- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest Event
Reported) March 20, 2000
MERRILL LYNCH MORTGAGE INVESTORS, INC.
--------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 333-81429 13-5674085
- ----------------------------- -------------- -------------------
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
250 Vesey Street
World Financial Center, North Tower
New York, New York 10281
- ------------------------------------ ---------
(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code (212) 449-1000
----- --------
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Item 5. Other Events.
- ---- ------------
Description of the Certificates and the Mortgage Pool
- -----------------------------------------------------
On March 20, 2000, Merrill Lynch Mortgage Investors, Inc. (the
"Company") entered into a Pooling and Servicing Agreement dated as of March 1,
2000 (the "Pooling and Servicing Agreement"), by and among the Company, as
depositor, Litton Loan Servicing LP, as servicer, and The Chase Manhattan
Bank, as trustee (the "Trustee") providing for the issuance of the Company's
First Franklin Mortgage Loan Asset Backed Certificates, Series 2000-FF1. The
Pooling and Servicing Agreement is annexed hereto as Exhibit 99.1.
Item 7. Financial Statements, Pro Forma Financial
- ---- -----------------------------------------
Information and Exhibits.
------------------------
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
99.1. The Pooling and Servicing Agreement, dated as of March 1, 2000,
by and among the Company, Litton Loan Servicing LP and the Trustee.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
MERRILL LYNCH MORTGAGE INVESTORS, INC.
By: /s/ Peter Cerwin
--------------------------
Peter Cerwin
Vice President
Dated: April 5, 2000
Exhibit Index
-------------
Exhibit
- -------
99.1. Pooling and Servicing Agreement, dated as of March 1, 2000, by and
among, the Company, Litton Loan Servicing LP and the Trustee.
EXHIBIT 99.1
- ------------
MERRILL LYNCH MORTGAGE INVESTORS, INC.,
Depositor
LITTON LOAN SERVICING LP,
Servicer
and
THE CHASE MANHATTAN BANK,
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2000
-----------------------------------
First Franklin Mortgage Loan Asset Backed Certificates
Series 2000-FF1
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
ARTICLE I DEFINITIONS.................................................................................... 2
SECTION 1.01.DEFINED TERMS................................................................................2
ACCRUED CERTIFICATE INTEREST..............................................................................2
ADDITION NOTICE...........................................................................................2
ADJUSTABLE RATE MORTGAGE LOAN.............................................................................2
ADJUSTED OVERCOLLATERALIZATION AMOUNT.....................................................................2
ADJUSTED OVERCOLLATERALIZATION RELEASE AMOUNT.............................................................3
ADJUSTMENT DATE...........................................................................................3
ADVANCE...................................................................................................3
AFFILIATE.................................................................................................3
AGGREGATE LOAN BALANCE....................................................................................3
AGREEMENT.................................................................................................3
APPLIED REALIZED LOSS AMOUNT..............................................................................3
ASSIGNMENT................................................................................................3
AVAILABLE CAPPED INTEREST.................................................................................4
AVAILABLE FUNDS PASS-THROUGH RATE.........................................................................4
BANKRUPTCY CODE...........................................................................................4
BASIS RISK RESERVE FUND...................................................................................4
BASIS RISK SHORTFALL......................................................................................4
BOOK-ENTRY CERTIFICATE....................................................................................4
BUSINESS DAY..............................................................................................4
CASH-OUT REFINANCING......................................................................................4
CERTIFICATE...............................................................................................5
CERTIFICATE FACTOR........................................................................................5
CERTIFICATE OWNER.........................................................................................5
CERTIFICATE PRINCIPAL BALANCE.............................................................................5
CERTIFICATE REGISTER......................................................................................5
CERTIFICATEHOLDER.........................................................................................5
CLASS.....................................................................................................5
CLASS A CERTIFICATE.......................................................................................5
CLASS A INTEREST..........................................................................................6
CLASS A INTEREST CARRY FORWARD AMOUNT.....................................................................6
CLASS A PRINCIPAL DISTRIBUTION AMOUNT.....................................................................6
CLASS B APPLIED REALIZED LOSS AMOUNT......................................................................6
CLASS B CERTIFICATE.......................................................................................6
CLASS B INTEREST..........................................................................................6
CLASS B INTEREST CARRY FORWARD AMOUNT.....................................................................6
CLASS B PRINCIPAL DISTRIBUTION AMOUNT.....................................................................6
CLASS B REALIZED LOSS AMORTIZATION AMOUNT.................................................................7
CLASS B UNPAID REALIZED LOSS AMOUNT.......................................................................7
CLASS BB CERTIFICATE......................................................................................7
CLASS BB NOTIONAL AMOUNT..................................................................................7
CLASS C INTEREST..........................................................................................7
CLASS C REGULAR INTEREST REALIZED LOSS AMOUNT.............................................................7
CLASS CERTIFICATE BALANCE.................................................................................8
CLASS IO COMPONENT 1......................................................................................8
CLASS IO COMPONENT 2......................................................................................8
CLASS IO COMPONENT 3......................................................................................8
CLASS IO COMPONENT 4......................................................................................8
CLASS M CERTIFICATES......................................................................................8
CLASS M-1 APPLIED REALIZED LOSS AMOUNT....................................................................8
CLASS M-1 CERTIFICATE.....................................................................................9
CLASS M-1 INTEREST........................................................................................9
CLASS M-1 INTEREST CARRY FORWARD..........................................................................9
CLASS M-1 PRINCIPAL DISTRIBUTION AMOUNT...................................................................9
CLASS M-1 REALIZED LOSS AMORTIZATION AMOUNT...............................................................9
CLASS M-1 UNPAID REALIZED LOSS AMOUNT.....................................................................9
CLASS M-2 APPLIED REALIZED LOSS AMOUNT....................................................................9
CLASS M-2 CERTIFICATE.....................................................................................9
CLASS M-2 INTEREST........................................................................................10
CLASS M-2 INTEREST CARRY FORWARD..........................................................................10
CLASS M-2 PRINCIPAL DISTRIBUTION AMOUNT...................................................................10
CLASS M-2 REALIZED LOSS AMORTIZATION AMOUNT...............................................................10
CLASS M-2 UNPAID REALIZED LOSS AMOUNT.....................................................................10
CLASS R CERTIFICATE.......................................................................................10
CLASS R1 INTEREST.........................................................................................10
CLASS R2 INTEREST.........................................................................................11
CLASS T1-1 INTEREST.......................................................................................11
CLASS T1-2 INTEREST.......................................................................................11
CLASS T1-3 INTEREST.......................................................................................11
CLASS T1-4 INTEREST.......................................................................................11
CLASS T1-5 INTEREST.......................................................................................11
CLASS X CERTIFICATES......................................................................................11
CLASS X DISTRIBUTABLE AMOUNT..............................................................................11
CLOSING DATE..............................................................................................11
CODE......................................................................................................11
COLLECTION ACCOUNT........................................................................................11
COLLECTION PERIOD.........................................................................................12
COMPENSATING INTEREST.....................................................................................12
CORPORATE TRUST OFFICE....................................................................................12
CREDIT BUREAU RISK SCORE..................................................................................12
CURRENT INTEREST..........................................................................................12
CUT-OFF DATE..............................................................................................12
CUT-OFF DATE POOL PRINCIPAL BALANCE.......................................................................12
DEBT SERVICE REDUCTION....................................................................................12
DEFICIENT VALUATION.......................................................................................12
DEFINITIVE CERTIFICATES...................................................................................13
DELAYED FIRST ADJUSTMENT DATE LOAN........................................................................13
DELETED MORTGAGE LOAN.....................................................................................13
DELINQUENCY PERCENTAGE....................................................................................13
DELINQUENT................................................................................................13
DEPOSITOR.................................................................................................13
DEPOSITORY................................................................................................13
DEPOSITORY INSTITUTION....................................................................................13
DEPOSITORY PARTICIPANT....................................................................................13
DETERMINATION DATE........................................................................................14
DIRECTLY OPERATE..........................................................................................14
DISQUALIFIED ORGANIZATION.................................................................................14
DISTRIBUTION ACCOUNT......................................................................................14
DISTRIBUTION DATE.........................................................................................14
DUE DATE..................................................................................................15
ELIGIBLE ACCOUNT..........................................................................................15
ESTATE IN REAL PROPERTY...................................................................................15
EXPENSE ADJUSTED MAXIMUM MORTGAGE RATE....................................................................15
EXPENSE FEE RATE..........................................................................................15
EXTRA PRINCIPAL DISTRIBUTION AMOUNT.......................................................................15
EXTRAORDINARY TRUST FUND EXPENSES.........................................................................15
FDIC......................................................................................................15
FHLMC.....................................................................................................15
FINAL RECOVERY DETERMINATION..............................................................................15
FITCH.....................................................................................................16
FITCH.....................................................................................................16
FNMA......................................................................................................16
GROSS MARGIN..............................................................................................16
INDEPENDENT...............................................................................................16
INDEPENDENT CONTRACTOR....................................................................................16
INDEX.....................................................................................................16
INITIAL CLASS BB NOTIONAL AMOUNT..........................................................................17
INSURANCE PROCEEDS........................................................................................17
INTEREST ACCRUAL PERIOD...................................................................................17
INTEREST CARRY FORWARD AMOUNT.............................................................................17
INTEREST DETERMINATION DATE...............................................................................17
INTEREST DISTRIBUTION AMOUNT..............................................................................17
INTEREST REMITTANCE AMOUNT................................................................................17
LATE COLLECTIONS..........................................................................................18
LATEST POSSIBLE MATURITY DATE.............................................................................18
LIBOR RATE................................................................................................18
LIQUIDATION EVENT.........................................................................................18
LIQUIDATION PROCEEDS......................................................................................18
LOAN-TO-VALUE RATIO.......................................................................................18
LONDON BUSINESS DAY.......................................................................................18
LOST NOTE AFFIDAVIT.......................................................................................18
MAXIMUM COLLATERAL BALANCE................................................................................19
MAXIMUM MORTGAGE RATE.....................................................................................19
MINIMUM MORTGAGE RATE.....................................................................................19
MONTHLY EXCESS CASH FLOW AMOUNT...........................................................................19
MONTHLY EXCESS INTEREST AMOUNT............................................................................19
MONTHLY PAYMENT...........................................................................................19
MORTGAGE..................................................................................................19
MORTGAGE FILE.............................................................................................19
MORTGAGE LOAN.............................................................................................19
MORTGAGE LOAN ORIGINATOR..................................................................................19
MORTGAGE LOAN PURCHASE AGREEMENT..........................................................................19
MORTGAGE LOAN SCHEDULE....................................................................................20
MORTGAGE NOTE.............................................................................................21
MORTGAGE POOL.............................................................................................21
MORTGAGE RATE.............................................................................................21
MORTGAGED PROPERTY........................................................................................22
MORTGAGOR.................................................................................................22
NET EXCESS SPREAD.........................................................................................22
NET LIQUIDATION PROCEEDS..................................................................................22
NET MORTGAGE RATE.........................................................................................22
NET PREPAYMENT INTEREST SHORTFALL.........................................................................22
NEW LEASE.................................................................................................22
NONRECOVERABLE ADVANCE....................................................................................22
NON-UNITED STATES PERSON..................................................................................22
OFFERED CERTIFICATES......................................................................................22
OFFICERS' CERTIFICATE.....................................................................................23
ONE-MONTH LIBOR...........................................................................................23
OPINION OF COUNSEL........................................................................................23
ORIGINAL CAPITALIZED INTEREST DEPOSIT.....................................................................24
ORIGINAL MORTGAGE LOAN....................................................................................24
ORIGINAL PRE-FUNDED AMOUNT................................................................................24
OVERCOLLATERALIZATION AMOUNT..............................................................................24
OVERCOLLATERALIZATION DEFICIENCY..........................................................................24
OVERCOLLATERALIZATION RELEASE AMOUNT......................................................................24
OVERFUNDED AMOUNT.........................................................................................24
OWNERSHIP INTEREST........................................................................................24
PASS-THROUGH MARGIN.......................................................................................24
PASS-THROUGH RATE.........................................................................................25
PERCENTAGE INTEREST.......................................................................................25
PERIODIC RATE CAP.........................................................................................25
PERMITTED INVESTMENTS.....................................................................................25
PERMITTED TRANSFEREE......................................................................................26
PERSON....................................................................................................26
POOL PRINCIPAL BALANCE....................................................................................26
PRE-FUNDED AMOUNT.........................................................................................27
PRE-FUNDING ACCOUNT.......................................................................................27
PRE-FUNDING DISTRIBUTION DATE.............................................................................27
PRE-FUNDING PERIOD........................................................................................27
PREPAYMENT ASSUMPTION.....................................................................................27
PREPAYMENT EXCESS.........................................................................................27
PREPAYMENT INTEREST SHORTFALL.............................................................................27
