchase Agreement.
Concurrently with the execution and delivery hereof, at the direction
of the Company, the Trustee, acting solely as an intermediary agent (the
"Agent") for CDC and the holders of the Class A Certificates as of the
Certificate Purchase Date (as defined in the Mandatory Certificate Purchase
Agreement) and not as Trustee or on behalf of the Trust, shall execute and
deliver a Mandatory Certificate Purchase Agreement substantially in the
form of Exhibit P hereto. The Agent shall have no duty to review or
otherwise determine the adequacy of the Mandatory Certificate Purchase
Agreement.
Each Holder of a Class A Certificate is deemed, by acceptance of such
Certificate, to acknowledge and accept and agree to be bound by the
provisions of the Mandatory Certificate Purchase Agreement.
Section 3.18. Surety Bonds. In connection with its activities hereunder,
the Master Servicer agrees to present, on behalf of the Trustee and the
Certificateholders, claims to the Surety under the Surety Bonds, and, in
this regard, to take such commercially reasonable actions as shall be
necessary to permit recovery under the Surety Bonds; provided, however,
that nothing in this Section 3.18 shall require the Master Servicer to make
a Nonrecoverable Advance. Promptly after the Closing Date, the Master
Servicer shall make application to the Surety to provide the Trustee with
written confirmation from the Surety that a beneficial interest in each
Surety Bond with respect to the Additional Collateral Loans has been
assigned to the Trustee.
Expense Account.
On or prior to the Closing Date, the Trustee shall cause to be
established and maintained the Expense Account, in which the Master
Servicer shall deposit, on each Distribution Date, the interest to which
the Excess Amount is entitled for such Distribution Date (as withdrawn by
the Master Servicer from the Investment Account, the Certificate Account or
<PAGE> 81
the Custodial Accounts for P&I in accordance with Section 3.05). The
Master Servicer shall deposit the portion of such interest representing the
Premium Payment Amount for the Mortgage Portfolio Insurance Policy in the
Mortgage Portfolio Insurance Premium Sub-Account and the portion of such
interest representing the Premium Payment Amount for the Special Hazard
Insurance Policy in the Special Hazard Insurance Premium Sub-Account. The
Master Servicer shall, from time to time, make withdrawals from the
Mortgage Portfolio Insurance Premium Sub-Account to pay the Premium due and
owing with respect to the Mortgage Portfolio Insurance Policy in accordance
with Section 3.22. The Master Servicer shall, from time to time, make
withdrawals from the Special Hazard Insurance Premium Sub-Account to pay
the Premium due and owing with respect to the Special Hazard Insurance
Policy in accordance with Section 3.23. If the Master Servicer fails to
pay any such Premium that is due and owing from amounts on deposit in such
accounts, and funds are at the time on deposit in the applicable account,
the Trustee shall be entitled to withdraw, by written notification to the
institution maintaining the Expense Account (if other than the Trustee),
amounts from the applicable account to the extent necessary to pay such
Premium and apply such amounts to the payment thereof. In no event shall
the Master Servicer be obligated for the payment of the Premiums with
respect to the Mortgage Portfolio Insurance Policy and the Special Hazard
Insurance Policy other than from amounts on deposit in the Mortgage
Portfolio Insurance Premium Sub-Account and the Special Hazard Insurance
Premium Sub-Account, respectively.
To the extent that it constitutes a "reserve fund" for purposes of the
REMIC Provisions, the Expense Account established hereunder shall be an
"outside reserve fund" as defined in Treasury Regulation 1.860G-2(h), and
in that regard (i) such fund shall be an outside reserve fund and not an
asset of either REMIC, (ii) such fund shall be owned for federal tax
purposes by the owner specified in the Certificate Register and such owner
shall report all amounts of income, deduction, gain or loss accruing
therefrom, and (iii) amounts transferred by the REMIC to the Expense
Account shall be treated as distributed by the REMIC to such owner.
To the extent that on any Distribution Date, amounts on deposit in the
Mortgage Portfolio Insurance Premium Sub-Account are in excess of the
amounts necessary to pay any and all Premiums due prior to the next
Distribution Date with respect to the Mortgage Portfolio Insurance Policy,
the Master Servicer shall direct the Trustee to withdraw such amounts from
the Mortgage Portfolio Insurance Premium Sub-Account and remit such amounts
to the owner of the Excess Amount. To the extent that on any Distribution
Date amounts on deposit in the Special Hazard Insurance Premium Sub-Account
are in excess of the greater of (i) $5,000 and (ii) the amounts necessary
to pay any and all Premiums due prior to the third succeeding Distribution
Date with respect to the Special Hazard Insurance Policy, the Master
Servicer shall direct the Trustee to withdraw such amounts from the Special
Hazard Insurance Premium Sub-Account and remit such amounts to the owner of
the Excess Amount. If the Master Servicer fails to direct the Trustee to
withdraw such excess amounts, the Trustee shall be entitled to withdraw, by
written notification to the institution maintaining the applicable account
(if other than the Trustee), amounts from such account and remit such
<PAGE> 82
amounts to the owner of the Excess Amount.
The owner of the Excess Amount as of the Closing Date shall be
reflected in the Certificate Register. The Excess Amount shall not be
transferable. The Excess Amount shall be entitled to the benefits of this
Agreement and shall be valid for all purposes, upon receipt by the Trustee
of a written instruction of the Company to register such interest in the
name specified in such instruction and the entry of such information in the
Certificate Register by the Certificate Registrar.
(e) Funds held in the Expense Account may be invested at the
direction of the owner of the Excess Amount in one or more Eligible
Investments which shall in no event mature later than the date on which any
funds so invested are needed to make payments from the Expense Account.
Section 3.19. 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
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.
Section 3.20. Maintenance of the Certificate Insurance Policy; Collections
Thereunder.
(a) Prior to noon New York City time on the third Business Day prior
to each Distribution Date on or before the Distribution Date in September
2005, the Master Servicer shall, with respect to the Insured Certificates,
determine if a Deficiency Amount for such Distribution Date exists and, if
so, shall immediately notify the Trustee in writing of such amount; the
Trustee, upon receipt of such notice, shall complete the Notice and submit
<PAGE> 83
such Notice in accordance with the Certificate Insurance Policy to the
Certificate Insurer no later than noon, New York City time, on the second
Business Day immediately preceding such Distribution Date, as a claim for
an Insured Payment in an amount equal to such Deficiency Amount. If at any
time (whether before or after the Distribution Date in September 2005) the
Trustee receives a certified copy of an order of an appropriate court that
any payment of principal and interest on the Insured Certificates made on
or before the Distribution Date in September 2005 constitutes a Preference
Amount, the Trustee, at the expense of the Trust, shall take the actions
required on its part by the terms of the Certificate Insurance Policy to
obtain payment of such Preference Amount by the Certificate Insurer.
(b) Upon receipt of an Insured Payment from the Certificate Insurer
on behalf of the Holders of the Insured Certificates, the Trustee shall
deposit such Insured Payment in the Certificate Account. All such amounts
on deposit in the Certificate Account shall remain uninvested. The Trustee
shall include on each Distribution Date on or before the Distribution Date
in September 2005 any amounts received by it from or on behalf of the
Certificate Insurer with respect to a Deficiency Amount for such
Distribution Date (i) in the amount distributed to the Holders of the
Insured Certificates pursuant to Section 4.04 and (ii) in the amount deemed
to have been distributed to the Class A-4-L Regular Interest and deposited
for its benefit into the Certificate Account pursuant to Section 4.01. If
on any Distribution Date the Trustee or the Master Servicer determines (the
Master Servicer having notified the Trustee of such determination) that the
Certificate Insurer has paid more under the Certificate Insurance Policy
than is required by the terms thereof, the Trustee shall promptly return
the excess amount to the Certificate Insurer.
(c) The Trustee shall (i) receive as attorney-in-fact of the Holders
of the Insured Certificates any Insured Payment delivered to it by the
Certificate Insurer for payment to such Class and (ii) distribute such
Insured Payment to such Holders as set forth in subsection 3.21(b) above.