PRINCIPAL DISTRIBUTION AMOUNT.............................................................................27
PRINCIPAL PREPAYMENT......................................................................................27
PRINCIPAL REMITTANCE AMOUNT...............................................................................27
PURCHASE PRICE............................................................................................28
QUALIFIED SUBSTITUTE MORTGAGE LOAN........................................................................28
RATE/TERM REFINANCING.....................................................................................29
RATING AGENCY OR RATING AGENCIES..........................................................................29
REALIZED LOSS.............................................................................................29
RECORD DATE...............................................................................................30
REFERENCE BANKS...........................................................................................30
REFINANCED MORTGAGE LOAN..................................................................................31
REGULAR CERTIFICATE.......................................................................................31
REGULAR INTEREST..........................................................................................31
RELIEF ACT................................................................................................31
RELIEF ACT INTEREST SHORTFALL.............................................................................31
REMIC.....................................................................................................31
REMIC PROVISIONS..........................................................................................31
REMIC 1 REGULAR INTEREST..................................................................................31
REMIC 2 REGULAR INTEREST..................................................................................31
REMITTANCE REPORT.........................................................................................31
RENTS FROM REAL PROPERTY..................................................................................31
REO ACCOUNT...............................................................................................31
REO DISPOSITION...........................................................................................32
REO IMPUTED INTEREST......................................................................................32
REO PRINCIPAL AMORTIZATION................................................................................32
REO PROPERTY..............................................................................................32
REQUEST FOR RELEASE.......................................................................................32
REQUIRED RESERVE FUND BALANCE.............................................................................32
REQUIRED RESERVE FUND DEPOSIT.............................................................................32
RESERVE INTEREST RATE.....................................................................................33
RESIDENTIAL DWELLING......................................................................................33
RESIDUAL CERTIFICATE......................................................................................33
RESIDUAL INTEREST.........................................................................................33
RESPONSIBLE OFFICER.......................................................................................33
S&P.......................................................................................................33
SCHEDULED PRINCIPAL BALANCE...............................................................................33
SENIOR ENHANCEMENT PERCENTAGE.............................................................................34
SENIOR SPECIFIED ENHANCEMENT PERCENTAGE...................................................................34
SERVICER..................................................................................................34
SERVICER REMITTANCE DATE..................................................................................34
SERVICING ACCOUNT.........................................................................................34
SERVICING ADVANCES........................................................................................34
SERVICING FEE.............................................................................................34
SERVICING FEE RATE........................................................................................34
SERVICING OFFICER.........................................................................................34
SERVICING TERMINATION EVENT...............................................................................35
SERVICING TERMINATION TRIGGER.............................................................................35
SINGLE CERTIFICATE........................................................................................35
60+ DAY DELINQUENT LOAN...................................................................................35
STANDARD RATE.............................................................................................35
STARTUP DAY...............................................................................................35
STATED PRINCIPAL BALANCE..................................................................................36
STAYED FUNDS..............................................................................................36
STEPDOWN DATE.............................................................................................36
SUBSEQUENT MORTGAGE LOAN..................................................................................36
SUBSEQUENT MORTGAGE LOAN SCHEDULE.........................................................................36
SUBSEQUENT TRANSFER AGREEMENT.............................................................................37
SUBSEQUENT TRANSFER DATE..................................................................................37
SUBORDINATED CERTIFICATES.................................................................................37
SUBSERVICER...............................................................................................37
SUBSERVICING AGREEMENT....................................................................................37
SUBSTITUTION SHORTFALL AMOUNT.............................................................................37
TARGETED OVERCOLLATERALIZATION AMOUNT.....................................................................37
TAX RETURNS...............................................................................................37
TELERATE PAGE 3750........................................................................................37
TERMINATION PRICE.........................................................................................37
TERMINATOR................................................................................................37
TOTAL DISTRIBUTION AMOUNT.................................................................................37
TRANSFER..................................................................................................38
TRANSFEREE................................................................................................38
TRANSFEROR................................................................................................38
TRIGGER EVENT.............................................................................................38
TRUST FUND................................................................................................38
TRUSTEE...................................................................................................38
TRUSTEE'S FEE.............................................................................................38
TRUSTEE'S FEE RATE........................................................................................38
UNINSURED CAUSE...........................................................................................39
UNITED STATES PERSON......................................................................................39
UNPAID BASIS RISK SHORTFALL...............................................................................39
UNPAID REALIZED LOSS AMOUNT...............................................................................39
VALUE.....................................................................................................39
VOTING RIGHTS.............................................................................................39
WEIGHTED AVERAGE NET MORTGAGE RATE........................................................................40
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES...............................40
SECTION 2.01.CONVEYANCE OF MORTGAGE LOANS.................................................................40
SECTION 2.02.ACCEPTANCE BY TRUSTEE........................................................................42
SECTION 2.03.REPURCHASE OR SUBSTITUTION OF MORTGAGE LOANS BY THE MORTGAGE LOAN SELLER.....................44
SECTION 2.04.REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR..............................................46
SECTION 2.05.REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER....................................47
SECTION 2.06.ISSUANCE OF CERTIFICATES.....................................................................48
SECTION 2.07.SALE AND CONVEYANCE OF THE SUBSEQUENT MORTGAGE LOANS.........................................49
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND...............................................49
SECTION 3.01.SERVICER TO ACT AS SERVICER..................................................................49
SECTION 3.02.SUB-SERVICING AGREEMENTS BETWEEN SERVICER AND SUB-SERVICERS..................................51
SECTION 3.03.SUCCESSOR SUB-SERVICERS......................................................................52
SECTION 3.04.NO CONTRACTUAL RELATIONSHIP BETWEEN SUB-SERVICER, TRUSTEE OR THE CERTIFICATEHOLDERS..........52
SECTION 3.05.ASSUMPTION OR TERMINATION OF SUB-SERVICING AGREEMENT BY TRUSTEE..............................53
SECTION 3.06.[RESERVED]...................................................................................53
SECTION 3.07.COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS.................................................53
SECTION 3.08.[RESERVED]...................................................................................54
SECTION 3.09.COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR ITEMS; SERVICING ACCOUNTS.......................54
SECTION 3.10.COLLECTION ACCOUNT AND DISTRIBUTION ACCOUNT..................................................54
SECTION 3.11.WITHDRAWALS FROM THE COLLECTION ACCOUNT AND DISTRIBUTION ACCOUNT.............................57
SECTION 3.12.INVESTMENT OF FUNDS IN THE INVESTMENT ACCOUNTS...............................................58
SECTION 3.13.[INTENTIONALLY OMITTED]......................................................................59
SECTION 3.14.MAINTENANCE OF HAZARD INSURANCE AND ERRORS AND OMISSIONS AND FIDELITY COVERAGE...............59
SECTION 3.15.ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS....................................61
SECTION 3.16.REALIZATION UPON DEFAULTED MORTGAGE LOANS....................................................62
SECTION 3.17.TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES..............................................64
SECTION 3.18.SERVICING COMPENSATION.......................................................................65
SECTION 3.19.REPORTS TO THE TRUSTEE; COLLECTION ACCOUNT STATEMENTS........................................65
SECTION 3.20.STATEMENT AS TO COMPLIANCE...................................................................66
SECTION 3.21.INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.............................................66
SECTION 3.22.ACCESS TO CERTAIN DOCUMENTATION..............................................................66
SECTION 3.23.TITLE, MANAGEMENT AND DISPOSITION OF REO PROPERTY............................................67
SECTION 3.24.OBLIGATIONS OF THE SERVICER IN RESPECT OF PREPAYMENT INTEREST SHORTFALLS.....................70
SECTION 3.25.[RESERVED]...................................................................................70
SECTION 3.26.OBLIGATIONS OF THE SERVICER IN RESPECT OF MORTGAGE RATES AND MONTHLY PAYMENTS................70
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS................................................................71
SECTION 4.01.DISTRIBUTIONS................................................................................71
SECTION 4.02.STATEMENTS TO CERTIFICATEHOLDERS.............................................................75
SECTION 4.03.REMITTANCE REPORTS; ADVANCES.................................................................79
SECTION 4.04.LLOCATION OF REALIZED LOSSES.................................................................80
SECTION 4.05.COMPLIANCE WITH WITHHOLDING REQUIREMENTS.....................................................81
SECTION 4.06.THE CAPITALIZED INTEREST ACCOUNT AND THE PRE-FUNDING ACCOUNT................................
SECTION 4.07.SEC REPORTING................................................................................81
SECTION 4.08.BASIS RISK RESERVE FUND......................................................................82
ARTICLE V THE CERTIFICATES...............................................................................82
SECTION 5.01.THE CERTIFICATES.............................................................................82
SECTION 5.02.REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES........................................84
SECTION 5.03.MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES............................................89
SECTION 5.04.PERSONS DEEMED OWNERS........................................................................90
SECTION 5.05.CERTAIN AVAILABLE INFORMATION................................................................90
ARTICLE VI THE DEPOSITOR, AND THE SERVICER...............................................................90
SECTION 6.01.LIABILITY OF THE DEPOSITOR, AND THE SERVICER.................................................90
SECTION 6.02.MERGER OR CONSOLIDATION OF THE DEPOSITOR, OR THE SERVICER....................................90
SECTION 6.03.LIMITATION ON LIABILITY OF THE DEPOSITOR, THE SERVICER AND OTHERS............................91
SECTION 6.04.LIMITATION ON RESIGNATION OF THE SERVICER....................................................92
SECTION 6.05.RIGHTS OF THE DEPOSITOR AND OTHERS IN RESPECT OF THE SERVICER................................92
ARTICLE VII DEFAULT.......................................................................................93
SECTION 7.01.SERVICING TERMINATION EVENTS.................................................................93
SECTION 7.02.TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.....................................................95
SECTION 7.03.NOTIFICATION TO CERTIFICATEHOLDERS...........................................................96
SECTION 7.04.WAIVER OF SERVICING TERMINATION EVENTS.......................................................97
ARTICLE VIII CONCERNING THE TRUSTEE......................................................................97
SECTION 8.01.DUTIES OF TRUSTEE............................................................................97
SECTION 8.02.CERTAIN MATTERS AFFECTING THE TRUSTEE........................................................99
SECTION 8.03.TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS........................................101
SECTION 8.04.TRUSTEE MAY OWN CERTIFICATES.................................................................102
SECTION 8.05.TRUSTEE'S FEES AND EXPENSES..................................................................102
SECTION 8.06.ELIGIBILITY REQUIREMENTS FOR TRUSTEE.........................................................102
SECTION 8.07.RESIGNATION AND REMOVAL OF THE TRUSTEE.......................................................103
SECTION 8.08.SUCCESSOR TRUSTEE............................................................................103
SECTION 8.09.MERGER OR CONSOLIDATION OF TRUSTEE...........................................................104
SECTION 8.10.APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE................................................104
SECTION 8.11.APPOINTMENT OF OFFICE OR AGENCY..............................................................105
SECTION 8.12.REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE................................................106
ARTICLE IX [RESERVED].....................................................................................106
ARTICLE X TERMINATION.....................................................................................106
SECTION 10.01TERMINATION UPON REPURCHASE OR LIQUIDATION OF ALL MORTGAGE LOANS.............................106
SECTION 10.02ADDITIONAL TERMINATIONREQUIREMENTS...........................................................108
ARTICLE XI REMIC PROVISIONS..............................................................................109
SECTION 11.01.TAX ADMINISTRATION..........................................................................109
SECTION 11.02.PROHIBITED TRANSACTIONS AND ACTIVITIES......................................................112
SECTION 11.03.TAX INDEMNIFICATION.........................................................................113
ARTICLE XII MISCELLANEOUS PROVISIONS.....................................................................113
SECTION 12.01.AMENDMENT...................................................................................113
SECTION 12.02.RECORDATION OF AGREEMENT; COUNTERPARTS......................................................115
SECTION 12.03.LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS..................................................115
SECTION 12.04.GOVERNING LAW...............................................................................116
SECTION 12.05.NOTICES.....................................................................................116
SECTION 12.06.SEVERABILITY OF PROVISIONS..................................................................117
SECTION 12.07.NOTICE TO RATING AGENCIES...................................................................117
SECTION 12.08.ARTICLE AND SECTION REFERENCES..............................................................118
</TABLE>
TABLE OF CONTENTS
EXHIBITS
EXHIBIT A-1 FORM OF CLASS A CERTIFICATE
EXHIBIT A-2 FORM OF CLASS M-1 CERTIFICATE
EXHIBIT A-3 FORM OF CLASS M-2 CERTIFICATE
EXHIBIT A-4 FORM OF CLASS B CERTIFICATE
EXHIBIT A-5 FORM OF CLASS X CERTIFICATE
EXHIBIT A-6 FORM OF CLASS R CERTIFICATE
EXHIBIT A-7 FORM OF CLASS BB CERTIFICATE
EXHIBIT B-1 FORM OF TRUSTEE'S INITIAL CERTIFICATION
EXHIBIT B-2 FORM OF TRUSTEE FINAL CERTIFICATION
EXHIBIT C FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT D-1 REQUEST FOR RELEASE (for Trustee/Custodian)
EXHIBIT D-2 REQUEST FOR RELEASE (Mortgage Loans Paid in Full)
EXHIBIT E FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
EXHIBIT F PARAMETERS FOR SUBSEQUENT MORTGAGE LOANS
EXHIBIT G FORM OF LOST NOTE AFFIDAVIT
EXHIBIT H SUBSEQUENT TRANSFER AGREEMENT
EXHIBIT I FORM OF REMITTANCE REPORT
EXHIBIT J OFFICER'S CERTIFICATE WITH RESPECT TO PREPAYMENTS
EXHIBIT K TRUSTEE'S STATEMENT WITH RESPECT TO PREPAYMENTS
SCHEDULES
SCHEDULE 1 MORTGAGE LOAN SCHEDULE
This Pooling and Servicing Agreement, is dated and
effective as of March 1, 2000 among MERRILL LYNCH
MORTGAGE INVESTORS, INC., as Depositor, LITTON LOAN
SERVICING LP, as Servicer, and THE CHASE MANHATTAN
BANK, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund created hereunder.
As provided herein, the Trustee shall elect that the Trust
Fund be treated for federal income tax purposes as two separate real estate
mortgage investment conduits (each a "REMIC" or, in the alternative, "REMIC 1"
and "REMIC 2". The Class A, Class M-1, Class M-2 and Class B Certificates
(other than their contractual rights to receive certain payments in respect of
Basis Risk Shortfalls from the Basis Risk Reserve Fund) and the Class X
Certificates (which represent the beneficial ownership of the Class C and
Class IO Component 1, Component 2, Component 3, and Component 4 Regular
Interests) represent ownership of all of the "regular interests" in REMIC 2
and the Class R2 Interest represents the sole class of "residual interest" in
REMIC 2 for purposes of the REMIC Provisions. The Class R1 Interest represents
the sole class of "residual interest" in REMIC 1 for purposes of the REMIC
Provisions. There are also five classes of uncertificated REMIC 1 Regular
Interests issued under this Agreement (the Class T1-1, Class T1-2, Class T1-3,
Class T1-4 and Class T1-5 Interests), each of which will constitute regular
interests in REMIC 1. The REMIC 1 Regular Interests will be held as assets of
REMIC 2.
The following table irrevocably sets forth the Pass-Through
Rate, initial Class Certificate Balance and "latest possible maturity date"
for each Class of Certificates comprising the interests in the Trust Fund
created hereunder.
<TABLE>
<CAPTION>
Initial Class Certificate Latest Possible
Description Pass-Through Rate Balance(1) Maturity Date(2)
----------- ----------------- ---------- ----------------
<S> <C> <C> <C>
Class A Variable (3)% $293,481,000 March 1, 2031
Class M-1 Variable (3)% $15,492,000 March 1, 2031
Class M-2 Variable (3)% $14,631,000 March 1, 2031
Class B Variable (3)% $13,771,000 March 1, 2031
Class BB 8.00% (4) March 1, 2031
Class X N/A N/A March 1, 2031
Class R N/A N/A March 1, 2031
- ------------------------
</TABLE>
(1) Plus or minus 5%.