Insured Payments disbursed by the Trustee from proceeds of the Certificate
Insurance Policy shall not be considered payment by the Trust Fund with
respect to the Insured Certificates, nor shall such disbursement of Insured
Payments discharge the obligations of the Trust Fund with respect to the
amounts thereof, and the Certificate Insurer shall become owner of such
amounts to the extent covered by such Insured Payments as the deemed
assignee of such Holders. The Trustee hereby agrees on behalf of the
Holders of the Insured Certificates (and each such Holder, by its
acceptance of its Insured Certificates, hereby agrees) for the benefit of
the Certificate Insurer that, to the extent the Certificate Insurer makes
Insured Payments, either directly or indirectly (as by paying through the
Trustee), to the Holder of an Insured Certificate, the Certificate Insurer
will be subrogated to any rights of the Holder of such Insured Certificate
to receive (pursuant to the definition of "REMIC II Distribution Amount")
the amounts for which such Insured Payments were made, to the extent of
such payments, and the Trustee shall pay such amounts to the Certificate
Insurer to the extent included in the REMIC II Distribution Amount (as
notified to the Trustee by the Master Servicer in the written statement
required pursuant to Section 4.02(b)).
<PAGE> 84
(d) On each Distribution Date on or before the Distribution Date in
September 2005 and prior to making any distributions on such Distribution
Date pursuant to Section 4.01, the Trustee shall withdraw from the
Certificate Account and pay to the Certificate Insurer the Certificate
Insurer Premium as set forth in the statement delivered to the Trustee
pursuant to Section 4.02(b).
(e) Notwithstanding anything to the contrary herein, the Certificate
Insurer shall be entitled to exercise all rights allocated to the
Certificate Insurer hereunder (including, without limitation, rights to
receive any notice given hereunder, to receive any documents delivered
hereunder and to consent or vote with respect to any action taken
hereunder) (i) at any time on or before the Distribution Date in September
2005 and (ii) at any time when any Class A-4 Reimbursement Amount is
payable to the Certificate Insurer hereunder (but shall not be entitled to
exercise any such rights at any other time); provided, however, that the
Certificate Insurer shall be entitled to exercise all subrogation rights
pursuant to this Section 3.21 and all rights to receive any Class A-4
Reimbursement Amount at any time until the Trust Fund is terminated
pursuant to Section 9.01.
(f) On the day after the Distribution Date in September 2005, the
Trustee shall return the Certificate Insurance Policy to the Certificate
Insurer for cancellation.
Mortgage Portfolio Insurance Policy. The Master Servicer agrees to
exercise commercially reasonable efforts to maintain and keep the Mortgage
Portfolio Insurance Policy in full force and effect throughout the term of
this Agreement, unless coverage thereunder has been exhausted through the
payment of claims; provided, however, that in no case shall the Master
Servicer be required to (i) expend its own funds to maintain such policy or
(ii) make a Nonrecoverable Advance. In the event that (i) the claims paying
ability rating of the Mortgage Portfolio Insurer is reduced below the level
of the rating originally given and, consequently, the Ratings are reduced
below the level of the Ratings originally given, (ii) the Mortgage
Portfolio Insurer ceases to be a qualified mortgage insurer duly qualified
as such under applicable laws or (iii) the Mortgage Portfolio Insurance
Policy is cancelled for any reason other than the exhaustion of coverage
thereunder, the Master Servicer acting on behalf of the Trustee shall
exercise commercially reasonable efforts to obtain from another insurer
acceptable to the Rating Agencies a replacement policy comparable to the
initial Mortgage Portfolio Insurance Policy; provided, however, that if the
cost of any such replacement policy shall be greater than the cost of the
initial Mortgage Portfolio Insurance Policy, the amount of coverage of such
replacement policy shall be reduced to a level such that the premium rate
therefor shall not exceed 100% of the premium rate on the initial Mortgage
Portfolio Insurance Policy.
In connection with its activities hereunder, the Master Servicer
agrees to present, on behalf of the Trustee and Certificateholders, claims
to the Mortgage Portfolio Insurer under the Mortgage Portfolio Insurance
Policy, and, in this regard, to take such commercially reasonable action
<PAGE> 85
(other than the making of Nonrecoverable Advances) as shall be necessary to
permit recovery under the Mortgage Portfolio Insurance Policy. The Master
Servicer shall collect all amounts relating to the Certificates under the
Mortgage Portfolio Insurance Policy and shall deposit such amounts in the
related Custodial Account for P&I or in the Certificate Account until
distributed in accordance with Section 4.01 or Section 4.04 or withdrawn in
accordance with Section 3.03 or Section 3.05 of this Agreement.
Special Hazard Insurance Policy. The Master Servicer agrees to
exercise commercially reasonable efforts to maintain and keep the Special
Hazard Insurance Policy in full force and effect throughout the term of
this Agreement, unless coverage thereunder has been exhausted through the
payment of claims; provided, however, that in no case shall the Master
Servicer be required to (i) expend its own funds to maintain such policy or
(ii) make a Nonrecoverable Advance. In the event that (i) the claims paying
ability rating of the Special Hazard Insurer is reduced to such a level
that the Ratings are reduced below the level of the Ratings originally
given, (ii) the Special Hazard Insurer ceases to be a property and casualty
insurer duly qualified as such under applicable laws or (iii) the Special
Hazard Insurance Policy is cancelled for any reason other than the
exhaustion of coverage thereunder, the Master Servicer acting on behalf of
the Trustee shall exercise commercially reasonable efforts to obtain from
another insurer acceptable to the Rating Agencies a replacement policy
comparable to the initial Special Hazard Insurance Policy; provided,
however, that if the cost of any such replacement policy shall be greater
than the cost of the initial Special Hazard Insurance Policy, the amount of
coverage of such replacement policy shall be reduced to a level such that
the premium rate therefor shall not exceed 100% of the premium rate on the
initial Special Hazard Insurance Policy.
In connection with its activities hereunder, the Master Servicer
agrees to present, on behalf of the Trustee and Certificateholders, claims
to the Special Hazard Insurer under the Special Hazard Insurance Policy,
and, in this regard, to take such commercially reasonable action (other
than the making of Nonrecoverable Advances) as shall be necessary to permit
recovery under the Special Hazard Insurance Policy. The Master Servicer
shall collect all amounts relating to the Certificates under the Special
Hazard Insurance Policy and shall deposit such amounts in the related
Custodial Account for P&I or in the Certificate Account until distributed
in accordance with Section 4.01 or Section 4.04 or withdrawn in accordance
with Section 3.03 or 3.05 of this Agreement.
ARTICLE IV
Payments to Certificateholders; Payment of Expenses
Section 4.01. Distributions to Holders of REMIC I Regular Interests and
Class R-1 Certificateholders; Payments to Certificate Insurer. On each
Distribution Date, the Trustee (or any duly appointed paying agent) (i)
shall withdraw from the Certificate Account any Certificate Insurer Premium
payable on such Distribution Date pursuant to Section 3.21(d) and pay such
amount to the Certificate Insurer, (ii) shall be deemed to have distributed
<PAGE> 86
from the Certificate Account (a) the REMIC I Distribution Amount (other
than any Class A-4 Reimbursement Amount) to the Holders of the REMIC I
Regular Interests and (b) the Class A-4 Covered Interest Shortfall Amount,
if any, and the Deficiency Amount, if any, to the Class A-4-L Regular
Interest, and to have deposited such amounts for their benefit into the
Certificate Account, (iii) from the Certificate Account shall distribute to
the Certificate Insurer any Class A-4 Reimbursement Amount to be
distributed to the Certificate Insurer pursuant to the definition of "REMIC
I Distribution Amount" for such Distribution Date and (iv) from the
Certificate Account shall distribute to the Class R-1 Certificateholders
the sum of (a) the Excess Liquidation Proceeds and (b) the amounts to be
distributed to the Class R-1 Certificateholders pursuant to the definition
of "REMIC I Distribution Amount" for such Distribution Date, all in
accordance with written statements received from the Master Servicer
pursuant to Section 4.02(b), by (except with respect to the Certificate
Insurer) wire transfer in immediately available funds for the account of
each such Holder and the Class R-1 Certificateholder, or by any other means
of payment acceptable to each such Holder and the Class R-1
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 payments to the
Certificate Insurer, by wire transfer in immediately available funds to
such account set forth in the Commitment (as defined in the Insurance
Agreement) or such other account as the Certificate Insurer shall designate
in writing to the Trustee from time to time at least one Business Day
before any Distribution Date or, at the election of the Certificate
Insurer, by check sent by first class mail to such address as the
Certificate Insurer shall designate in writing to the Trustee from time to
time at least one Business Day before any Distribution Date.
Notwithstanding any other provision of this Agreement, no actual
distributions pursuant to clause (ii) of this Section 4.01 shall be made on
account of the deemed distributions described in this paragraph except in
the event of a liquidation of REMIC II and not REMIC I.
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.