(2) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date occurring one year and one month
after the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the "latest possible maturity
date" for the Class A Certificates.
(3) Calculated in accordance with the definition of "Pass-Through Rate"
herein.
(4) $17,000,000 notional amount.
As of the Cut-off Date, the Mortgage Loans had an aggregate principal
balance equal to $344,259,896.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including, without limitation, in
the Preliminary Statement hereto, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article.
Unless otherwise specified, all calculations described herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months.
"Accrued Certificate Interest": With respect to each Distribution
Date and any Class of Offered Certificates, interest accrued during the
related Interest Accrual Period on the Class Certificate Balance of such Class
at the then-applicable Pass-Through Rate. Accrued Certificate Interest with
respect to each Distribution Date, as to any Offered Certificate, shall be
reduced by an amount equal to the portion allocable to such Certificate of the
aggregate amount of any Relief Act Interest Shortfall, if any, for such
Distribution Date. Such Relief Act Interest Shortfalls shall first be
allocated to the Class X Certificates and then to the other Classes in inverse
order of their priority of distributions.
"Addition Notice": Not Applicable.
"Adjustable Rate Mortgage Loan": A Mortgage Loan which provides for
the adjustment of the Mortgage Rate payable in respect thereto.
"Adjusted Overcollateralization Amount": With respect to any
Distribution Date, the amount, if any, by which (a) the Pool Principal Balance
as of the end of the related Collection Period (reduced to give effect to any
Realized Losses and Advances of principal) exceeds (b) the aggregate of the
balances of the Class A, Class M-1, Class M-2 and Class B Certificates as of
such Distribution Date (after giving effect to the distribution of principal
on such Regular Interests on such Distribution Date).
"Adjusted Overcollateralization Release Amount": With respect to any
Distribution Date, the lesser of (x) the Principal Remittance Amount for such
Distribution Date and (y) the amount, if any, by which (i) the Adjusted
Overcollateralization Amount for such date, calculated for this purpose on the
basis of the assumption that 100% of the Principal Remittance Amount for such
date is applied on such date in reduction of the principal balances of the
Class A, Class M-1, Class M-2, and Class B Certificates, exceeds (ii) the
Targeted Overcollateralization Amount for such date.
"Adjustment Date": With respect to each Adjustable Rate Mortgage
Loan, each Adjustment Date, on which the Mortgage Rate of an Adjustable Rate
Mortgage Loan is subject to adjustment pursuant to the related Mortgage Note.
The first Adjustment Date following the Cut-off Date as to each Adjustable
Rate Mortgage Loan is set forth in the Mortgage Loan Schedule.
"Advance": An advance of the aggregate of payments of principal and
interest (net of the Servicing Fee) on one or more Mortgage Loans that were
due on the Due Date in the related Collection Period and not received as of
the close of business on the related Servicer Remittance Date, required to be
made by or on behalf of the Servicer (or by the Trustee) pursuant to Section
4.03.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Loan Balance": The aggregate of the Scheduled Principal
Balances for all Mortgage Loans at the date of determination.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Applied Realized Loss Amount": has the meaning set forth in Section
4.04(b).
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to
reflect of record the sale of the Mortgage.
"Available Capped Interest": With respect to any Distribution Date,
means the positive difference, if any, between (x) the sum of the amount of
interest accrued at the Available Funds Pass-Through Rate and (y) the sum of
the amount of interest accrued at the Pass-Through Rate on each Class of
Offered Certificates.
"Available Funds Pass-Through Rate": As to any Distribution Date, the
per annum rate equal to the percentage obtained by dividing (x) the amount of
interest that accrued on the Mortgage Loans in respect of the related
Collection Period at the weighted average of the related Mortgage Rates
applicable to Monthly Payments due on such Mortgage Loans during such
Collection Period, reduced by the Expense Fee Rate, by (y) the product of (i)
the aggregate Class Certificate Balance and (ii) the actual number of days
elapsed during such Interest Accrual Period divided by 360.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"Basis Risk Reserve Fund": A fund created as part of the Trust Fund
pursuant to Section 4.08 of this Agreement but which is not an asset of any of
the REMICs.
"Basis Risk Shortfall": With respect to any Distribution Date and any
Class of Offered Certificates, the excess, if any, of the Accrued Certificate
Interest (calculated without regard to the Available Funds Pass-Through Rate
for such date but not more than the Expense Adjusted Maximum Mortgage Rate)
over the product of (a) the Available Funds Pass-Through Rate on such
Distribution Date and (b) the Certificate Balance of such Class of
Certificates. The excess of the LIBOR Rate over the Weighted Average Net
Mortgage Rate shall be treated as the obligation of the Trust pursuant to the
cap agreement, and not as an obligation of REMIC 2.
"Book-Entry Certificate": The Class A Certificates, the Class M-1
Certificates, the Class M-2 Certificates and the Class B Certificates for so
long as the Certificates of such Classes shall be registered in the name of
the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking or savings and loan institutions in the State of New York, or in
the city in which the Corporate Trust Office of the Trustee is located, is
authorized or obligated by law or executive order to be closed.
"Cash-Out Refinancing": A Refinanced Mortgage Loan the proceeds of
which were more than the lesser of (i) $1000, and (ii) 1% of the principal
balance of any existing first mortgage or subordinate mortgage being
refinanced on the related Mortgaged Property and related closing costs.
"Certificate": Any one of the Depositor's First Franklin Mortgage
Loan Asset Backed Certificates, Series 2000-FF1, Class A, Class M-1, Class
M-2, Class B, Class BB, Class X or Class R, issued under this Agreement.
"Certificate Factor": With respect to any Class of Offered
Certificates as of any Distribution Date, a fraction, expressed as a decimal
carried to six places, the numerator of which is the Class Certificate Balance
of such Class of Certificates on such Distribution Date (after giving effect
to any distributions of principal and allocations of Realized Losses, in
reduction of the Class Certificate Balance of such Class of Certificates to be
made on such Distribution Date), and the denominator of which is the initial
Class Certificate Balance of such Class of Certificates as of the Closing
Date.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to each Class of
Offered Certificates as of any date of determination, the Certificate
Principal Balance of such Class on the Distribution Date immediately prior to
such date of determination, minus all distributions allocable to principal
made thereon and Applied Realized Loss Amounts allocated thereto pursuant to
Section 4.04 hereof on such immediately prior Distribution Date (or, in the
case of any date of determination up to and including the first Distribution
Date, the initial Certificate Principal Balance of such Class, as stated on
the face thereof).
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
"disqualified organization" (as defined in Section 860E(e)(5) of the Code) or
a Non-United States Person shall not be a Holder of a Residual Certificate for
any purposes hereof. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they
may indirectly exercise such rights through the Depository and participating
members thereof, except as otherwise specified herein; provided, however, that
the Trustee shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered
in the Certificate Register.
"Class": Collectively, all of the Certificates bearing the same class
designation.
"Class A Certificate": Any one of the Class A Certificates executed
by the Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-1 and evidencing a
Regular Interest in REMIC 2 for purposes of the REMIC Provisions.
"Class A Interest": A regular interest in REMIC 2 that has an initial
principal balance of $293,481,000 as of the Cut-off Date and bears interest at
a per annum rate equal to the lesser of (i) the Class A Pass-Through Rate and
(ii) the Weighted Average Net Mortgage Rate. Ownership of the Class A Interest
is evidenced by the Class A Certificates.
"Class A Interest Carry Forward Amount": With respect to any
Distribution Date, the Interest Carry Forward Amount applicable to the Class A
Certificates.
"Class A Principal Distribution Amount": With respect to any
Distribution Date (a) prior to the Stepdown Date or with respect to which a
Trigger Event is in effect, the lesser of (i) 100% of the Principal
Distribution Amount and (ii) the Class Certificate Balance of the Class A
Certificates and (b) on or after the Stepdown Date and as long as a Trigger
Event is not in effect, the positive difference, if any, of the excess of (x)
the Class Certificate Balance of the Class A Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i)
approximately 70.5% and (ii) the Pool Principal Balance as of the last day of
the related Collection Period and (B) the Pool Principal Balance as of the
last day of the related Collection Period minus $1,721,299.48.
"Class B Applied Realized Loss Amount" means, as to the Class B
Certificates and as of any Distribution Date, the lesser of (x) the Class
Certificate Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class B Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the Applied Realized Loss Amount as of such
Distribution Date.
"Class B Certificate": Any one of the Class B Certificates executed
by the Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-4 and evidencing a
regular interest in REMIC 2 for purposes of the REMIC Provisions.
"Class B Interest": A regular interest in REMIC 2 that has an initial
principal balance of $13,771,000 as of the Cut-off Date and bears interest at
a per annum rate equal to the lesser of (i) the Class B Pass-Through Rate and
(ii) the Weighted Average Net Mortgage Rate. Ownership of the Class B Interest
is evidenced by the Class B Certificates.
"Class B Interest Carry Forward Amount": With respect to any
Distribution Date, the Interest Carry Forward Amount applicable to the Class B
Certificates.
"Class B Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and as long as a Trigger Event
is not in effect, the positive difference, if any, of the excess of (x) the
sum of (i) the Class Certificate Balance of the Class A Certificates (after
taking into account the payment of the Class A Principal Distribution Amount
on such Distribution Date), (ii) the Class Certificate Balance of the Class
M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
the payment of the Class M-2 Principal Distribution Amount on such
Distribution Date), and (iv) the Class Certificate Balance of the Class B
Certificates immediately prior to such Distribution Date over (y) the lesser
of (A) the product of (i) 96.0% and (ii) the Pool Principal Balance as of the
last day of the related Collection Period and (B) the Pool Principal Balance
as of the last day of the related Collection Period minus $1,721,299.48.
"Class B Realized Loss Amortization Amount" means, as to the Class B
Certificates and as of any Distribution Date, the lesser of (x) the Class B
Unpaid Realized Loss Amount as of such Distribution Date and (y) the excess of
(i) the Monthly Excess Cashflow Amount over (ii) the sum of the Class A
Interest Carry Forward Amount, the Class M-1 Realized Loss Amortization
Amount, the Class M-2 Realized Loss Amortization Amount, the Class M-1
Interest Carry Forward Amount, the Class M-2 Interest Carry Forward Amount and
the Class B Interest Carry Forward Amount, in each case for such Distribution
Date.
"Class B Unpaid Realized Loss Amount": With respect to any
Distribution Date, the Unpaid Realized Loss Amount applicable to the Class B
Certificates.
"Class BB Certificate": Any one of the Class BB Certificates executed
by the Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-7 and evidencing an
obligation of the Class X Certificates.
"Class BB Notional Amount": As of any date of determination, the
Initial Class BB Notional Amount minus all distributions allocable to
principal made thereon on all prior Distribution Dates.
"Class C Interest": A regular interest in REMIC 2 that has a
principal balance equal to the principal balance of the Class T1-5 Interest
and bears interest at a per annum rate equal to the Weighted Average Net
Mortgage Rate. Ownership of the Class C Interest is represented by the Class X
Certificate.
"Class C Regular Interest Realized Loss Amount" means, as to the
Class C Regular Interests and as of any Distribution Date, the excess of (x)
the Pool Balance (after taking into account the distribution of the Principal
Distribution Amount on such Distribution Date, but prior to the application of
the Class C Regular Interest Realized Loss Amount, if any, on such
Distribution Date) over (y) the sum of the principal balances in respect of
the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates,
Class B Certificates and the Class C Regular Interests as of such Distribution
Date. Recoveries of any Applied Realized Losses previously allocated to the
Class C Regular Interest will be distributed to the Class C Regular Interest
and will not result in any further reduction in principal balance to the
extent they are not required to be applied pursuant to the definitions of
Class A Realized Loss Amortization Amount, Class M-1 Realized Loss
Amortization Amount, Class M-2 Realized Loss Amortization Amount or Class B
Realized Loss Amortization Amount.
"Class Certificate Balance": As to any Class of Certificates and any
date of determination, the aggregate of the Certificate Principal Balances of
all Certificates of such Class as of such date of determination.
"Class IO Component 1": A regular interest in REMIC 2 that is
entitled to 100% of the interest accruals on the Class T1-1 Interest in excess
of the interest accruals on the Class A Regular Interest. The Class IO
Component 1 Interest shall not have a principal balance. Ownership of the
Class IO Component 1 is evidenced by the Class X Certificate.
"Class IO Component 2": A regular interest in REMIC 2 that is
entitled to 100% of the interest accruals on the Class T1-2 Interest in excess
of the interest accruals on the Class M-1 Regular Interest. The Class IO
Component 2 shall not have a principal balance. Ownership of the Class IO
Component 2 is evidenced by the Class X Certificate.
"Class IO Component 3": A regular interest in REMIC 2 that is
entitled to 100% of the interest accruals on the Class T1-3 Interest in excess
of the interest accruals on the Class M-2 Regular Interest. The Class IO
Component 3 shall not have a principal balance. Ownership of the Class IO
Component 3 is evidenced by the Class X Certificate.
"Class IO Component 4": A regular interest in REMIC 2 that is
entitled to 100% of the interest accruals on the Class T1-4 Interest in excess
of the interest accruals on the Class B Regular Interest. The Class T1-4
Interest shall not have a principal balance. Ownership of the Class IO
Component 4 is represented by the Class X Certificate.
"Class M Certificates": The Class M-1 Certificates and the Class M-2
Certificates.
"Class M-1 Applied Realized Loss Amount": With respect to the Class
M-1 Certificates and as of any Distribution Date, the lesser of (x) the Class
Certificate Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class M-1 Applied Realized Loss Amount, if any on such
Distribution Date) and (y) the excess of (i) the Applied Realized Loss Amount
as of such Distribution Date over (ii) the sum of the Class M-2 Applied
Realized Loss Amount and the Class B Applied Realized Loss Amount, in each
case as of such Distribution Date.
"Class M-1 Certificate": Any one of the Class M-1 Certificates
executed by the Trustee, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-2 and
evidencing a Regular Interest in REMIC 2 for purposes of the REMIC Provisions.
"Class M-1 Interest": A regular interest in REMIC 2 that has an
initial principal balance of $15,492,000 as of the Cut-off Date and bears
interest at a per annum rate equal to the lesser of (i) the Class M-1
Pass-Through Rate and (ii) the Weighted Average Net Mortgage Rate. Ownership
of the Class M-1 Interest is evidenced by the Class M-1 Certificates.