Prior to the close of business on the Business Day immediately
following each Withdrawal Date, the Master Servicer shall determine whether
<PAGE> 87
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 (w) the Trustee, (x)
the Certificate Insurer, (y) with respect to the Distribution Date that is
the Certificate Purchase Date (as defined in the Mandatory Certificate
Purchase Agreement), the Agent and (z) the Company (if the Company is no
<PAGE> 88
longer acting as Master Servicer) with a statement in writing of (1) the
amount, if any, of the Certificate Insurer Premium for the Class A-4
Certificates, (2) the amounts to be distributed to the Certificate Insurer
pursuant to the definition of "REMIC I Distribution Amount," (3) the
Deficiency Amount, if any, to be paid by the Certificate Insurer, (4) the
Class A-4 Covered Interest Shortfall Amount, if any, to be withdrawn from
the Class A-4 Reserve Fund pursuant to Section 3.16, (5) the amount, if
any, to be drawn upon each of the Mortgage Portfolio Insurance Policy and
the Special Hazard Insurance Policy, (6) 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 REMIC I Regular Interests and each Class of
Certificates on such Distribution Date (such amounts to be determined in
accordance with the definitions of "REMIC I Distribution Amount," and
"REMIC II Distribution Amount," Section 4.01 and Section 4.04 hereof and
other related definitions set forth in Article I hereof); (7) the
applicable Class Principal Balance after giving effect to such
distributions; (8) the amount of any Special Primary Insurance Premium
payable on such Distribution Date; and (9) with respect to the Distribution
Date that is the Certificate Purchase Date (as defined in the Mandatory
Certificate Purchase Agreement), (i) the Certificate Purchase Price (as
defined in the Mandatory Certificate Purchase Agreement) for each Class A
Certificate and (ii) the aggregate Certificate Purchase Price for all Class
A Certificates.
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. Distributions to Certificateholders; Payment of Special
Primary Insurance Premiums.
<PAGE> 89
(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 REMIC II Available Distribution Amount for such
Distribution Date and distribute, from the amount so withdrawn, to the
extent of the REMIC II Available Distribution Amount, the REMIC II
Distribution Amount to the Certificates (other than the Class R-1
Certificates) and to the Certificate Insurer in respect of the Certificate
Insurer's subrogation to certain rights to payment due to the Holders of
the Insured Certificates as set forth in Section 3.21, (B) the Class A-4
Covered Interest Shortfall Amount, if any, deposited therein for
distribution on such date pursuant to Section 3.16 and distribute such
amount to the Class A-4 Certificates and (C) the Deficiency Amount, if any,
and distribute such amount to the Holders of the Insured Certificates, all
in accordance with the written statement received from the Master Servicer
pursuant to Section 4.02(b), by (except with respect to the Certificate
Insurer and with respect to any Special Primary Insurance Premium) 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 respective Special Primary Insurance
Policy, and with respect to payments to the Certificate Insurer, by wire
transfer in immediately available funds to such account set forth in the
Commitment (as defined in the Insurance Agreement) or such other account as
the Certificate Insurer shall designate in writing to the Trustee from time
to time at least one Business Day before any Distribution Date or, at the
election of the Certificate Insurer, by check sent by first class mail to
such address as the Certificate Insurer shall designate in writing to the
Trustee from time to time at least one Business Day before any Distribution
Date.
(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-1 and Class R-2 Certificates upon the termination of REMIC
I and REMIC II) 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 4.04(c)(ii) and Section 9.01(b).
(c) Whenever, on the basis of Curtailments, Payoffs, proceeds of the
Certificate Insurance Policy and Monthly Payments on the Mortgage Loans and
Insurance Proceeds and Liquidation Proceeds received and expected to be
<PAGE> 90
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 (with a copy to the
Certificate Insurer) a notice to the effect that:
it is expected that funds sufficient to make such final
distribution will be available in the Certificate Account on such
Distribution Date, and
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 4.05. 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 "Bondholder 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
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 coverage available to the Certificates under
the Mortgage Portfolio Insurance Policy as of the close of business on
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the applicable Determination Date;
(d) The amount of coverage available to the Certificates under
the Special Hazard Insurance Policy as of the close of business on the
applicable Determination Date;
(e) The amount of the Bankruptcy Coverage available to the
Senior Certificates remaining as of the close of business on the
applicable Determination Date;
(f) The amount of the Fraud Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date;
(g) The amount of the Class A-4 Reimbursement Amount as of the
applicable Determination Date and the amount of any Preference Amount
and any amount payable to the Certificate Insurer pursuant to its
subrogation rights;
(h) The cumulative amount of Realized Losses allocated to the
Certificates since the Cut-Off Date; and
(i) The amount remaining on deposit in the Class A-4 Reserve
Fund.
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 and B 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 authorized officers of the Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were at the time of
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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
Ownership Interest in a Residual Certificate to a U.S. Person,
<PAGE> 93
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
obligations as Holder thereof retroactive to the date of
<PAGE> 94
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
Section 1381 of the Code having as among its record holders at any
<PAGE> 95
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(determined in the
case of the Insured Certificates, without giving effect to the
Certificate Insurance Policy); 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 and REMIC II to
cease to qualify as a REMIC and will not create a risk that (1)
REMIC I and REMIC II 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-
1] [R-2] 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,
<PAGE> 96
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF THE CLASS [R-1] [R-2] CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF
THIS PARAGRAPH.
The Tax Matters Person for each of REMIC I and REMIC II, while
not a Disqualified Organization, shall be the tax matters person for
the related REMIC 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 Residual 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 a Residual 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) a Transferee Affidavit and Agreement which
includes the representation set forth in paragraph 18 of the form attached
hereto as Exhibit J.
(e) (i) In the case of any Class A Certificate presented for
registration in the name of any Person prior to the Distribution Date in
September 2005, 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 Certificate are
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 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.
(ii) Notwithstanding the foregoing, an Opinion of Counsel or
certification as described in Section 5.01(e)(i) above will not be
required with respect to the transfer of any Class A Certificate to a
Clearing Agency, or for any subsequent transfer of any interest in a
Class A Certificate for so long as such Certificate is a Book-Entry
Certificate (each such Class A Certificate, a "Book-Entry Senior
Certificate"). Any transferee of a Book-Entry Senior Certificate
prior to the Distribution Date in September 2005 will be deemed to
have represented, by virtue of its acquisition or holding of such
<PAGE> 97
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 are 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(e)(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(e)
shall indemnify and hold harmless the Company, the Trustee, the Master
Servicer, the Trust and Credit Suisse First Boston Corporation from
and against any and all liabilities, claims, costs or expenses
incurred by such parties as a result of such acquisition or holding.
(f) (i) In the case of any Class B Certificate presented for
registration in the name of any Person, the prospective transferee shall be
required to provide the Trustee and the Company either (A) 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 B
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 (B) an officer's certificate substantially in the form of
Exhibit O 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.
(ii) Notwithstanding the foregoing, an Opinion of Counsel or
certification as described in Section 5.01(f)(i) above will not be
required with respect to the transfer of any Class B Certificate to a
Clearing Agency, or for any subsequent transfer of any interest in a
<PAGE> 98
Class B Certificate for so long as such Certificate is a Book-Entry
Certificate (each such Class B Certificate, a "Book-Entry Class B
Certificate"). Any transferee of a Book-Entry Class B 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"), (b) such Certificate was
rated "BBB-" or better (or its equivalent) by the Rating Agencies at
the time of such transferee's acquisition of such Certificate (or
interest therein) or (c) such transferee is an insurance company, the
source of funds to be used by it to acquire or hold such Certificate
is an "insurance company general account" (within the meaning of
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-
60), and the conditions in Section I and III of PTCE 95-60 have been
satisfied (each entity that satisfies this clause (c), a "Complying
Insurance Company").
(iii) If any Book-Entry Class B Certificate (or any interest
therein) is acquired or held in violation of the provisions of Section
5.01(f)(ii) above, then the last preceding transferee that either (i)
is not a Plan Investor, (ii) acquired such Certificate at a time when
such Certificate was rated "BBB-" or better by the Rating Agencies or
(iii) is a Complying Insurance Company 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 Class B Certificate (or interest therein) was
effected in violation of the restrictions in this Section 5.01(f)
shall indemnify and hold harmless the Company, the Trustee, the Master
Servicer, the Trust and Credit Suisse First Boston Corporation 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
interests, initial per annum Certificate Interest Rates, initial Class
Principal Balances and Final Maturity Dates as specified in the Preliminary
<PAGE> 99
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
of any Certificate, and there is delivered to the Trustee or any
Authenticating Agent (and with respect to the Insured Certificates, the
<PAGE> 100
Certificate Insurer) 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 II Trust Fund (or with
respect to the Class R-1 Certificates, the residual ownership interests 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, the Certificate Insurer (with respect to the Insured Certificates)
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 Section 4.04 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, B 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
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respects be entitled to the same benefits under this Agreement as
definitive Certificates.