"Class M-1 Interest Carry Forward": With respect to any Distribution
Date, the Interest Carry Forward applicable to the Class M-1 Certificates.
"Class M-1 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the positive difference, if any, of the excess of (x) the sum of (i)
the Class Certificate Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), and (ii) the Class Certificate Balance of the Class M-1
Certificates immediately prior to such Distribution Date over (y) the lesser
of (A) the product of (i) 79.5% and (ii) the Pool Principal Balance as of the
last day of the related Collection Period and (B) the Pool Principal Balance
as of the last day of the related Collection Period minus $1,721,299.48.
"Class M-1 Realized Loss Amortization Amount": With respect to the
Class M-1 Certificates and as of any Distribution Date, the lesser of (x) the
Class M-1 Unpaid Realized Loss Amount as of such Distribution Date and (y) the
excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum of the
Class A Interest Carry Forward Amount and the Class M-1 Interest Carry Forward
Amount, in each case for such Distribution Date.
"Class M-1 Unpaid Realized Loss Amount": With respect to any
Distribution Date, the Unpaid Realized Loss Amount applicable to the Class M-1
Certificates.
"Class M-2 Applied Realized Loss Amount": With respect to the Class
M-2 Certificates and as of any Distribution Date, the lesser of (x) the Class
Certificate Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class M-2 Applied Realized Loss Amount, if any on such
Distribution Date) and (y) the excess of (i) the related Applied Realized Loss
Amount as of such Distribution Date over (ii) the Class B Applied Realized
Loss Amount as of such Distribution Date.
"Class M-2 Certificate": Any one of the Class M-2 Certificates
executed by the Trustee, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-3 and
evidencing a Regular Interest in REMIC 2 for purposes of the REMIC Provisions.
"Class M-2 Interest": A regular interest in REMIC 2 that has an
initial principal balance of $14,631,000 as of the Cut-off Date and bears
interest at a per annum rate equal to the lesser of (i) the Class M-2
Pass-Through Rate and (ii) the Weighted Average Net Mortgage Rate. Ownership
of the Class M-2 Interest is evidenced by the Class M-2 Certificates.
"Class M-2 Interest Carry Forward": With respect to any Distribution
Date, the Interest Carry Forward for the Class M-2 Certificates.
"Class M-2 Principal Distribution Amount": As of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the positive difference, if any, of the excess of (x) the sum of (i)
the Class Certificate Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on such
Distribution Date), (ii) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on such Distribution Date) and (iii) the Class Certificate
Balance of the Class M-2 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 88.0% and (ii) the Pool
Principal Balance as of the last day of the related Collection Period and (B)
the Pool Principal Balance as of the last day of the related Collection Period
minus $1,721,299.48.
"Class M-2 Realized Loss Amortization Amount": With respect to the
Class M-2 Certificates and as of any Distribution Date, the lesser of (x) the
Class M-2 Unpaid Realized Loss Amount as of such Distribution Date and (y) the
excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum of the
Class A Interest Carry Forward Amount, the Class M-1 Interest Carry Forward
Amount, the Class M-1 Realized Loss Amortization Amount and the related Class
M-2 Interest Carry Forward Amount, in each case for such Distribution Date.
"Class M-2 Unpaid Realized Loss Amount": With respect to any
Distribution Date, the Unpaid Realized Loss Amount applicable to the Class M-2
Certificates.
"Class R Certificate": The Class R Certificate executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-3 and evidencing the
ownership of the Class R1 Interest and the Class R2 Interest.
"Class R1 Interest": The uncertificated Residual Interest in REMIC 1.
"Class R2 Interest": The uncertificated Residual Interest in REMIC 2.
"Class T1-1 Interest": A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance of $293,481,000 as of the
Cut-off Date, and bears interest at the Weighted Average Net Mortgage Rate.
"Class T1-2 Interest": A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance of $15,492,000 as of the
Cut-off Date, and bears interest at the Weighted Average Net Mortgage Rate.
"Class T1-3 Interest": A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance of $14,631,000 as of the
Cut-off Date, and bears interest at the Weighted Average Net Mortgage Rate.
"Class T1-4 Interest": A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance of $13,771,000 as of the
Cut-off Date, and bears interest at the Weighted Average Net Mortgage Rate.
"Class T1-5 Interest": A regular interest in REMIC 1 held as an asset
of REMIC 2 that has an initial principal balance equal to the difference
between the (i) the Pool Principal Balance and (ii) the aggregate principal
balances of the Class T1-1 Interest, Class T1-2 Interest, Class T1-3 Interest
and Class T1-4 Interest, as of the Cut-off Date, and bears interest at the
Weighted Average Net Mortgage Rate.
"Class X Certificates": Any one of the Class X Certificates executed
by the Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-5 and evidencing a
Regular Interest in the REMIC Trust for purposes of the REMIC provisions.
"Class X Distributable Amount": With respect to any Distribution
Date, the excess of (i) the aggregate of amounts distributable on the Class IO
Component 1, Class IO Component 2, Class IO component 3, Class IO Component 4
and the Class C Interest in respect of principal and interest at their
applicable Pass through Rates for such Distribution Date, over (ii) the
aggregate of amounts distributable to the Class BB Certificateholders pursuant
to Sections 4.01(a)(vi) and 4.01(c)(x).
"Closing Date": March 20, 2000.
"Code": The Internal Revenue Code of 1986.
"Collection Account": The account or accounts created and maintained
by the Servicer pursuant to Section 3.10(a), which shall be entitled "Litton
Loan Servicing LP, as Servicer for The Chase Manhattan Bank, as Trustee, in
trust for registered holders of First Franklin Mortgage Loan Asset Backed
Certificates, Series 2000-FF1," and which must be an Eligible Account.
"Collection Period": With respect to the first Distribution Date, the
period from March 1, 2000 through the Determination Date in April 2000. With
respect to any other Distribution Date, the period from the day immediately
following the prior Determination Date through the Determination Date in the
calendar month in which such Distribution Date occurs.
"Compensating Interest": On any Distribution Date, payments made by
the Servicer in satisfaction of its obligation to offset any Prepayment
Interest Shortfall on such Distribution Date pursuant to Section 3.24.
"Corporate Trust Office": The corporate trust office of the Trustee
at which at any particular time its corporate trust business in connection
with this Agreement shall be administered, which office at the date of the
execution of this instrument is set forth in Section 12.05 hereof, or at such
other address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, and the Servicer.
"Credit Bureau Risk Score": As to any Mortgage Loan, the statistical
rating of likely future credit performance of such Mortgage Loan determined on
the basis of the methodology developed by Fair, Isaac & Company.
"Current Interest": With respect to each Class of Class A, Class M-1,
Class M-2 and Class B Certificates and any Distribution Date, the aggregate
amount of interest accrued during the related Accrual Period at the applicable
Pass-Through Rate on the Class Certificate Principal Balance of such Class
immediately prior to such Distribution Date
"Cut-off Date": With respect to each Original Mortgage Loan, the
close of business on March 1, 2000. With respect to all Qualified Substitute
Mortgage Loans, the close of business on the first day of the calendar month
in which the substitution occurs. References herein to the "Cut-off Date,"
when used with respect to more than one Mortgage Loan, shall be to the
respective Cut-off Dates for such Mortgage Loans.
"Cut-off Date Pool Principal Balance": The sum of the Stated
Principal Balances of the Mortgage Loans as of their respective Cut-off Dates.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court
of competent jurisdiction in a proceeding under the Bankruptcy Code, except
such a reduction resulting from a Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.01(b).
"Delayed First Adjustment Date Loan": Any Mortgage Loan as to which
the first Adjustment Date does not occur for 12 months, 24 months or 36 months
after the origination date of such Mortgage Loan.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced
by a Qualified Substitute Mortgage Loan.
"Delinquency Percentage": As of the last day of any Collection
Period, the percentage equivalent of a fraction, the numerator of which equals
the aggregate Stated Principal Balances of all Mortgage Loans that are 60 or
more days Delinquent, in foreclosure or converted to REO Properties as of such
last day of such Collection Period, and the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
such Collection Period.
"Delinquent": A Mortgage Loan is Delinquent if the Monthly Payment
due on a Due Date is not paid on or before the next succeeding Due Date, at
which time, such Mortgage Loan is 30 days Delinquent. If the Monthly Payment
due on a Due Date is not paid on or before the second or third succeeding Due
Date, such Mortgage Loan is 60 or 90 days Delinquent, respectively.
"Depositor": Merrill Lynch Mortgage Investors, Inc., a Delaware
corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository, for
purposes of registering those Certificates that are to be Book-Entry
Certificates, is CEDE & Co. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934, as amended.
"Depository Institution": Any depository institution or trust
company, including the Trustee, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision
and examination by federal or state banking authorities and (c) has
outstanding unsecured commercial paper or other short-term unsecured debt
obligations (or, in the case of a depository institution that is the principal
subsidiary of a holding company, such holding company has unsecured commercial
paper or other short-term unsecured debt obligations) that are rated at least
A-1 by S&P (or comparable ratings if S&P are not the Rating Agencies).
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to each Distribution Date, the
10th day of the calendar month in which such Distribution Date occurs or, if
such 10th day is not a Business Day, the Business Day immediately preceding
such 10th day.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation
of such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust Fund other than
through an Independent Contractor; provided, however, that the Trustee (or the
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
"Disqualified Organization": Any of the following: (i) the United
States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for the FHLMC, a majority of its board of directors
is not selected by such governmental unit), (ii) any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code (v) an "electing
large partnership" within the meaning of Section 775 of the Code, and (vi) any
other Person so designated by the Trustee based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Residual Certificate by such
Person may cause the Trust Fund or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Residual Certificate to such
Person. The terms "United States," "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
"Distribution Account": The trust account or accounts created and
maintained by the Trustee pursuant to Section 3.10(b) which shall be entitled
"The Chase Manhattan Bank, as Trustee, in trust for registered holders of
First Franklin Mortgage Loan Asset Backed Certificates, Series 2000-FF1,"
which must be an Eligible Account.
"Distribution Date": The 20th day of any month, or if such 20th day
is not a Business Day, the Business Day immediately following such 20th day,
commencing in April 2000.
"Due Date": With respect to each Distribution Date, the day of the
month on which the Monthly Payment is due on a Mortgage Loan during the
related Collection Period, exclusive of any days of grace.
"Eligible Account": Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the short-term unsecured debt obligations of such holding
company) are rated at least A-1 by S&P (or comparable ratings if S&P are not
the Rating Agencies) at the time any amounts are held on deposit therein, (ii)
an account or accounts the deposits in which are fully insured by the FDIC or
(iii) a trust account or accounts maintained with the trust department of a
federal or state chartered depository institution or trust company acting in
its fiduciary capacity. Eligible Accounts may bear interest.
"Estate in Real Property": A fee simple estate in a parcel of land.
"Expense Adjusted Maximum Mortgage Rate": With respect to any
Mortgage Loan, an amount equal to the Maximum Mortgage Rate thereon minus the
Expense Fee Rate.
"Expense Fee Rate": The sum of the Trustee Fee Rate and the Servicing
Fee Rate.
"Extra Principal Distribution Amount": With respect to any
Distribution Date, the lesser of (a) Monthly Excess Interest Amount for such
Distribution Date and (b) the Overcollateralization Deficiency for such date;
provided that on the first Distribution Date principal due during the period
from the Cut-off Date to the related Determination Date will be distributed,
which will reduce the amount available on such Distribution Date for
distribution as Extra Principal Distribution Amount.
"Extraordinary Trust Fund Expenses": Any amounts reimbursable to the
Trustee, or any director, officer, employee or agent of the Trustee, from the
Trust Fund pursuant to Section 8.05, and any amounts payable from the
Distribution Account in respect of taxes pursuant to Section 11.01(g)(iii).
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor
thereto.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Mortgage Loan Originator, the Depositor or the Servicer
pursuant to or as contemplated by Section 2.03, 3.16(c) or 10.01), a
determination made by the Servicer that all Insurance Proceeds, Liquidation
Proceeds and other payments or recoveries which the Servicer, in its
reasonable good faith judgment, expects to be finally recoverable in respect
thereof have been so recovered. The Servicer shall maintain records, prepared
by a Servicing Officer of the Servicer, of each Final Recovery Determination
made thereby.
"First Union": First Union National Bank or any successor thereto.
"Fitch": Fitch IBCA, Inc.
"FNMA": Fannie Mae or any successor thereto.
"Gross Margin": With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage set forth in the related Mortgage Note that is added to
the Index on each Adjustment Date in accordance with the terms of the related
Mortgage Note used to determine the Mortgage Rate for such Mortgage Loan.
"Independent": When used with respect to any specified Person, any
such Person who (a) is in fact independent of the Depositor, the Servicer and
their respective Affiliates, (b) does not have any direct financial interest
in or any material indirect financial interest in the Depositor, the Servicer
or any Affiliate thereof, and (c) is not connected with the Depositor, the
Servicer or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent
of the Depositor, the Servicer or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor, the Servicer or any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person (other than the
Servicer) that would be an "independent contractor" with respect to the REMIC
Trust within the meaning of Section 856(d)(3) of the Code if the REMIC Trust
were a real estate investment trust (except that the ownership tests set forth
in that section shall be considered to be met by any Person that owns,
directly or indirectly, 35 percent or more of any Class of Certificates), so
long as the REMIC Trust does not receive or derive any income from such Person
and provided that the relationship between such Person and the Trust Fund is
at arm's length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or (ii) any other Person (including the Servicer) if the
Trustee has received an Opinion of Counsel to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code (determined without regard to the exception applicable for
purposes of Section 860D(a) of the Code), or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Index": With respect to each Adjustable Rate Mortgage Loan and each
related Adjustment Date, the average of the interbank offered rates for
six-month United States dollar deposits in the London market as published in
The Wall Street Journal and as most recently available as of the first
Business Day of the month preceding the month of such Adjustment Date, or as
specified in the related Mortgage Note.
"Initial Class BB Notional Amount": $17,000,000.
"Insurance Proceeds": Proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property or
released to the Mortgagor in accordance with the procedures that the Servicer
would follow in servicing mortgage loans held for its own account, subject to
the terms and conditions of the related Mortgage Note and Mortgage.
"Interest Accrual Period": With respect to any Distribution Date and
the Offered Certificates, the period from the Distribution Date in the month
immediately preceding the month in which such Distribution Date occurs (or, in
the case of the first Interest Accrual Period, from the Closing Date) through
the day before such Distribution Date occurs.
"Interest Carry Forward Amount": With respect to the Offered
Certificates and any Distribution Date, the sum of (a) the excess, if any, of
the Accrued Certificate Interest calculated at the then applicable
Pass-Through Rate, over the amount in respect of interest actually distributed
on such Class on such prior Distribution Date and (b) interest on such excess
at the applicable Pass-Through Rate for the actual number of days elapsed
since such prior Distribution Date.
"Interest Determination Date": With respect to the Offered
Certificates and any Interest Accrual Period therefor, the second London
Business Day preceding the commencement of such Interest Accrual Period.
"Interest Distribution Amount": With respect to any Distribution Date
and a Class of Offered Certificates, the sum of (i) the aggregate Accrued
Certificate Interest on such Class of Certificates for such Distribution Date
and (ii) the aggregate Interest Carry Forward Amount for such Class of
Certificates for such Distribution Date.
"Interest Remittance Amount" means, as of any Determination Date, the
sum, without duplication, of (i) all interest due and collected or advanced
during the related Collection Period on the Mortgage Loans (less the Servicing
Fee, certain amounts available for reimbursement of Advances and Servicing
Advances and certain other reimbursable expenses payable pursuant to this
Agreement), (ii) all Compensating Interest paid by the Servicer on such
Determination Date, (iii) prepayment premiums and penalties and (iv) the
portion of any payment in connection with any substitution, Purchase Price or
Net Liquidation Proceeds relating to interest, provided that with respect to
the first Collection Period only the Interest Remittance Amount shall be
reduced by an amount equal to sixteen (16) days of interest at the Net
Mortgage Rate due and collected or advanced on the Mortgage Loans.
"Late Collections": With respect to any Mortgage Loan, all amounts
received subsequent to the Determination Date immediately following any
Collection Period, whether as late payments of Monthly Payments or as
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent for such Collection Period and not previously recovered.
"Latest Possible Maturity Date": The Distribution Date in March 2031.
"LIBOR Rate": With respect to the Offered Certificates and any
Distribution Date, the sum of One-Month LIBOR plus the applicable Pass-Through
Margin.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such
Mortgage Loan is removed from the Trust Fund by reason of its being purchased,
sold or replaced pursuant to or as contemplated by Section 2.03, Section
3.16(c) or Section 10.01. With respect to any REO Property, either of the
following events: (i) a Final Recovery Determination is made as to such REO
Property; or (ii) such REO Property is removed from the Trust Fund by reason
of its being purchased pursuant to Section 10.01.
"Liquidation Proceeds": The amount (other than Insurance Proceeds or
amounts received in respect of the rental of any REO Property prior to REO
Disposition) received by the Servicer in connection with (i) the taking of all
or a part of a Mortgaged Property by exercise of the power of eminent domain
or condemnation, (ii) the liquidation of a defaulted Mortgage Loan by means of
a trustee's sale, foreclosure sale or otherwise, or (iii) the repurchase,
substitution or sale of a Mortgage Loan or an REO Property pursuant to or as
contemplated by Section 2.03, Section 3.16(c), Section 3.23 or Section 10.01.
"Loan-to-Value Ratio": As of any date of determination, the fraction,
expressed as a percentage, the numerator of which is the principal balance of
the related Mortgage Loan at such date and the denominator of which is the
Value of the related Mortgaged Property.
"London Business Day": Any day on which banks in the City of London
and New York City are open and conducting transactions in United States
dollars.
"Lost Note Affidavit": With respect to any Mortgage Loan as to which
the original Mortgage Note has been permanently lost or destroyed and has not
been replaced, an affidavit from the Mortgage Loan Originator certifying that
the original Mortgage Note has been lost, misplaced or destroyed (together
with a copy of the related Mortgage Note) in the form of Exhibit G hereto.
"Maximum Collateral Balance": $344,259,896.
"Maximum Mortgage Rate": With respect to each Adjustable Rate
Mortgage Loan, the percentage set forth in the related Mortgage Note as the
maximum Mortgage Rate thereunder.
"Minimum Mortgage Rate": With respect to each Adjustable Rate
Mortgage Loan, the percentage set forth in the related Mortgage Note as the
minimum Mortgage Rate thereunder.
"Monthly Excess Cash Flow Amount": With respect to any Distribution
Date, the sum of the Monthly Excess Interest Amount and the
Overcollateralization Release Amount.
"Monthly Excess Interest Amount": With respect to any Distribution
Date, such term has the meaning set forth in paragraph Sixth of Section
4.01(a).
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and interest on such Mortgage Loan which is
payable by the related Mortgagor from time to time under the related Mortgage
Note, determined: (a) after giving effect to (i) any Deficient Valuation
and/or Debt Service Reduction with respect to such Mortgage Loan and (ii) any
reduction in the amount of interest collectible from the related Mortgagor
pursuant to the Relief Act; (b) without giving effect to any extension granted
or agreed to by the Servicer pursuant to Section 3.07; and (c) on the
assumption that all other amounts, if any, due under such Mortgage Loan are
paid when due.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on, or first priority security interest in, a Mortgaged Property
securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03(d) as from time to time held
as a part of the Trust Fund, the Mortgage Loans so held being identified in
the Mortgage Loan Schedule.
"Mortgage Loan Originator": First Franklin Financial Corporation, or
its successor in interest, in its capacity as seller under the Mortgage Loan
Purchase Agreement.
"Mortgage Loan Purchase Agreement": The agreement between the
Mortgage Loan Originator and Merrill Lynch Mortgage Capital Inc., an Affiliate
of the Depositor, regarding the transfer of the Mortgage Loans by the Mortgage
Loan Originator to Merrill Lynch Mortgage Capital Inc. in the form of Exhibit
C annexed hereto.
"Mortgage Loan Schedule": As of any date, the list of Mortgage Loans
included in the Trust Fund on such date. The Mortgage Loan Schedule shall set
forth the following information with respect to each Mortgage Loan:
1. the Mortgage Loan Originator's Mortgage Loan identifying number;
2. the Mortgagor's name;
3. the street address of the Mortgaged Property including the state
and zip code;
4. a code indicating whether the Mortgaged Property is occupied by
the Mortgagor;
5. the type of Residential Dwelling constituting the Mortgaged
Property;
6. the original term to stated maturity;
7. the Loan-to-Value Ratio at origination;
8. the Mortgage Rate in effect as of the Cut-off Date;
9. the date on which the first Monthly Payment was due on the
Mortgage Loan;
10. the stated maturity date;
11. the amount of the Monthly Payment in effect as of the Cut-off
Date;
12. the original principal balance of the Mortgage Loan;
13. the outstanding principal balance of the Mortgage Loan as of the
close of business on the Cut-off Date;
14. in the case of each Adjustable Rate Mortgage Loan, the first
Adjustment Date;
15. in the case of each Adjustable Rate Mortgage Loan, the Gross
Margin;
16. a code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, Rate/Term Refinancing, Cash-Out Refinancing);
17. a code indicating the documentation style program;
18. the risk grade or Credit Bureau Risk Score; and
19. a code indicating whether the Mortgage Loan has a Prepayment
Premium, and, if so, the term of such Prepayment Premium.
The Mortgage Loan Schedule shall set forth the following information,
as of the Cut-off Date with respect to the Mortgage Loans in the aggregate:
(1) the number of Mortgage Loans; (2) the current principal balance of the
Mortgage Loans; (3) the weighted average Mortgage Rate of the Mortgage Loans;
and (4) the weighted average maturity of the Mortgage Loans. The Mortgage Loan
Schedule shall be amended from time to time by the Depositor in accordance
with the provisions of this Agreement. With respect to any Qualified
Substitute Mortgage Loan, Cut-off Date shall refer to the related Cut-off Date
for such Mortgage Loan, determined in accordance with the definition of
Cut-off Date herein.
"Mortgage Note": The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on Schedule 1
from time to time, and any REO Properties acquired in respect thereof.
"Mortgage Rate": With respect to each Mortgage Loan, the annual rate
at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note, which rate (A) as
of any date of determination until the first Adjustment Date following the
Cut-off Date shall be the rate set forth in the Mortgage Loan Schedule as the
Mortgage Rate in effect immediately following the Cut-off Date and (B) as of
any date of determination thereafter shall be the rate as adjusted on the most
recent Adjustment Date, to equal the sum, rounded to the nearest 0.125% as
provided in the Mortgage Note, of the Index, as most recently available as of
a date prior to the Adjustment Date as set forth in the related Mortgage Note,
plus the related Gross Margin; provided that the Mortgage Rate on such
Mortgage Loan on any Adjustment Date shall never be more than the lesser of
(i) the sum of the Mortgage Rate in effect immediately prior to the Adjustment
Date plus the related Periodic Rate Cap, if any, and (ii) the related Maximum
Mortgage Rate, and shall never be less than the greater of (i) the Mortgage
Rate in effect immediately prior to the Adjustment Date less the Periodic Rate
Cap, if any, and (ii) the related Minimum Mortgage Rate. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the annual rate determined in accordance with the immediately preceding
sentence as of the date such Mortgage Loan became an REO Property.
"Mortgaged Property": The underlying property securing a Mortgage
Loan, including any REO Property, consisting of an Estate in Real Property
improved by a Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
"Net Excess Spread": With respect to any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is equal to the
amount, if any, by which (a) the product of (i) the Aggregate Loan Balance as
of the end of the related Collection Period and (ii) the Weighted Average Net
Mortgage Rates exceeds (b) the Interest Distribution Amount for such
Distribution Date, and the denominator of which is the product of (x) the
Aggregate Loan Balance and (y) the actual number of days in the related
Accrual Period divided by 360.
"Net Liquidation Proceeds": With respect to any Mortgage Loan, the
related Liquidation Proceeds net of unreimbursed expenses incurred in
connection with liquidation or foreclosure and unreimbursed Advances and
Servicing Advances, if any, received and retained in connection with the
liquidation of such Mortgage Loan.
"Net Mortgage Rate": With respect to any Mortgage Loan (or the
related REO Property), as of any date of determination, a per annum rate of
interest equal to the then applicable Mortgage Rate for such Mortgage Loan
minus the Expense Fee Rate.
"Net Prepayment Interest Shortfall": With respect to any Distribution
Date, the excess, if any, of any Prepayment Interest Shortfalls for such date
over the sum of any amounts paid by the Servicer with respect to such
shortfalls pursuant to this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the
Trust Fund, including any lease renewed or extended on behalf of the Trust
Fund if the Trust Fund has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Advance or Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property
that, in the good faith business judgment of the Servicer, will not or, in the
case of a proposed Advance or Servicing Advance, would not be ultimately
recoverable from related late payments, Insurance Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
"Non-United States Person": Any Person other than a United States
Person.
"Offered Certificates": The Class A Certificates, the Class M
Certificates and the Class B Certificates.
"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a vice president
(however denominated), and by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of the Servicer, the Mortgage
Loan Originator, or the Depositor, as applicable.
"One-Month LIBOR": With respect to each Interest Accrual Period, the
rate determined by the Trustee on the related Interest Determination Date on
the basis of the offered rates of the Reference Banks for one-month United
States dollar deposits, as such rates appear on the Telerate Screen 3750, as
of 11:00 a.m. (London time) on such Interest Determination Date. On each
Interest DeterminationDate, One-Month LIBOR for the related Interest Accrual
Period will be established by the Trustee as follows:
(i) If on such Interest Determination Date two or more
Reference Banks provide such offered quotations, One-Month LIBOR for
the related Accrual Period shall be the arithmetic mean of such
offered quotations (rounded upwards if necessary to the nearest whole
multiple of 1/16 of 1%; and
(ii) If on such Interest Determination Date fewer than two
Reference Banks provide such offered quotations, One-Month LIBOR for
the related Interest Accrual Period shall be the higher of (i)
One-Month LIBOR as determined on the previous Interest Determination
Date and (ii) the Reserve Interest Rate.
If the Trustee is unable to determine One-Month LIBOR for an Interest
Accrual Period, the rate for such Interest Accrual Period shall be One-Month
LIBOR as determined for the previous Interest Accrual Period. Notwithstanding
the foregoing, however, One-Month LIBOR for an Accrual Period shall not be
based on One-Month LIBOR for the previous Interest Accrual Period for three
consecutive Interest Accrual Periods. If, under the priorities described
above, One-Month LIBOR for an Interest Accrual Period would be based on
One-Month LIBOR for the previous Interest Accrual Period for the second
consecutive Interest Accrual Period, the Depositor shall select a comparable
alternative index (over which the Trustee has no control) used for determining
one-month Eurodollar lending rates that is calculated and published (or
otherwise made available) by an independent third party; provided, however,
if, under the priorities described above, LIBOR for a Distribution Date would
be based on LIBOR for the previous Distribution Date for the third consecutive
Distribution Date, the Depositor shall select an alternative comparable index
(over which the Trustee has no control), used for determining one-month
Eurodollar lending rates that is calculated and published (or otherwise made
available) by an independent party.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, or the Servicer acceptable
to the Trustee, except that any opinion of counsel relating to (a) the
qualification of the Trust Fund as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
"Original Capitalized Interest Deposit": Not Applicable.
"Original Mortgage Loan": Any of the Mortgage Loans included in the
Trust Fund as of the Closing Date.
"Original Pre-Funded Amount": Not Applicable.
"Overcollateralization Amount": As of any Distribution Date, the
excess, if any, of (x) the Pool Principal Balance as of the last day of the
immediately preceding Collection Period over (y) the aggregate Class
Certificate Balance of the Offered Certificates (after taking into account all
distributions of principal on such Distribution Date).
"Overcollateralization Deficiency": As of any Distribution Date, the
excess, if any, of (x) the Targeted Overcollateralization Amount for such
Distribution Date over (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after taking into account the
reduction on such Distribution Date of the Class Certificate Balances of the
Offered Certificates resulting from the distribution of the Principal
Remittance Amount (but not the Extra Principal Distribution Amount) on such
Distribution Date, but prior to taking into account any Applied Realized Loss
Amounts on such Distribution Date.
"Overcollateralization Release Amount": With respect to any
Distribution Date after the Stepdown Date on which a Trigger Event is not in
effect, the lesser of (x) the Principal Remittance Amount for such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date, assuming that 100% of the Principal
Remittance Amount is applied as a principal payment on the Offered
Certificates on such Distribution Date over (ii) the Targeted
Overcollateralization Amount for such Distribution Date.