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
<PAGE> 102
Participants.
For purposes of any provision of this Agreement requiring or
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.
<PAGE> 103
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
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 or
REMIC II 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
<PAGE> 104
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 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
<PAGE> 105
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:
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 II
Trust Fund; or
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 II Trust Fund; or
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
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
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
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
<PAGE> 106
not have been remedied, either the Trustee, or the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of the REMIC
II 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
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
<PAGE> 107
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:
(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 II Trust Fund; or
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
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
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 II 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 II 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.
<PAGE> 108
(a) On and after the date on which the Master Servicer receives a
notice of termination pursuant to Section 7.01 or the Master Servicer
resigns pursuant to Section 6.04, 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 all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto arising on or
after such date of termination or resignation 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 prior to such date of
termination or resignation 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.
(b) In connection with any termination or resignation of the Master
Servicer hereunder, in the event that any of the Mortgage Loans are MERS
Loans, either (i) the successor Master Servicer (including the Trustee if
the Trustee is acting as successor Master Servicer) shall represent and
warrant that it is a member of MERS in good standing and shall agree to
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Loans, in which case the
predecessor Master Servicer shall cooperate with the successor Master
Servicer in registering the transfer of servicing of the MERS Loans to the
successor Master Servicer on the MERSr System in accordance with MERS'
rules and procedures, or (ii) if the successor Master Servicer is not a
member of MERS, the predecessor Master Servicer shall cooperate with the
successor Master Servicer in (A) de-registering the MERS Loans from the
MERSr System and (B) causing MERS to execute and deliver an assignment from
<PAGE> 109
MERS to the Trustee of the Mortgage securing each MERS Loan in recordable
form and in the form otherwise provided under clause (X)(iii) of the
definition of "Mortgage File" herein and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable
to effect such de-registration and assignment. The successor Master
Servicer shall promptly cause the assignments referred to in clause (ii)(B)
of the immediately preceding sentence 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. The predecessor
Master Servicer shall bear any and all fees of MERS and all fees and costs
of preparing and recording any assignments of Mortgages as required under
this Section 7.02(b).
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.
(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:
Prior to the occurrence of an Event of Default and after the
<PAGE> 110
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,
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
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 II 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.
(e) Concurrently with the execution hereof, the Trustee shall execute
and deliver to the Certificate Insurer the Insurance Agreement dated of
even date herewith and shall perform its obligations thereunder in
accordance with the terms thereof. The Trustee shall have no duty to review
or otherwise determine the adequacy of the Insurance Agreement on behalf of
the Certificateholders.
(e) The Trustee acknowledges that it is named as the "insured" under
the Surety Bonds and acknowledges that the Master Servicer has agreed,
pursuant to Section 3.18 hereof, to perform the obligations of the Trustee
under the Surety Bonds on behalf of the Trustee. Each of the Trustee and
the Master Servicer hereby covenants not to cancel the Surety Bonds until
the Trust Fund is terminated in accordance with the provisions hereof.
(f) The Trustee acknowledges that it is named as the "insured" under
<PAGE> 111
each of the Mortgage Portfolio Insurance Policy and the Special Hazard
Insurance Policy and acknowledges that the Master Servicer has agreed,
pursuant to Section 3.22 and Section 3.23 hereof, to perform the
obligations of the Trustee under the Mortgage Portfolio Insurance Policy
and the Special Hazard Insurance Policy, respectively, in each case, on
behalf of the Trustee. Each of the Trustee and the Master Servicer hereby
covenant not to cancel either of the Mortgage Portfolio Insurance Policy or
the Special Hazard Insurance Policy until the Trust is terminated in
accordance with the provisions hereof.
Section 8.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 8.01:
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;
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;
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;
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 (including the Certificate Insurer, with
respect to the Insured Certificates) evidencing Percentage Interests
aggregating not less than 25% of the REMIC II 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;
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;
<PAGE> 112
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;
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
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
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 of the Trustee. Except as otherwise expressly provided herein,
<PAGE> 113
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 and
indemnify the Trustee from any loss, liability or expense incurred by it
hereunder (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 resignation or removal of 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 or the REMIC II 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
<PAGE> 114
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 II 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
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, (ii) the Certificate Insurer and
(iii) 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
<PAGE> 115
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 or the REMIC II Trust Fund may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all
or any part of the REMIC I Trust Fund or the REMIC II Trust Fund and to
vest in such Person or Persons, in such capacity, such title to the REMIC I
Trust Fund or the REMIC II 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
the REMIC II 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
<PAGE> 116
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
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
<PAGE> 117
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
Certificateholders as provided in Section 4.01, Section 4.04(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
<PAGE> 118
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
Section 9.01. Termination Upon Repurchase by the Company or Liquidation of
All Mortgage Loans.
(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 the following paragraph of this Section 9.01(a) 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) the aggregate outstanding
Principal Balance of such Mortgage Loans (other than Liquidated Mortgage
Loans) plus accrued interest at the applicable Pass-Through Rate (such Pass-
Through Rate calculated without reduction for interest with respect to the
Excess Amount pursuant to clause (iv) of the definition of "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, or (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 and the Certificate Insurer of all
amounts required to be paid to them hereunder; 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.
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
<PAGE> 119
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 the preceding paragraph. If such right is exercised, the
Company shall provide to the Trustee and to the Certificate Insurer (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 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 the first paragraph of this Section 9.01(a) in
order to terminate the Trust Fund or repurchase the Mortgage Loans under
this Section 9.01.
(b) Notice of any termination, 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.
Section 9.02. Additional Termination Requirements.
(a) In the event the Company exercises its purchase option as
provided in Section 9.01, the REMIC I Trust Fund and the REMIC II Trust
Fund shall be terminated in accordance with the following additional
requirements, unless the Company, at its own expense, obtains for the
Trustee and the Certificate Insurer an Opinion of Counsel to the effect
<PAGE> 120
that the failure of the REMIC I Trust Fund and REMIC II 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 and the REMIC II Trust Fund as described in Section 860F of the Code,
or (ii) cause the REMIC I Trust Fund or the REMIC II Trust Fund to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
Within 90 days prior to the final Distribution Date set forth in
the notice given by the Trustee under Section 9.01, 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 and the REMIC II 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 Company, on behalf of the REMIC
I Trust Fund and the REMIC II Trust Fund; and
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 and the REMIC II Trust Fund to the Company for cash
in the amount specified in Section 9.01.
(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, but with the prior written consent of the Certificate
Insurer with respect to any amendment that adversely affects the interests
of any of the Holders of the Insured Certificates: (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 of any property at any time included in the
REMIC I Trust Fund or the REMIC II Trust Fund, or to assure the conveyance
to the Trustee of any property included in the REMIC I Trust Fund or the
REMIC II Trust Fund; and (v) pursuant to Section 5.01(c)(v). No such
<PAGE> 121
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 II 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 the
REMIC II 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
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.
<PAGE> 122
Section 10.03. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement, the REMIC I Trust Fund or the REMIC II 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 or the REMIC II 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 REMIC II 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 II 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
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.
<PAGE> 123
For so long as no Certificate Insurer Default exists (and (i) on or
before the Distribution Date in September 2005, whether or not any payments
with respect to Deficiency Amounts or Preference Amounts have been made and
(ii) after the Distribution Date in September 2005, only if and for so long
as the Class A-4 Reimbursement Amount is greater than zero), the
Certificate Insurer shall be deemed to be the sole Holder of all
outstanding Insured Certificates with respect to any rights hereunder
(other than the right to receive distributions on such Insured
Certificates, except as provided in Section 3.21); provided that such
rights may not be used to reduce the rights of the Holders of the Insured
Certificates to receive distributions or to otherwise impair their rights
under this Agreement as further described in the definition of
"Certificateholder."
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
<PAGE> 124
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
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:
the occurrence of an Event of Default pursuant to Section 7.01,
subject to the provisions of Section 8.01(d);
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;
the appointment of a successor Trustee pursuant to Section 8.08;
the filing of any claim under or the cancellation or modification
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
<PAGE> 125
any Servicer;
any change in the location of the Certificate Account, any
Custodial Account for P&I or any Custodial Account for Reserves;
the repurchase of any Mortgage Loan pursuant to a Purchase
Obligation or as permitted by this Agreement or the repurchase of the
outstanding Mortgage Loans pursuant to Section 9.01;
the occurrence of the final Distribution Date or the termination
of the trust pursuant to Section 9.01(a)(ii);
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
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 4.05, Section 3.12, Section 3.13 or Section 3.15 or
any other statements or reports to the Rating Agencies (with a copy to the
Certificate Insurer) 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 (with
a copy to the Certificate Insurer) 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, all as of the day and year first above written.