"Overfunded Amount": Not Applicable.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
"Pass-Through Margin": For each Class of Offered Certificates, as set
forth below; provided, however, that for each Interest Accrual Period
beginning after the Distribution Date on which the aggregate Stated Principal
Balance (as defined herein) of the Mortgage Loans is 10% or less of the Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date (the "Cut-off
Date Pool Principal Balance"), each such Pass-Through Margin will be doubled
for the Class A Certificates and increased by 50% for the Subordinated
Certificates:
Class Pass-Through Margin
----- -------------------
A-1 0.30%
M-1 0.55%
M-2 1.00%
B 2.00%
"Pass-Through Rate": With respect to the Class A, M-1, M-2 and B
Certificates and any Distribution Date, a rate per annum equal to the lesser
of (i) the LIBOR Rate, and (ii) the Available Funds Pass-Through Rate. With
respect to the Class BB Certificate, 8.00% per annum, and with respect to the
Class C Regular Interests, the Weighted Average Net Mortgage Rate. All
calculations of interest for purposes of the Pass-Through Rate shall be based
on a 360-day year and the actual number of days in the applicable Interest
Accrual Period, provided, that all calculations of interest for purposes of
the Pass-Through Rate for the Class BB Certificate shall be based on a 360-day
year of twelve 30-day months.
"Percentage Interest": With respect to each Class of Certificates,
the undivided percentage ownership in such Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the initial
Certificate Principal Balance represented by such Certificate and the
denominator of which is the initial Class Certificate Balance of such Class.
The Class A Certificates, Class M-1 Certificates, Class M-2 Certificates and
Class B Certificates are issuable only in minimum Percentage Interests
corresponding to minimum initial Certificate Principal Balances of $100,000
and increments of $1,000 in excess thereof. The Class BB Certificates are
issuable only in minimum Percentage Interests corresponding to minimum initial
Certificate Principal Balances of $1,000,000 and increments of $1,000 in
excess thereof. With respect to any Class R or Class X Certificate, the
undivided percentage ownership in such Class evidenced by such Certificate, as
set forth on the face of such Class R or Class X Certificate. The Class R and
Class X Certificates are issuable only in minimum Percentage Interests of 25%.
"Periodic Rate Cap": With respect to each Adjustable Rate Mortgage
Loan and any Adjustment Date therefor, the fixed percentage set forth in the
related Mortgage Note, which is the maximum amount by which the Mortgage Rate
for such Mortgage Loan may increase or decrease (without regard to the Maximum
Mortgage Rate or the Minimum Mortgage Rate) on such Adjustment Date from the
Mortgage Rate in effect immediately prior to such Adjustment Date.
"Permitted Investments": Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Depositor, the Servicer, the Trustee or any of their
respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed
as to timely payment of principal and interest by, the United States
or any agency or instrumentality thereof, provided such obligations
are backed by the full faith and credit of the United States,
provided, however, that any obligation of, or guaranteed by, FHLMC or
FNMA, other than a senior debt or a mortgage participation or
pass-through certificate guaranteed by FHLMC or FNMA shall be a
Permitted Investment.
(ii) demand and time deposits in, certificates of deposit
of, or bankers' acceptances issued by, any Depository Institution;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the
United States of America or any State thereof and that are rated by
each Rating Agency in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date of
acquisition thereof) that is rated by each Rating Agency in its
highest short-term unsecured debt rating available at the time of
such investment;
(vi) units of money market funds that have been rated "AAA"
by S&P, including any such funds for which the Trustee or any
Affiliate thereof receives compensation with respect to such
investment; and
(viii) if previously confirmed in writing to the Trustee,
any other demand, money market or time deposit, or any other
obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing securities
that have been rated "AAA" by S&P;
provided that no instrument described hereunder shall evidence either the
right to receive (a) only interest with respect to the obligations underlying
such instrument or (b) both principal and interest payments derived from
obligations underlying such instrument and the interest and principal payments
with respect to such instrument provide a yield to maturity at par greater
than 120% of the yield to maturity at par of the underlying obligations.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Pool Principal Balance": As of any date of determination, the sum of
the Stated Principal Balances of all of the outstanding Mortgage Loans.
"Pre-Funded Amount": Not Applicable.
"Pre-Funding Account": Not Applicable.
"Pre-Funding Distribution Date": Not Applicable.
"Pre-Funding Period": Not Applicable.
"Prepayment Assumption": A prepayment rate of 25% CPR. The Prepayment
Assumption is used solely for determining the accrual of original issue
discount on the Certificates for federal income tax purposes. A CPR (or
Constant Prepayment Rate) represents an annualized constant assumed rate of
prepayment each month of a pool of mortgage loans relative to its outstanding
principal balance for the life of such pool.
"Prepayment Excess": As to any Principal Prepayment received by the
Servicer from the first day of any calendar month, commencing in March 2000,
through the Determination Date in such calendar month, all amounts paid by the
related Mortgagor in respect of interest on such Principal Prepayment. All
Prepayment Interest Excess shall be paid to the Servicer as additional
servicing compensation.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was the subject of a Principal Prepayment in
full or in part that was received and applied by the Servicer to reduce the
outstanding principal balance of such loan, an amount equal to the interest
shortfalls attributable to such Principal Prepayments. The obligations of the
Servicer in respect of any Prepayment Interest Shortfall are set forth in
Section 3.24.
"Prepayment Premium": With respect to any Mortgage Loan, the
penalities or premiums, if any, due in connection with a prepayment of such
Mortgage Loan in accordance with the terms thereof.
"Principal Distribution Amount": With respect to any Distribution
Date, the sum of (i) the Principal Remittance Amount (minus, for Distribution
Dates occurring on and after the Stepdown Date and for which a Trigger Event
is not in effect, the Overcollateralization Release Amount, if any) and (ii)
the Extra Principal Distribution Amount, if any.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing the
full amount of scheduled interest due on any Due Date in any month or months
subsequent to the month of prepayment.
"Principal Remittance Amount": With respect to any Distribution Date,
the amount equal to the sum (less certain amounts available for reimbursement
of Advances and Servicing Advances and certain other reimbursable expenses
payable pursuant to this Agreement) of the following amounts (without
duplication) with respect to the immediately preceding Collection Period: (i)
each payment of principal on a Mortgage Loan received by the Servicer during
such Collection Period, including all full and partial principal prepayments
(excluding Prepayment Premiums) and any Advances with respect thereto, (ii)
the Net Liquidation Proceeds allocable to principal actually collected by the
Servicer during the related Collection Period, (iii) the portion of the
Purchase Price allocable to principal of all Mortgage Loans repurchased
pursuant to Section 2.03(a) with respect to such Collection Period and (iv)
any Substitution Shortfall Amount received on or prior to the previous
Determination Date and not yet distributed.
"Purchase Price": With respect to any Mortgage Loan or REO Property
to be purchased pursuant to or as contemplated by Section 2.03, 3.16(c) or
10.01, and as confirmed by certificate signed by a Servicing Officer from the
Servicer to the Trustee, an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof as of the date of purchase (or such other price as
provided in Section 10.01), (ii) in the case of (x) a Mortgage Loan, accrued
interest on such Stated Principal Balance at the applicable Mortgage Rate in
effect from time to time from the Due Date as to which interest was last
covered by a payment by the Mortgagor or an advance by the Servicer, which
payment or advance had as of the date of purchase been distributed pursuant to
Section 4.01, through the end of the calendar month in which the purchase is
to be effected, and (y) an REO Property, the sum of (1) accrued interest on
such Stated Principal Balance at the applicable Mortgage Rate in effect from
time to time from the Due Date as to which interest was last covered by a
payment by the Mortgagor or an advance by the Servicer through the end of the
calendar month immediately preceding the calendar month in which such REO
Property was acquired, plus (2) REO Imputed Interest for such REO Property for
each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such
purchase is to be effected, net of the total of all net rental income,
Insurance Proceeds, Liquidation Proceeds and Advances that as of the date of
purchase had been distributed as or to cover REO Imputed Interest pursuant to
Section 4.01, (iii) any unreimbursed Servicing Advances and Advances and any
unpaid Servicing Fees and Special Servicing Fees allocable to such Mortgage
Loan or REO Property, (iv) any amounts previously withdrawn from the
Collection Account in respect of such Mortgage Loan or REO Property pursuant
to Sections 3.11(ix) and 3.16(b), and (v) in the case of a Mortgage Loan
required to be purchased pursuant to Section 2.03, expenses reasonably
incurred or to be incurred by the Servicer or the Trustee in respect of the
breach or defect giving rise to the purchase obligation.
"Qualified Substitute Mortgage Loan": A mortgage loan substituted for
a Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on
the date of such substitution, (i) have a Stated Principal Balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the outstanding principal
balance of the Deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs, (ii) have a Mortgage Rate not less than
(and not more than one percentage point in excess of) the Mortgage Rate of the
Deleted Mortgage Loan, (iii) have a Maximum Mortgage Rate not less than the
Maximum Mortgage Rate on the Deleted Mortgage Loan, (iv) have a Minimum
Mortgage Rate not less than the Minimum Mortgage Rate of the Deleted Mortgage
Loan, (v) have a Gross Margin equal to the Gross Margin of the Deleted
Mortgage Loan, (vi) have a next Adjustment Date not more than two months later
than the next Adjustment Date on the Deleted Mortgage Loan, (vii) have a
remaining term to maturity not greater than (and not more than one year less
than) that of the Deleted Mortgage Loan, (viii) have the same Due Date as the
Due Date on the Deleted Mortgage Loan, (ix) have a Loan-to-Value Ratio as of
the date of substitution equal to or lower than the Loan-to-Value Ratio of the
Deleted Mortgage Loan as of such date, (x) have a risk grading or Credit
Bureau Risk Score determined by the Mortgage Loan Originator, at least equal
to the risk grading assigned on the Deleted Mortgage Loan, (xi) is a
"qualified mortgage" as defined in the REMIC Provisions and (xii) conform to
each representation and warranty set forth in Section 6 of the Mortgage Loan
Purchase Agreement applicable to the Deleted Mortgage Loan. In the event that
one or more mortgage loans are substituted for one or more Deleted Mortgage
Loans, the amounts described in clause (i) hereof shall be determined on the
basis of aggregate principal balances, the Mortgage Rates described in clause
(ii) hereof shall be determined on the basis of weighted average Mortgage
Rates, the risk gradings described in clause (x) hereof shall be satisfied as
to each such mortgage loan, the terms described in clause (vii) hereof shall
be determined on the basis of weighted average remaining term to maturity, the
Loan-to-Value Ratios described in clause (ix) hereof shall be satisfied as to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (xii) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be.
"Rate/Term Refinancing": A Refinanced Mortgage Loan, the proceeds of
which are not more than the lower of (i) $1000, and (ii) 1% of the existing
first mortgage loan and any subordinate mortgage loan on the related Mortgaged
Property and related closing costs, and were used exclusively (except for up
to the lower of (i) $1000, and (ii) 1%) to satisfy the then existing first
mortgage loan and any subordinate mortgage loan of the Mortgagor on the
related Mortgaged Property and to pay related closing costs.
"Rating Agency or Rating Agencies": S&P and Fitch or their
successors. If such agencies or their successors are no longer in existence,
"Rating Agencies" shall be such nationally recognized statistical rating
organizations, or other comparable Persons, designated by the Depositor,
notice of which designation shall be given to the Trustee and the Servicer.
"Realized Loss": With respect to each Mortgage Loan as to which a
Final Recovery Determination has been made an amount (not less than zero)
equal to (i) the unpaid principal balance of such Mortgage Loan as of the
commencement of the calendar month in which the Final Recovery Determination
was made, plus (ii) accrued interest from the Due Date as to which interest
was last paid by the Mortgagor through the end of the calendar month in which
such Final Recovery Determination was made, calculated in the case of each
calendar month during such period (A) at an annual rate equal to the annual
rate at which interest was then accruing on such Mortgage Loan and (B) on a
principal amount equal to the Stated Principal Balance of such Mortgage Loan
as of the close of business on the Distribution Date during such calendar
month, plus (iii) any amounts previously withdrawn from the Collection Account
in respect of such Mortgage Loan pursuant to Sections 3.11(ix) and 3.16(b),
minus (iv) the proceeds, if any, received in respect of such Mortgage Loan
during the calendar month in which such Final Recovery Determination was made,
net of amounts that are payable therefrom to the Servicer with respect to such
Mortgage Loan pursuant to clause (iii) of Section 3.11.
With respect to any REO Property as to which a Final Recovery
Determination has been made an amount (not less than zero) equal to (i) the
unpaid principal balance of the related Mortgage Loan as of the date of
acquisition of such REO Property on behalf of the Trust Fund, plus (ii)
accrued interest from the Due Date as to which interest was last paid by the
Mortgagor in respect of the related Mortgage Loan through the end of the
calendar month immediately preceding the calendar month in which such REO
Property was acquired, calculated in the case of each calendar month during
such period (A) at an annual rate equal to the annual rate at which interest
was then accruing on the related Mortgage Loan and (B) on a principal amount
equal to the Stated Principal Balance of the related Mortgage Loan as of the
close of business on the Distribution Date during such calendar month, plus
(iii) REO Imputed Interest for such REO Property for each calendar month
commencing with the calendar month in which such REO Property was acquired and
ending with the calendar month in which such Final Recovery Determination was
made, plus (iv) any amounts previously withdrawn from the Collection Account
in respect of the related Mortgage Loan pursuant to Sections 3.11(ix) and
3.16(b), minus (v) the aggregate of all Advances and Servicing Advances in
respect of such REO Property or the related Mortgage Loan for which the
Servicer (or Trustee) has been or, in connection with such Final Recovery
Determination, will be reimbursed pursuant to Section 3.23 out of rental
income, Insurance Proceeds and Liquidation Proceeds received in respect of
such REO Property, minus (vi) the total of all net rental income, Insurance
Proceeds and Liquidation Proceeds received in respect of such REO Property
that has been, or in connection with such Final Recovery Determination, will
be transferred to the Distribution Account pursuant to Section 3.23.
With respect to each Mortgage Loan which has become the subject of a
Deficient Valuation, the difference between the principal balance of the
Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation.
With respect to each Mortgage Loan which has become the subject of a
Debt Service Reduction, the portion, if any, of the reduction in each affected
Monthly Payment attributable to a reduction in the Mortgage Rate imposed by a
court of competent jurisdiction. Each such Realized Loss shall be deemed to
have been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Distribution Date, the close of
business on the Business Day immediately such Distribution Date (or, if
Definitive Certificates are issued, the close of business on the last Business
Day of the month preceding the month in which such Distribution Date occurs).