PNC MORTGAGE SECURITIES CORP.
By:
Its:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
<PAGE> 126
By:
Its:
ACKNOWLEDGEMENT OF CORPORATION
STATE OF ILLINOIS )
) SS.
COUNTY OF LAKE )
On this 28th day of December 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.
Notary Public
(SEAL)
ACKNOWLEDGEMENT
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF SUFFOLK )
On this 28th day of December 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 badis 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.
<PAGE> 127
WITNESS my hand and official seal.
Signature (SEAL)
Exhibit A
CUSIP 69348R G42
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-1
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another 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 December 28, 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 PRIOR TO THE DISTRIBUTION DATE IN
SEPTEMBER 2005 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.
<PAGE> 128
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 PRIOR TO THE DISTRIBUTION
DATE IN SEPTEMBER 2005 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 ARE 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(e) OF THE POOLING AGREEMENT SHALL INDEMNIFY
AND HOLD HARMLESS THE COMPANY, THE TRUSTEE, THE MASTER SERVICER, THE TRUST
AND CREDIT SUISSE FIRST BOSTON CORPORATION FROM AND AGAINST ANY AND ALL
LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT
OF SUCH ACQUISITION OR HOLDING.
Series 2000-9 Portion of the Class A-1 Principal
Balance as of
the Cut-Off Date Evidenced by this
Certificate:
$89,637,452.00
Class A-1 Certificate Interest Rate: Variable
Cut-Off Date: December 1, 2000
First Distribution Date: January 25,
2001
Last Scheduled Distribution Date: December
25, 2030
<PAGE> 129
Assumed Final Maturity Date (if this
Certificate is purchased before the
Distribution Date in September 2005):
September 25, 2005
Class A-1 Principal Balance
as of the Cut-Off Date: $89,637,452.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R G59
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-2
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another 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 December 28, 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-2 CERTIFICATE PRIOR TO THE DISTRIBUTION DATE IN
SEPTEMBER 2005 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
<PAGE> 130
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-2 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 PRIOR TO THE DISTRIBUTION
DATE IN SEPTEMBER 2005 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 ARE 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(e) OF THE POOLING AGREEMENT SHALL INDEMNIFY
AND HOLD HARMLESS THE COMPANY, THE TRUSTEE, THE MASTER SERVICER, THE TRUST
AND CREDIT SUISSE FIRST BOSTON CORPORATION FROM AND AGAINST ANY AND ALL
LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT
OF SUCH ACQUISITION OR HOLDING.
Series 2000-9 Portion of the Class A-2 Principal
Balance as of
the Cut-Off Date Evidenced by this
Certificate:
$60,006,255.00
Class A-2 Certificate Interest Rate: Variable
Cut-Off Date: December 1, 2000
First Distribution Date: January 25,
<PAGE> 131
2001
Last Scheduled Distribution Date: December
25, 2030
Assumed Final Maturity Date (if this
Certificate is purchased before the
Distribution Date in September 2005):
September 25, 2005
Class A-2 Principal Balance
as of the Cut-Off Date: $60,006,255.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R G67
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-3
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another 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 December 28, 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-3 CERTIFICATE PRIOR TO THE DISTRIBUTION DATE IN
SEPTEMBER 2005 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
<PAGE> 132
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-3 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 PRIOR TO THE DISTRIBUTION
DATE IN SEPTEMBER 2005 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 ARE 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(e) OF THE POOLING AGREEMENT SHALL INDEMNIFY
AND HOLD HARMLESS THE COMPANY, THE TRUSTEE, THE MASTER SERVICER, THE TRUST
AND CREDIT SUISSE FIRST BOSTON CORPORATION FROM AND AGAINST ANY AND ALL
LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT
OF SUCH ACQUISITION OR HOLDING.
Series 2000-9 Portion of the Class A-3 Principal
Balance as of
the Cut-Off Date Evidenced by this
Certificate:
$45,312,686.00
Class A-3 Certificate Interest Rate: Variable
<PAGE> 133
Cut-Off Date: December 1, 2000
First Distribution Date: January 25,
2001
Last Scheduled Distribution Date: December
25, 2030
Assumed Final Maturity Date (if this
Certificate is purchased before the
Distribution Date in September 2005):
September 25, 2005
Class A-3 Principal Balance
as of the Cut-Off Date: $45,312,686.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R G75
MORTGAGE PASS-THROUGH CERTIFICATE
Class A-4
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another 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 December 28, 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-4 CERTIFICATE PRIOR TO THE DISTRIBUTION DATE IN
SEPTEMBER 2005 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
<PAGE> 134
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-4 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 PRIOR TO THE DISTRIBUTION
DATE IN SEPTEMBER 2005 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 ARE 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(e) OF THE POOLING AGREEMENT SHALL INDEMNIFY
AND HOLD HARMLESS THE COMPANY, THE TRUSTEE, THE MASTER SERVICER, THE TRUST
AND CREDIT SUISSE FIRST BOSTON CORPORATION FROM AND AGAINST ANY AND ALL
LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT
OF SUCH ACQUISITION OR HOLDING.
Series 2000-9 Portion of the Class A-4 Principal
Balance as of
the Cut-Off Date Evidenced by this
Certificate:
$60,644,000.00
<PAGE> 135
Class A-4 Certificate Interest Rate: Variable
Cut-Off Date: December 1, 2000
First Distribution Date: January 25,
2001
Last Scheduled Distribution Date: December
25, 2030
Assumed Final Maturity Date (if this
Certificate is purchased before the
Distribution Date in September 2005):
September 25, 2005
Class A-4 Principal Balance
as of the Cut-Off Date: $60,644,000.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R G83
MORTGAGE PASS-THROUGH CERTIFICATE
Class X
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another 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 December 28, 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.
Series 2000-9 Portion of the Class X Notional Amount
as of the
Cut-Off Date Evidenced by this
Certificate:
$255,600,493.00
<PAGE> 136
Class X Certificate Interest Rate:
Variable. The Class X Certificate
Interest Rate shall be applied to the
Class X Notional Amount.
Cut-Off Date: December 1, 2000
First Distribution Date: January 25,
2001
Last Scheduled Distribution Date:
September 25, 2005
Class X Principal Balance
as of the Cut-Off Date: $0.00
Class X Notional Amount
as of the Cut-Off Date:
$255,600,493.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R G91
MORTGAGE PASS-THROUGH CERTIFICATE
Class B
Evidencing a Percentage Interest in a trust fund whose assets consist of
interests in another 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 December 28,
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 B 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
<PAGE> 137
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 B 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) 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 THIS CERTIFICATE WITH "PLAN ASSETS" OF ANY SUCH PLAN (A
"PLAN INVESTOR"), (B) THIS CERTIFICATE WAS RATED "BBB-" OR BETTER (OR
ITS EQUIVALENT) BY THE RATING AGENCIES AT THE TIME OF SUCH
TRANSFEREE'S ACQUISITION OF THIS CERTIFICATE (OR INTEREST HEREIN) OR
(C) SUCH TRANSFEREE IS AN INSURANCE COMPANY, THE SOURCE OF FUNDS TO BE
USED BY IT TO ACQUIRE OR HOLD THIS CERTIFICATE IS AN "INSURANCE
COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60), AND THE
CONDITIONS IN SECTION I AND III OF PTCE 95-60 HAVE BEEN SATISFIED
(EACH ENTITY THAT SATISFIES THIS CLAUSE (C), A "COMPLYING INSURANCE
COMPANY"); 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 THAT EITHER (I) IS NOT A PLAN INVESTOR,
(II) ACQUIRED THIS CERTIFICATE AT A TIME WHEN THIS CERTIFICATE WAS
RATED "BBB-" OR BETTER (OR ITS EQUIVALENT) BY THE RATING AGENCIES OR
(III) IS A COMPLYING INSURANCE COMPANY 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(f) OF THE POOLING AGREEMENT SHALL INDEMNIFY
AND HOLD HARMLESS THE COMPANY, THE TRUSTEE, THE MASTER SERVICER, THE TRUST
AND CREDIT SUISSE FIRST BOSTON CORPORATION FROM AND AGAINST ANY AND ALL
LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT
OF SUCH ACQUISITION OR HOLDING.
<PAGE> 138
The Class B 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 2000-9 Portion of the Class B Principal Balance
as of the Cut-Off Date Evidenced by this
Certificate:
$3,235,450.00
Class B Certificate Interest Rate: Variable
Cut-Off Date: December 1, 2000
First Distribution Date: January 25, 2001
Last Scheduled Distribution Date: December 25, 2030
Class B Principal Balance
as of the Cut-Off Date: $3,235,450.00
Cede & Co.
Registered Owner
Exhibit A
CUSIP 69348R H33
MORTGAGE PASS-THROUGH CERTIFICATE
Class R-2
Evidencing a Percentage Interest in certain distributions with respect to a
pool of conventional one- to four-family mortgage loans formed and
administered by
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-2 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-2 CERTIFICATE
<PAGE> 139
BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
IN THE CASE OF ANY CLASS R-2 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 A CLASS R-2
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, THE REMIC II TRUST FUND OR THE COMPANY OR
(II) AN OFFICER'S CERTIFICATE IN THE FORM DESCRIBED IN SECTION 5.01(d)(ii)
OF THE POOLING AGREEMENT.
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 2000-9 Percentage Interest evidenced by this
Class R-2 Certificate in the
distributions to be made with respect to
the Class R-2 Certificates:
%
Class R-2 Certificate Interest Rate:
7.200%. Additionally the Class R-2
Certificates are entitled to the Residual
Distribution Amount as defined in the
Pooling Agreement.
Cut-Off Date: December 1, 2000
First Distribution Date: January 25, 2001
Last Scheduled Distribution Date: December 25, 2030
Class R-2 Principal Balance as of the Cut-Off Date: $50.00
Registered Owner
Certificate No.
Exhibit B
CUSIP 69348R H25
MORTGAGE PASS-THROUGH CERTIFICATE
Class R-1
<PAGE> 140
Evidencing a Percentage Interest in certain distributions with respect to a
pool of conventional one- to four-family mortgage loans formed and
administered by
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-1 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-1 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-1 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 A CLASS R-1
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, THE REMIC II TRUST FUND OR THE COMPANY OR
(II) AN OFFICER'S CERTIFICATE IN THE FORM DESCRIBED IN SECTION 5.01(d)(ii)
OF THE POOLING AGREEMENT.
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.
<PAGE> 141
Series 2000-9 Percentage Interest evidenced by this
Class R-1 Certificate in the
distributions to be made with respect to
the Class R-1 Certificates:
%
Class R-1 Certificate Interest Rate:
7.200%. Additionally the Class R-1
Certificates are entitled to Excess
Liquidation Proceeds and the Residual
Distribution Amount as defined in the
Pooling Agreement.
Cut-Off Date: December 1, 2000
First Distribution Date: January 25, 2001
Last Scheduled Distribution Date: December 25, 2030
Class R-1 Principal Balance as of the Cut-Off Date: $50.00
Registered Owner
Certificate No.
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
<PAGE> 142
Certificateholder's Percentage Interest represented by this Certificate in
the portion of the REMIC I 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.
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
<PAGE> 143
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
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 II Trust
Fund. 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.
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 REMIC I 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
<PAGE> 144
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 the
Clean-Up Call Percentage 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
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
<PAGE> 145
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 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
Boston, MA 02111-1724
Telephone: (617) 662-1314
Facsimile: (617) 662-1435
<PAGE> 146
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
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
<PAGE> 147
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
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.
<PAGE> 148
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 code
Typed name and title of the Company's authorized officer
Signature of the Company's authorized officer Date
<PAGE> 149
Agreed to and accepted by PNC Mortgage Securities Corp.
Typed name and title of authorized representative
Signature of authorized representative Date
Exhibit F
[Reserved]
Exhibit G
[Reserved]
Exhibit H
FORM OF ADDITIONAL MATTER INCORPORATED INTO
THE FORM OF THE CERTIFICATES (OTHER THAN THE CLASS R-1 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 II 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
<PAGE> 150
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 REMIC II Available Distribution Amount for such
Distribution Date then distributable on the Certificates of this Class, as
specified in Section 4.04 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.
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)
<PAGE> 151
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 II 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
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 II 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
<PAGE> 152
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.
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 REMIC II 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.
[to be used only in the case of the Insured Certificates:] [Each
Holder of this Certificate hereby agrees for the benefit of the Certificate
Insurer that, to the extent the Certificate Insurer makes Insured Payments,
either directly or indirectly (as by paying through the Trustee), to the
Holders of the Insured Certificates, the Certificate Insurer will be
subrogated to the rights of such Holder to the extent of such payments.]
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
<PAGE> 153
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 the
Clean-Up Call Percentage 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
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 2000-9
<PAGE> 154
Re: PNC Mortgage Securities Corp. Mortgage Pass-Through
Certificates, Series 2000-9, Class [R-1] [R-2]
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 2000-9, Class [R-1][R-2] (the "Certificate"), pursuant
to Section 5.01 of the Pooling and Servicing Agreement (the "Pooling
Agreement"), dated as of December 1, 2000 among PNC Mortgage 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:
<PAGE> 155
Title:
Exhibit J
TRANSFEREE AFFIDAVIT AND AGREEMENT
STATE OF )
) 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-1][R-2] 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-1][R-2]
Certificates, and (ii) is acquiring the Class [R-1][R-2] 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-1][R-2] 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
<PAGE> 156
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-1][R-2] 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-1][R-2] Certificates if at any time
during the taxable year of the pass-through entity a disqualified
organization is the 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-1][R-2] 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-1][R-2] Certificates and the provisions of Section
5.01 of the Pooling Agreement under which the Class [R-1][R-2] 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-1][R-2]
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-1][R-2] 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-1][R-2] 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-1][R-2]
<PAGE> 157
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-1][R-
2] 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-1][R-2] 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-1][R-2] Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that
it will become insolvent or subject to a bankruptcy proceeding for so long
as any of the Class [R-1][R-2] Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the
Class [R-1][R-2] 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 and the REMIC II Trust
Fund (the "Trust Funds").
16. The Owner hereby agrees that it will not take any action
that could endanger the REMIC status of the Trust Funds or result in the
imposition of tax on the Trust Funds 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-1][R-2] Certificates
has represented to their transferor that, if the Class [R-1][R-2]
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-1][R-
2] Certificates as they become due.
18. [to be included only in the event the Owner does not deliver
an Opinion of Counsel pursuant to Section 5.01(d)(i) of the Pooling
Agreement] [The Owner is not an employee benefit or other plan subject to
the prohibited transaction provisions of the Employee Retirement Income
<PAGE> 158
Security Act of 1974, as amended, or Section 4975 of the Internal Revenue
Code of 1986, as amended, 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 Class [R-1][R-2] Certificates
with "plan assets" of any such plan.]
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
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
Form of Certificate Insurance Policy
Copies of the Certificate Insurance Policy (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,
<PAGE> 159
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
Boston, MA 02111-1724
Telephone: (617) 662-1314
Facsimile: (617) 662-1435
Exhibit L
[Reserved]
Exhibit M
[Date]
[Company]
Re: Pooling and Servicing Agreement dated as of December 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 2000-9
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
<PAGE> 160
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.
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 2000-9
PNC Mortgage Securities Corp.
75 North Fairway Drive
Vernon Hills, IL 60061
RE: PNC MORTGAGE SECURITIES CORP.
<PAGE> 161
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-9
(THE "TRUST") CLASS [A- ] 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.
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 are
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
Exhibit O
<PAGE> 162
BENEFIT PLAN AFFIDAVIT
State Street Bank and Trust Company, as Trustee
225 Franklin Street
Boston, MA 02110
Attn: Corporate Trust Department, PNC 2000-9
PNC Mortgage Securities Corp.
75 North Fairway Drive
Vernon Hills, IL 60061
RE: PNC MORTGAGE SECURITIES CORP.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-9
(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.
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;
(b) the Purchased Certificate was rated "BBB-" or better (or its
equivalent) by the Rating Agencies at the time of the Purchaser's
acquisition of the Purchased Certificate; or
(c) the Purchaser is an insurance company, the source of funds to be
used by it to acquire or hold the Purchased Certificate is an "insurance
company general account" (within the meaning of DOL Prohibited Transaction
Class Exemption ("PTCE") 95-60), and the conditions in Section I and III of
PTCE 95-60 have been satisfied.
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]
<PAGE> 163
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 P
MANDATORY CERTIFICATE PURCHASE AGREEMENT
This MANDATORY CERTIFICATE PURCHASE AGREEMENT (this "Agreement"),
dated as of December 28, 2000, is entered into between CDC Financial
Products Inc., a Delaware corporation ("CDC"), acting in all instances
through its Administrative Agent, as defined below, and State Street Bank
and Trust Company, the Trustee (the "Trustee") under the Pooling and
Servicing Agreement, dated as of December 1, 2000 (the "Pooling and
Servicing Agreement"), by and between PNC Mortgage Securities Corp.