"Reference Banks": Such leading banks selected by the Depositor and
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London, (ii)
whose quotations appear on the Telerate Page 3750 on the Interest
Determination Date in question, (iii) which have been designated as such by
the Depositor and (iv) which are not controlling, controlled by, or under
common control with, the Depositor or the Mortgage Loan Originator.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
"Regular Certificate": Any of the Class A Certificates, the Class M
Certificates, the Class B Certificates and the Class X Certificates.
"Regular Interest": A "regular interest" in a REMIC within the
meaning of Section 860G(a)(1) of the Code.
"Relief Act": The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
"Relief Act Interest Shortfall": With respect to any Distribution
Date and any Mortgage Loan, any reduction in the amount of interest
collectible on such Mortgage Loan for the most recently ended calendar month
as a result of the application of the Relief Act.
"REMIC": Each pool of assets in the Trust Fund designated as a REMIC
pursuant to Section 11.01(a) hereof.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A-860G
of the Code, and related provisions, and proposed, temporary and final
regulations and published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time.
"REMIC 1 Regular Interest": Any of the Class T1-1, Class T1-2, Class
T1-3, Class T1-4 and Class T1-5 Interests.
"REMIC 2 Regular Interest": Any of the Class A, Class M-1, Class M-2,
Class B, Class C Regular Interests, Class IO Component 1, Class IO Component
2, Class IO Component 3, and Class IO Component 4.
"Remittance Report": A report substantially in the form of Exhibit I,
with such additions, deletions and modifications as agreed to by the Trustee
and the Servicer.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code as being
included in the term "rents from real property."
"REO Account": The account or accounts maintained by the Servicer in
respect of an REO Property pursuant to Section 3.23.
"REO Disposition": The sale or other disposition of an REO Property
on behalf of the Trust Fund.
"REO Imputed Interest": As to any REO Property, for any calendar
month during which such REO Property was at any time part of the Trust Fund,
one month's interest at the applicable Net Mortgage Rate on the Stated
Principal Balance of such REO Property (or, in the case of the first such
calendar month, of the related Mortgage Loan if appropriate) as of the close
of business on the Distribution Date in such calendar month.
"REO Principal Amortization": With respect to any REO Property, for
any calendar month, the excess, if any, of (a) the aggregate of all amounts
received in respect of such REO Property during such calendar month, whether
in the form of rental income, sale proceeds (including, without limitation,
that portion of the Termination Price paid in connection with a purchase of
all of the Mortgage Loans and REO Properties pursuant to Section 10.01 that is
allocable to such REO Property) or otherwise, net of any portion of such
amounts (i) payable pursuant to Section 3.23(c) in respect of the proper
operation, management and maintenance of such REO Property or (ii) payable or
reimbursable to the Servicer pursuant to Section 3.23(d) for unpaid Servicing
Fees in respect of the related Mortgage Loan and unreimbursed Servicing
Advances and Advances in respect of such REO Property or the related Mortgage
Loan, over (b) the REO Imputed Interest in respect of such REO Property for
such calendar month.
"REO Property": A Mortgaged Property acquired by the Servicer on
behalf of the Trust Fund through foreclosure or deed-in-lieu of foreclosure,
as described in Section 3.23.
"Request for Release": A release signed by a Servicing Officer, in
the form of Exhibit D-1 or Exhibit D-2 attached hereto.
"Required Reserve Fund Balance": $5,000.
"Required Reserve Fund Deposit": With respect to any Distribution
Date occurring between the Closing Date and the Distribution Date on which the
amount on deposit in the Basis Risk Reserve Fund first equals the Required
Reserve Fund Balance, the amount, if any, by which (i) the Required Reserve
Fund Balance exceeds (ii) the amount on deposit in the Basis Risk Reserve Fund
immediately prior to such date. With respect to any Distribution Date on which
the Net Excess Spread is less than 0.25%, the amount, if any by which (a) the
product of [0.50]% and the Aggregate Loan Balance for such date exceeds (b)
the amount on deposit in the Basis Risk Reserve Fund immediately prior to such
date. With respect to any Distribution Date on which the Net Excess Spread is
equal to or greater than 0.25%, the amount, if any, by which (i) $5,000
exceeds (ii) the amount on deposit in the Basis Risk Reserve Fund immediately
prior to such date.
"Reserve Interest Rate": With respect to any Interest Determination
Date, the rate per annum that the Trustee determines to be either (i) the
arithmetic mean (rounded upwards if necessary to the nearest whole multiple of
0.001%) of the one-month U.S. dollar lending rates which New York City banks
selected by the Depositor are quoting on the relevant Interest Determination
Date to the principal London offices of leading banks in the London interbank
market or (ii) in the event that the Trustee can determine no such arithmetic
mean, the lowest one-month U.S. dollar lending rate which New York City banks
selected by the Depositor are quoting on such Interest Determination Date to
leading European banks.
"Residential Dwelling": Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project, (iv) a detached one-family
dwelling in a planned unit development, or (v) manufactured home treated as
real property under local law none of which is a co-operative or mobile home
(as defined in 42 United States Code, Section 5402(6)).
"Residual Certificate": The Class R Certificates.
"Residual Interest": The sole class of "residual interests" in a
REMIC within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the structured finance services department (or any
successor thereto), including any Vice President, Assistant Vice President,
Trust Officer, any Assistant Secretary, any trust officer or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and having direct responsibility for the
administration of this Agreement.
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or its successor in interest.
"Scheduled Principal Balance": With respect to (i) any Mortgage Loan
as of any Distribution Date, the principal balance of such Mortgage Loan at
the close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or before
the Due Date in the related Collection Period, whether or not received from
the Mortgagor or advanced by the Servicer, and all amounts allocable to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the related Prepayment
Period) and (ii) any REO Property as of any Distribution Date, the Scheduled
Principal Balance of the related Mortgage Loan on the Due Date immediately
preceding the date of acquisition of such REO Property by or on behalf of the
Trustee (reduced by any amount applied as a reduction of principal on the
Mortgage Loan). With respect to any Mortgage Loan and the Cut-off Date, as
specified in the Mortgage Loan Schedule.
"Senior Enhancement Percentage": With respect to any Distribution
Date is the percentage obtained by dividing (x) the sum of (i) the aggregate
Class Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralization Amount, in each case after taking into account the
distribution of the Principal Distribution Amount on such Distribution Date by
(y) the Pool Principal Balance as of the last day of the related Collection
Period.
"Senior Specified Enhancement Percentage": On any date of
determination thereof means 29.5%.
"Servicer": Litton Loan Servicing LP, or any successor servicer
appointed as herein provided, in its capacity as Servicer hereunder.
"Servicer Remittance Date": With respect to any Distribution Date,
5:00 p.m. New York time on the Business Day prior to such Distribution Date.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.09.
"Servicing Advances": The reasonable "out-of-pocket" costs and
expenses incurred by the Servicer in connection with a default, delinquency or
other unanticipated event by the Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures, in respect of a particular
Mortgage Loan, (iii) the management (including reasonable fees in connection
therewith) and liquidation of any REO Property, and (iv) the performance of
its obligations under Sections 3.01, 3.09, 3.14, 3.16 and 3.23. The Servicer
shall not be required to make any Servicing Advance in respect of a Mortgage
Loan or REO Property that, in the good faith business judgment of the
Servicer, would not be ultimately recoverable from related Insurance Proceeds
or Liquidation Proceeds on such Mortgage Loan or REO Property as provided
herein.
"Servicing Fee": With respect to each Mortgage Loan (or REO Property)
and for any calendar month, an amount equal to one month's interest (or in the
event of any payment of interest which accompanies a Principal Prepayment in
full made by the Mortgagor during such calendar month, interest for the number
of days covered by such payment of interest) at the Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan (or REO Property) as of the
preceding Distribution Date (or in the case of the initial Distribution Date,
as of the Cut-off Date).
"Servicing Fee Rate": 0.50% per annum.
"Servicing Officer": Any officer of the Servicer involved in, or
responsible for, the administration and servicing of Mortgage Loans, whose
name and specimen signature appear on a list of servicing officers furnished
by the Servicer to the Trustee and the Depositor on the Closing Date, as such
list may from time to time be amended.
"Servicing Termination Event": One or more of the events described in
Section 7.01(i)-(vii).
"Servicing Termination Trigger": [A Servicing Termination Trigger has
occurred (i) with respect to a Distribution Date occurring between the Cut-off
Date and the fifth anniversary of the Cut-off Date if on such Distribution
Date (X) the sum of (a) the product of (1) the percentage obtained by dividing
the balance of 30 to 59 day Delinquent Mortgage Loans by the Pool Principal
Balance, (2) 25% and (3) 41.16%; plus (b) the product of (1) the percentage
obtained by dividing the balance of 60 to 89 day Delinquent Mortgage Loans by
the Pool Principal Balance, (2) 50% and (3) 41.16%; plus (c) the product of
(1) the percentage obtained by dividing the balance of 90 day or more
Delinquent Mortgage Loans by the Pool Principal Balance and (2) 41.16%; plus
(d) the percentage obtained by dividing the sum of Realized Losses as of such
Distribution Date by the aggregate initial Pool Principal Balance on the
Cut-Off Date, in each case as of the last day of the calendar month preceding
such Distribution Date, exceeds (Y) 7.75% and (ii) with respect to a
Distribution Date occurring after the fifth anniversary of the Cut-Off Date
and on or before the tenth anniversary of the Cut-Off Date if on such
Distribution Date the sum set forth in (X) above, in each case as of the last
day of the calendar month preceding such Distribution Date, exceeds 11.625%.]
"Single Certificate": With respect to any Class of Offered
Certificates, a hypothetical Certificate of such Class evidencing a Percentage
Interest for such Class corresponding to an initial Certificate Principal
Balance of $1,000. With respect to the Class X Certificates or the Residual
Certificates, a hypothetical Certificate of such Class evidencing a 100%
Percentage Interest in such Class.
"60+ Day Delinquent Loan": With respect to any Determination Date,
all REO Properties, each Mortgage Loan with respect to which any portion of a
Monthly Payment is, as of the last day of the prior Collection Period, two
months or more past due (without giving effect to any grace period), each
Mortgage Loan in foreclosure and each Mortgage Loan for which the Mortgagor
has filed for bankruptcy.
"Special Servicer Fee": With respect to each Mortgage Loan Delinquent
more than 90 days, $125 per month, which fee shall be payable until the
earlier to occur of (i) 18 consecutive months of such payment, and (ii) the
Delinquency status of such Mortgage Loan has been reduced to 90 days or less.
"Standard Rate": With respect to any Distribution Date, the rate at
which interest accrues on the Class B Certificates subject to the Weighted
Average Net Mortgage Rate, in each case during the related Interest Accrual
Period.
"Startup Day": The day designated as such pursuant to Section
11.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan: (a) as
of any date of determination up to but not including the Distribution Date on
which the proceeds, if any, of a Liquidation Event with respect to such
Mortgage Loan would be distributed, the outstanding principal balance of such
Mortgage Loan as of the Cut-off Date, after giving effect to all Monthly
Payments due thereon on or before the Cut-off Date whether or not received and
as shown in the Mortgage Loan Schedule, minus the sum of (i) the principal
portion of each Monthly Payment due on a Due Date subsequent to the Cut-off
Date, to the extent received from the Mortgagor or included in a Advance and
distributed pursuant to Section 4.01 on or before such date of determination,
(ii) all Principal Prepayments received after the Cut-off Date, to the extent
distributed pursuant to Section 4.01 on or before such date of determination,
(iii) all Liquidation Proceeds and Insurance Proceeds applied by the Servicer
as recoveries of principal in accordance with the provisions of Section 3.16,
to the extent distributed pursuant to Section 4.01 on or before such date of
determination, and (iv) any Realized Loss incurred with respect thereto as a
result of a Deficient Valuation made during or prior to the Collection Period
for the most recent Distribution Date coinciding with or preceding such date
of determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed,
zero. With respect to any REO Property: (a) as of any date of determination up
to but not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance of the
related Mortgage Loan as of the date on which such REO Property was acquired
on behalf of the Trust Fund, minus the aggregate amount of REO Principal
Amortization in respect of such REO Property for all previously ended calendar
months, to the extent distributed pursuant to Section 4.01 on or before such
date of determination; and (b) as of any date of determination coinciding with
or subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
"Stayed Funds": Any payment required to be made under the terms of
the Certificates and this Agreement but which is not remitted to the Trustee
because the Servicer is the subject to a proceeding under the Bankruptcy Code
and the making of such remittance is prohibited by Section 362 of the
Bankruptcy code.
"Stepdown Date": The earlier to occur of (i) the later to occur of
(x) the Distribution Date in April 2003 and (y) the first Distribution Date on
which the Senior Enhancement Percentage (after taking into account
distributions of principal on such Distribution Date) is greater than or equal
to the Senior Specified Enhancement Percentage and (ii) the Distribution Date
on which the Class Certificate Balance of the Class A Certificates has been
reduced to zero.
"Subsequent Mortgage Loan": Not Applicable.
"Subsequent Mortgage Loan Schedule": Not Applicable.
"Subsequent Transfer Agreement": Not Applicable.
"Subsequent Transfer Date": Not Applicable.
"Subordinated Certificates": The Class M Certificates and the Class B
Certificates.
"Subservicer": As defined in Section 3.02.
"Subservicing Agreement": As defined in Section 3.02.
"Substitution Shortfall Amount": As defined in Section 2.03(d)
hereof.
"Targeted Overcollateralization Amount": As of any Distribution Date,
(x) prior to the Stepdown Date, 2.00% of the initial Pool Principal Balance
and (y) on and after the Stepdown Date and assuming a Trigger Event is not in
effect, the greater of (i) 4.00% of the Pool Principal Balance as of the last
day of the related Collection Period and (ii) $1,721,299.48. If a Trigger
Event is in effect on and after the Stepdown Date, the Targeted
Overcollateralization Amount shall be equal to the Targeted
Overcollateralization Amount for the immediately preceding Distribution Date.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of the Trust Fund due to its classification as a
REMIC under the REMIC Provisions, together with any and all other information
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal,
state or local tax laws.
"Telerate Page 3750": The display page currently so designated on the
Dow Jones Telerate Service (or such other page as may replace the Telerate
Page 3750 page on that service for the purpose of displaying London interbank
offered rates of major banks.