("PNC"), as Depositor and Master Servicer, and the Trustee, acting solely
as an intermediary agent (the "Agent") for CDC and the holders of the Class
A Certificates (as defined herein) as of the Certificate Purchase Date (as
defined herein) and not as Trustee or on behalf of the Trust (as defined in
the Pooling and Servicing Agreement).
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:
"Administrative Agent": Caisse des Depots Securities Inc. or such
<PAGE> 164
other entity as CDC shall designate by written notice to the Agent, and
whose address for notice shall be as set forth in Section 11.
"Agent": The meaning given in the introductory paragraph hereto.
"CDC": The meaning given in the introductory paragraph hereto.
"Certificate Purchase Account": The meaning given in Section 3
hereof.
"Certificate Purchase Date": September 25, 2005 or, if such day is
not a Business Day, the next succeeding Business Day.
"Certificate Purchase Price": For each Class A Certificate, the sum
of (i) the outstanding Certificate Principal Balance of such Certificate on
the Certificate Purchase Date (after giving effect to any distributions of
principal payable pursuant to Section 4.04(a)(ii)(A) of the Pooling and
Servicing Agreement on such date and the allocation of the principal
portion of Realized Losses on such date) plus (ii) any portion of the
Interest Distribution Amount allocable to such Certificate for such date
remaining unpaid on such date (after giving effect to any distributions of
interest payable pursuant to Section 4.04(a)(ii)(A) of the Pooling and
Servicing Agreement on such date).
"Certificates": The Mortgage Pass-Through Certificates, Series 2000-9
issued under the Pooling and Servicing Agreement.
"Class A Certificates": The Certificates designated as Class A-1,
Class A-2, Class A-3 and Class A-4 under the Pooling and Servicing
Agreement.
"Eligible Investments": The meaning given in the Pooling and
Servicing Agreement.
"Parent Company": The meaning given in Section 9 hereof
"PNC": The meaning given in the introductory paragraph hereto.
"Pooling and Servicing Agreement": The meaning given in the
introductory paragraph hereto.
"Prospectus Supplement": The Prospectus Supplement, dated December
26, 2000, to the Prospectus, dated November 28, 2000, of PNC delivered in
connection with the public offering of the Certificates.
"Transferee": The meaning given in Section 4(c) hereof.
"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.
<PAGE> 165
(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. Purchase of Certificates
Subject to the terms and conditions hereof, (i) CDC hereby agrees to
purchase each of the Class A Certificates at the applicable Certificate
Purchase Price on the Certificate Purchase Date, (ii) each holder of a
Class A Certificate on such date shall be obligated to sell such
Certificate at the applicable Certificate Purchase Price on such date in
accordance with this Agreement, and (iii) the Agent hereby agrees to
facilitate the transfer of the Class A Certificates to the Transferee on
such date.
SECTION 3. Maintenance of the Certificate Purchase Account
(a) The Agent shall cause to be established and maintained a separate
account (the "Certificate Purchase Account") for purposes of receiving and
holding the Certificate Purchase Price for the Class A Certificates
deposited therein pursuant to Section 5.
(b) On the date on which the applicable Certificate Purchase Price
has been paid to the holder of each Class A Certificate pursuant to Section
7, the Agent shall withdraw from the Certificate Purchase Account and pay
to CDC any amounts then remaining in the Certificate Purchase Account.
(c) Amounts on deposit in the Certificate Purchase Account may be
invested in Eligible Investments at CDC's direction.
(d) To the extent that it constitutes a "reserve fund" for purposes
of the REMIC Provisions, the Certificate Purchase Account established
hereunder shall be an "outside reserve fund" as defined in Treasury
Regulation 1.860G-2(h), and in that regard (i) such fund shall be an
outside reserve fund and not an asset of either REMIC, (ii) such fund shall
be owned for federal tax purposes by CDC, and CDC shall report all amounts
of income, deduction, gain or loss accruing therefrom, and (iii) amounts
transferred by the REMIC to the fund shall be treated as distributed by the
REMIC to CDC.
SECTION 4. Notice of Purchase; Notice of Transferee
(a) On the Distribution Date in the second month prior to the
Certificate Purchase Date, the Agent shall give written notice by courier
and confirmed facsimile to CDC and the Administrative Agent of the
Certificate Purchase Date.
(b) On the Distribution Date in the month prior to the Certificate
Purchase Date, the Agent shall give written notice by letter to the holder
of each Class A Certificate, with a copy to CDC and the Administrative
Agent, specifying (i) that such Certificate shall be purchased in
accordance with this Agreement on the Certificate Purchase Date and that
<PAGE> 166
the applicable Certificate Purchase Price shall (upon the Agent's receipt
thereof in accordance with Section 5 of this Agreement) be payable to such
holder, (ii) the Certificate Purchase Date, (iii) the method of calculating
the Certificate Purchase Price payable to such holder (pursuant to the
definition of "Certificate Purchase Price"), (iv) if such Certificate is
then held in book-entry form, that such holder is required, pursuant to
Section 6(a) of this Agreement, to instruct the applicable Clearing Agency
to transfer the beneficial ownership interest in such Certificate to CDC or
its designee and (v) if such Certificate is not then held in book-entry
form, that such holder is required, pursuant to Section 6(b) of this
Agreement, to surrender such Certificate to the Certificate Registrar for
registration of transfer to CDC or its designee.
(c) Not later than ten (10) Business Days prior to the Certificate
Purchase Date, CDC shall give written notice to the Agent of (i) the person
(CDC or a person designated by CDC) to whom the Class A Certificates are to
be transferred on the Certificate Purchase Date (such person, the
"Transferee") and (ii) instructions for transfer of the Class A
Certificates to such Transferee.
(d) Not later than two (2) Business Days after its receipt of the
notice given by CDC pursuant to Section 4(c), the Agent shall forward a
copy of such notice to each Class A Certificateholder.
SECTION 5. Deposit of Certificate Purchase Price
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
pursuant to Section 4.02(b) of the Pooling and Servicing Agreement, the
Agent shall deliver a copy of such statement by courier and confirmed
facsimile to CDC and the Administrative Agent. Not later than one (1)
Business Day prior to the Certificate Purchase Date, CDC shall deposit or
cause to be deposited into the Certificate Purchase Account (by wire
transfer to the Agent of immediately available funds) the aggregate
Certificate Purchase Price for the Class A Certificates. At the request of
any holder of a Class A Certificate, the Agent shall give notice to such
holder of such deposit by or upon the order of CDC.
SECTION 6. Instruction to Transfer Book-Entry Certificates; Surrender
of Physical Certificates
(a) In the event that the Class A Certificates are then held in book-
entry form, not later than 12:00 noon New York City time on the Certificate
Purchase Date, each holder of a Class A Certificate shall instruct the
applicable Clearing Agency in writing, with a copy to the Agent, to
transfer the beneficial ownership interest in such Certificate to the
Transferee in accordance with the transfer instructions specified in the
notice received by such holder pursuant to Section 4(d).
(b) In the event that the Class A Certificates are not then held in
book-entry form, not later than one (1) Business Day prior to the
Certificate Purchase Date, each holder of a Class A Certificate shall
<PAGE> 167
surrender such Certificate to the Certificate Registrar for registration of
transfer (subject to the Agent's receipt of the aggregate Certificate
Purchase Price for the Class A Certificates in accordance with Section 5)
to the Transferee on the Certificate Purchase Date in accordance with the
transfer instructions specified in the notice received by such holder
pursuant to Section 4(d).
SECTION 7. Payment to Class A Certificateholders of Certificate
Purchase Price
With respect to each Class A Certificate, subject to (i) the Agent's
receipt of the notice given to the applicable Clearing Agency by the holder
of such Certificate pursuant to Section 6(a) (in the event the Class A
Certificates are then held in book-entry form) or (ii) the surrender of
such Certificate by the holder thereof to the Certificate Registrar
pursuant to Section 6(b) (in the event the Class A Certificates are not
then held in book-entry form), the Agent shall, on the Certificate Purchase
Date, withdraw from the Certificate Purchase Account the applicable
Certificate Purchase Price for such Certificate deposited therein in
accordance with Section 5, and distribute such Certificate Purchase Price
to the holder of such Certificate by wire transfer in immediately available
funds for the account of, or by check mailed to, such holder, as specified
by such holder and at the address of such holder appearing in the
Certificate Register.
SECTION 8. Obligation Irrevocable
CDC's obligation to make, or cause to be made, payments hereunder is
irrevocable, unconditional, non-assignable and not subject to any defense,
rights of setoff, counterclaim or rescission.
SECTION 9. Representations and Warranties of CDC
CDC hereby certifies, represents and warrants to the Agent that:
(i) Organization and Good Standing. CDC 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, Authority and Enforceability. CDC 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 CDC. This Agreement constitutes the legal, valid and binding obligation
of CDC enforceable against CDC in accordance with its terms.
(iii) No Violation. The execution and delivery of this Agreement
by CDC does not, and the consummation of the transactions contemplated
hereby and the fulfillment of the terms hereof will 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
<PAGE> 168
incorporation or bylaws of CDC, or any indenture, agreement or other
instrument to which CDC is a party or by which it is bound; 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; or violate
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over CDC or any of its properties.
(iv) No Consent. The execution and delivery of this Agreement by
CDC does not, and the consummation of the transactions contemplated hereby
and the fulfillment of the terms hereof will not, require the consent or
approval of, the giving of notice to, the filing or registration with, or
the taking of any other action with respect to, any court or governmental
agency or body having jurisdiction over CDC or any of its properties.
(v) Non-Affiliate. CDC is not an affiliate of the Agent, PNC,
Credit Suisse First Boston Corporation, the Certificate Insurer, the
Mortgage Pool Insurer or the Special Hazard Insurer.
(vi) QIB. CDC is a "qualified institutional buyer" as defined in
Rule 144A under the Securities Act of 1933, as amended.
(vii) Prospectus. CDC has received a copy of the Prospectus.
(viii) Parent Guarantee. Pursuant to the Guarantee of Caisse des
Depots et Consignations of CDC Financial Products Inc. dated as of December
14, 1998, Caisse des Depots et Consignations, CDC's indirect parent (the
"Parent Company"), has unconditionally and irrevocably guaranteed all of
the obligations of CDC, including CDC's obligations pursuant to the terms
of this Agreement.
(ix) Prospectus Disclosure. The information beginning in the
fourth paragraph of the section of the Prospectus Supplement entitled
"Description of the Certificates - Mandatory Purchase of the Class A
Certificates" is true and correct in all material respects.
(x) Financial Statements. The consolidated financial statements
of the Parent Company as of December 31, 1999 appear as the consolidated
financial statements of "Caisse des Depots Group" as of December 31, 1999
on the Parent Company website (website address:
http://www.caissedesdepots.fr/cdd/uk/sommaire.htm), and such consolidated
financial statements fairly present, in all material respects, the
financial condition of the Parent Company as of such date and for the
period covered by such statements in accordance with French generally
accepted accounting principles consistently applied, and, to the best of
CDC's knowledge, since December 31, 1999, there has been no material change
in the financial condition of the Parent Company which would materially and
adversely affect its ability to guarantee the obligations of CDC.
SECTION 10. Amendment
No amendment or waiver of any provision of this Agreement shall be
effective unless the same shall be in writing and signed by CDC and the
<PAGE> 169
Agent, 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 11. Notices
All demands, notices, communications and instructions upon or to CDC,
the Administrative Agent or the Agent 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 CDC, 9 West 57th Street, New York, NY
10019, Attn: Head of Capital Markets, telephone no.: (212) 891-6100, (b) in
the case of the Administrative Agent, Caisse des Depots Securities Inc.,
Attn: Head of Capital Markets, telephone no.: (212) 891-6100, and (c) in
the case of the Agent, its Corporate Trust Office, telephone no.: (617) 662-
1314, Facsimile no.: (617) 662-1435; or, as to each of the foregoing, at
such other address or facsimile number as shall be designated by written
notice to the other party.
SECTION 12. Successors and Assigns
This Agreement shall be binding upon, and shall inure to the benefit
of, the successors of CDC and the successors and assigns of the Agent for
the benefit of the holders of the Class A Certificates. CDC shall have no
right to assign any of its rights or obligations hereunder.
SECTION 13. Fees and Expenses; Indemnification
(a) CDC agrees (i) to pay or reimburse the Agent for its attorneys'
fees and expenses incurred in connection with the preparation of this
Agreement and (ii) to pay the Agent's compensation for its normal services
hereunder.
(b) CDC agrees to reimburse the Agent on demand for all costs and
expenses incurred in connection with the administration of this Agreement
or the performance or observance of its duties hereunder which are in
excess of its compensation for normal services hereunder, including without
limitation, payment of any legal fees and expenses incurred by the Agent in
connection with resolution of any claim by any party hereunder.
(c) CDC agrees to indemnify the Agent (and its directors, officers
and employees) and hold it (and such directors, officers and employees)
harmless from and against any loss, liability, damage, cost and expense of
any nature incurred by the Agent arising out of or in connection with this
Agreement or with the administration of its duties hereunder, including but
not limited to attorneys' fees and other costs and expenses of defending or
preparing to defend against any claim of liability unless and except to the
extent such loss, liability, damage, cost and expense shall be caused by
the Agent's gross negligence or willful misconduct. The foregoing
<PAGE> 170
indemnification and agreement to hold harmless shall survive any
termination of this Agreement.
SECTION 14. Concerning the Agent
(a) The Agent (i) shall not be obligated to take any legal or other
action hereunder (other than pursuant to its obligation to perform the
ordinary administrative services expressly provided herein) which might in
its judgment involve or cause it to incur any expense or liability unless
it shall have been furnished with acceptable indemnification, (ii) may rely
on and shall be protected in acting or refraining from acting upon any
written notice, instruction (including, without limitation, wire transfer
instructions, whether incorporated herein or provided in a separate written
instruction), instrument, statement, certificate, request or other document
furnished to it hereunder and believed by it to be genuine and to have been
signed or presented by the proper person, and shall have no responsibility
or duty to make inquiry as to or to determine the genuineness, accuracy or
validity thereof (or any signature appearing thereon), or of the authority
of the person signing or presenting the same, and (iii) may consult counsel
satisfactory to it, including in-house counsel, and the opinion or advice
of such counsel in any instance shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or advice of
such counsel.
(b) The Agent shall not be liable to anyone for any action taken or
omitted to be taken by it hereunder except in the case of the Agent's gross
negligence or willful misconduct in breach of the terms of this Agreement.
In no event shall the Agent be liable for indirect, punitive, special or
consequential damage or loss whatsoever, even if the Agent has been
informed of the likelihood of such loss or damage and regardless of the
form of action.
(c) In the event that CDC fails to deposit or cause to be deposited
the aggregate Certificate Purchase Price for the Class A Certificates with
the Agent pursuant to Section 5, or otherwise fails to perform any of its
obligations hereunder, the Agent shall have no obligation to pursue any
legal remedies with respect thereto on behalf of the Class A
Certificateholders; the pursuit of any such legal remedies shall be the
sole responsibility of the Class A Certificateholders.
(d) In the event that any holder of a Class A Certificate fails to
instruct the applicable Clearing Agency to transfer the beneficial
ownership interest in such Certificate pursuant to Section 6(a) or fails to
surrender such Certificate to the Certificate Registrar pursuant to Section
6(b), as applicable, the Agent shall have no obligation to pursue any legal
remedies with respect thereto on behalf of CDC; the pursuit of any such
legal remedies shall be the sole responsibility of CDC.
(e) The Trustee (in its capacity as Trustee) shall not have any
obligation whatsoever to pay the Certificate Purchase Price to the Class A
Certificateholders or to cause the transfer of the Class A Certificates to
<PAGE> 171
the Transferee.
SECTION 15. 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 16. 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 17. 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 18. Governing Law
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 Mandatory
Certificate Purchase Agreement to be duly executed by their respective
officers as of the day and year first above written.
CDC FINANCIAL PRODUCTS INC.
By:
Name:
Title:
By:
Name:
Title:
<PAGE> 172
STATE STREET BANK AND TRUST COMPANY, acting
solely as an intermediary agent for CDC and
the holders of the Class A Certificates as
of the Certificate Purchase Date and not as
Trustee or on behalf of the Trust or
individually
By:
Name:
Title:
Exhibit Q
Form of Mortgage Portfolio Insurance Policy
Copies of the Mortgage Portfolio Insurance Policy (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
Boston, MA 02111-1724
Telephone: (617) 662-1314
Facsimile: (617) 662-1435
Exhibit R
<PAGE> 173
Form of Special Hazard Insurance Policy
Copies of the Special Hazard Insurance Policy (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
Boston, MA 02111-1724
Telephone: (617) 662-1314
Facsimile: (617) 662-1435