"Termination Price": As defined in Section 10.01.
"Terminator": As defined in Section 10.01.
"Total Distribution Amount": With respect to any Distribution Date,
the sum of the Interest Remittance Amount for such date and the Principal
Remittance Amount for such date.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trigger Event": With respect to any Distribution Date, a
Distribution Date on which the three-month rolling average of 60+ Day
Delinquent Loans equals or exceeds one-half of the Senior Enhancement
Percentage; provided, that if the Class Certificate Balance of the Class A
Certificates has been reduced to zero, a Trigger Event will have occurred if
the three-month rolling average of 60+ Day Delinquent Loans equals or exceeds
14.75%.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto,
and together with all collections thereon and proceeds thereof, (ii) any REO
Property, together with all collections thereon and proceeds thereof, (iii)
the Trustee's rights with respect to the Mortgage Loans under all insurance
policies required to be maintained pursuant to this Agreement and any proceeds
thereof, (iv) the Depositor's rights under the Mortgage Loan Purchase
Agreement (including any security interest created thereby but excluding the
rights under Section 17 thereof), (v) the Collection Account, the Distribution
Account and any REO Account and such assets that are deposited therein from
time to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto. Notwithstanding the foregoing,
however, the Trust Fund specifically excludes all payments and other
collections of principal and interest due on the Mortgage Loans on or before
the Cut-off Date.
"Trustee": The Chase Manhattan Bank, a New York banking corporation,
or its successor in interest, or any successor trustee appointed as herein
provided.
"Trustee's Fee": With respect to each Distribution an amount equal to
one twelfth of the product of (i) the Trustee's Fee Rate, multiplied by (ii)
the aggregate Stated Principal Balance of the Mortgage Loans and any REO
Properties as of the preceding Distribution Date (or, in the case of the
initial Distribution Date, as of the Cut-off Date).
"Trustee's Fee Rate": A rate per annum equal to the sum of (i)
0.0115% and (ii) the reasonable out-of-pocket expenses of the Trustee incurred
in connection with its duties as Trustee, expressed as a percentage of the
aggregate Stated Principal Balance of the Mortgage Loans and any REO
Properties as of the preceding Distribution Date (or, in the case of the
initial Distribution Date, as of the Cut-off Date).
"Uninsured Cause": Any cause of damage to a Mortgaged Property such
that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained pursuant to Section
3.14.
"United States Person": A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for United States federal income tax purposes) created or
organized in, or under the laws of, the United States, any state thereof or
the District of Columbia (unless, in the case of a partnership, Treasury
regulations are adopted that provide otherwise), an estate whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust. The term "United
States" shall have the meaning set forth in Section 7701 of the Code.
"Unpaid Basis Risk Shortfall": With respect to any Distribution Date
and any Class of Offered Certificates, the aggregate of all Basis Risk
Shortfalls with respect to such Class remaining unpaid from previous
Distribution Dates, plus interest accrued thereon at the applicable LIBOR
Rate.
"Unpaid Realized Loss Amount": For any Class of Subordinated
Certificates and as to any Distribution Date, the excess of (x) the aggregate
cumulative amount of related Applied Realized Loss Amounts with respect to
such Class for all prior Distribution Dates over (y) the aggregate, cumulative
amount of related Realized Loss Amortization Amounts with respect to such
Class for all prior Distribution Dates.
"Value": With respect to any Mortgaged Property, the lesser of (i)
the lesser of (a) the value thereof as determined by an appraisal made for the
originator of the Mortgage Loan at the time of origination of the Mortgage
Loan by an appraiser who met the minimum requirements of FNMA and FHLMC, and
(b) the value thereof as determined by a review appraisal conducted by the
Mortgage Loan Originator in the event any such review appraisal determines an
appraised value ten percent or more lower than the value thereof as determined
by the appraisal referred to in clause (i)(a) above and (ii) the purchase
price paid for the related Mortgaged Property by the Mortgagor with the
proceeds of the Mortgage Loan, provided, however, in the case of a Refinanced
Mortgage Loan, such value of the Mortgaged Property is based solely upon the
lesser of (1) the value determined by an appraisal made for the originator of
such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by an appraiser who met the minimum requirements of FNMA and
FHLMC and (2) the value thereof as determined by a review appraisal conducted
by the Mortgage Loan Originator in the event any such review appraisal
determines an appraised value ten percent or more lower than the value thereof
as determined by the appraisal referred to in clause (ii)(1) above.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. The percentage of the
voting rights allocated among Holders of the Offered Certificates will be 97%;
the percentage of the voting rights allocated among the Holders of the Class X
Certificate will be 2%; and the percentage of the voting rights allocated
among the Holders of the Class R Certificates will be 1%. The Voting Rights
allocated to each Class of Certificates will be allocated among all Holders of
each such Class in proportion to the outstanding Certificate Principal Balance
(or Percentage Interest) of such Certificates as of the most recent
Distribution Date.
"Weighted Average Net Mortgage Rate": The weighted average (by
Scheduled Principal Balance) of the Net Mortgage Rates of the Mortgage Loans
as of the first day of the related Interest Accrual Period.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee without recourse for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to the Mortgage Loans
identified on the Mortgage Loan Schedule, the rights of the Depositor under
the Mortgage Loan Purchase Agreement (other than the rights under Section 17
thereof), and all other assets included or to be included in the Trust Fund.
Such assignment includes all interest and all principal received by the
Depositor or the Servicer after the Cut-off Date with respect to the Mortgage
Loans (other than payments due on or before the Cut-off Date). All remaining
interest due and received on the Mortgage Loans with respect to the first
Collection Period shall be remitted by the Servicer to the Mortgage Loan
Originator.
In connection with such transfer and assignment, the Depositor will
cause the Mortgage Loan Originator to deliver to, and deposit with, the
Trustee the following documents or instruments with respect to each Mortgage
Loan (a "Mortgage File") so transferred and assigned:
(i) the original Mortgage Note, endorsed in the
following form: "Pay to the order of The Chase Manhattan
Bank, as Trustee for the registered holders of Merrill Lynch
Mortgage Investors, Inc., Series 2000-FF1, without
recourse," with all prior and intervening endorsements
showing a complete chain of endorsement from the originator
to the Person so endorsing to the Trustee;
(ii) the original Mortgage with evidence of
recording thereon, and the original recorded power of
attorney, if the Mortgage was executed pursuant to a power
of attorney, with evidence of recording thereon or, if such
Mortgage or power of attorney has been submitted for
recording but has not been returned from the applicable
public recording office or is not otherwise available, a
copy of such Mortgage or power of attorney, as the case may
be, certified by the Mortgage Loan Originator to be a true
and complete copy of the original submitted for recording
with the recorded original to be delivered by the Mortgage
Loan Originator to the Trustee within 120 days of the
Closing Date;
(iii) an original Assignment of the Mortgage
executed in the following form: "The Chase Manhattan Bank,
as Trustee for the registered holders of Merrill Lynch
Mortgage Investors, Inc., Series 2000-FF1";
(iv) the original recorded Assignment or
Assignments of the Mortgage showing a complete chain of
assignment from the originator to the Person assigning the
Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii) or, if any such Assignment has been
submitted for recording but has not been returned from the
applicable public recording office or is not otherwise
available, a copy of such Assignment certified by the
Mortgage Loan Originator to be a true and complete copy of
the original submitted for recording with the recorded
original to be delivered by the Mortgage Loan Originator to
the Trustee within 120 days of the Closing Date;
(v) the original or copies of each assumption,
modification, written assurance or substitution agreement,
if any; and
(vi) the original lender's title insurance policy,
together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring
the priority of the Mortgage as a first lien on the
Mortgaged Property represented therein as a fee interest
vested in the Mortgagor, or in the event such original title
policy is unavailable, a written commitment or uniform
binder or preliminary report of title issued by the title
insurance or escrow company with the original title policy
to be delivered by the Mortgage Loan Originator to the
Trustee within 120 days of the Closing Date.
(b) The Depositor shall cause the Mortgage Loan Originator to
promptly (and in no event later than five Business Days following the Closing
Date) submit or cause to be submitted for recording, at no expense to the
Trust Fund or the Trustee, in the appropriate public office for real property
records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In
the event that any such Assignment is lost or returned unrecorded because of a
defect therein, the Depositor shall promptly prepare or cause to be prepared a
substitute Assignment or cure or cause to be cured such defect, as the case
may be, and thereafter cause each such Assignment to be duly recorded.
(c) If any original Mortgage Note referred to in Section 2.01(i)
cannot be located, the obligations of the Depositor to cause the Mortgage Loan
Originator to deliver such documents shall be deemed to be satisfied upon
delivery to the Trustee of a photocopy of the original of such Mortgage Note,
with a Lost Note Affidavit to follow within one Business Day. If any of the
documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the
Closing Date been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) such public recording
office has retained the original of such document, the obligations of the
Depositor to cause the Mortgage Loan Originator to deliver such documents
shall be deemed to be satisfied upon (1) delivery to the Trustee of a copy of
each such document certified by the Mortgage Loan Originator in the case of
(x) above or the applicable public recording office in the case of (y) above
to be a true and complete copy of the original that was submitted for
recording and (2) if such copy is certified by the Mortgage Loan Originator,
delivery to the Trustee promptly upon receipt thereof of either the original
or a copy of such document certified by the applicable public recording office
to be a true and complete copy of the original. Notice shall be provided to
the Trustee and the Rating Agencies by the Mortgage Loan Originator if
delivery pursuant to clause (2) above will be made more than 180 days after
the Closing Date. If the original lender's title insurance policy was not
delivered pursuant to Section 2.01(vi) above, the Depositor shall cause the
Mortgage Loan Originator to deliver to the Trustee, promptly after receipt
thereof, the original lender's title insurance policy. The Depositor shall
cause the Mortgage Loan Originator to deliver to the Trustee promptly upon
receipt thereof any other original documents constituting a part of a Mortgage
File received with respect to any Mortgage Loan, including, but not limited
to, any original documents evidencing an assumption or modification of any
Mortgage Loan.
(d) All original documents relating to the Mortgage Loans that
are not delivered to the Trustee are and shall be held by or on behalf of the
Mortgage Loan Originator, the Depositor or the Servicer, as the case may be,
in trust for the benefit of the Trustee on behalf of the Certificateholders.
In the event that any such original document is required pursuant to the terms
of this Section to be a part of a Mortgage File, such document shall be
delivered promptly to the Trustee. Any such original document delivered to or
held by the Depositor or the Mortgage Loan Originator that is not required
pursuant to the terms of this Section to be a part of a Mortgage File, shall
be delivered promptly to the Servicer.
(e) The Depositor herewith delivers to the Trustee an executed
copy of the Mortgage Loan Purchase Agreement.
SECTION 2.02. Acceptance by Trustee.
(a) Subject to the provisions of Section 2.01 and subject to the
review described below and any exceptions noted on the exception report
described in the next paragraph below, the Trustee acknowledges receipt of the
documents referred to in Section 2.01(a) (other than such documents described
in Section 2.01(a)(v)) above and all other assets included in the definition
of "Trust Fund" (to the extent of amounts deposited into the Distribution
Account) and declares that it holds and will hold such documents and the other
documents delivered to it constituting a Mortgage File, and that it holds or
will hold all such assets and such other assets included in the definition of
"Trust Fund" in trust for the exclusive use and benefit of all present and
future Certificateholders.
(b) The Trustee agrees, for the benefit of the
Certificateholders, to review each Mortgage File within 30 days after the
Closing Date and to certify in substantially the form attached hereto as
Exhibit B-1 (with any applicable exceptions noted thereon) that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan which has been certified as having been paid in full or any Mortgage Loan
specifically identified in the exception report annexed thereto as not being
covered by such certification), (i) all documents constituting part of such
Mortgage File (other than such documents described in Section 2.01(a)(v))
required to be delivered to it pursuant to this Agreement are in its
possession, (ii) such documents have been reviewed by it and appear regular on
their face and relate to such Mortgage Loan, (iii) based on its examination
and only as to the foregoing, the information set forth in the Mortgage Loan
Schedule that corresponds to items (1) through (3), (6), (9), (10), (12),
(14), (15), (17), (18) and (19) of the definition of "Mortgage Loan Schedule"
accurately reflects information set forth in the Mortgage File. It is herein
acknowledged that, in conducting such review, the Trustee was under no duty or
obligation (i) to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that they are genuine, enforceable,
or appropriate for the represented purpose or that they have actually been
recorded or that they are other than what they purport to be on their face, or
(ii) to determine whether any Mortgage File should include any of the
documents specified in clause (v) of Section 2.01(a).
(c) Prior to the first anniversary date of this Agreement the
Trustee shall deliver to the Depositor and the Servicer a final certification
in the form annexed hereto as Exhibit B-2 evidencing the completeness of the
Mortgage Files, with any applicable exceptions noted thereon.
(d) If in the process of reviewing the Mortgage Files and making
or preparing, as the case may be, the certifications referred to above, the
Trustee finds any document or documents constituting a part of a Mortgage File
to be missing or defective in any material respect, at the conclusion of its
review the Trustee shall so notify the Depositor and the Servicer. In
addition, upon the discovery by the Depositor, the Servicer or the Trustee of
a breach of any of the representations and warranties made by the Mortgage
Loan Originator in the Mortgage Loan Purchase Agreement in respect of any
Mortgage Loan which materially adversely affects such Mortgage Loan or the
interests of the related Certificateholders in such Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties.
In performing any such review pursuant to this Section 2.02, the Trustee may
rely on the Depositor as to the purported genuineness of any such document and
any signature thereon. The Trustee shall have no responsibility for
determining whether any document is valid and binding, whether the text of any
assignment or endorsement is in proper or recordable form, whether any
document has been recorded in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
SECTION 2.03. Repurchase or Substitution of Mortgage Loans
by the Mortgage Loan Originator.
(a) Upon discovery or receipt of notice of any materially
defective document in, or that a document is missing from, a Mortgage File or
of the breach by the Mortgage Loan Originator of any representation, warranty
or covenant under the Mortgage Loan Purchase Agreement in respect of any
Mortgage Loan which materially adversely affects the value of such Mortgage
Loan or the interest therein of the Certificateholders, the Trustee shall
promptly notify the Mortgage Loan Originator, the Servicer and the Depositor
of such defect, missing document or breach and request that the Mortgage Loan
Originator deliver such missing document or cure such defect or breach within
60 days from the date the Mortgage Loan Originator was notified of such
missing document, defect or breach, and if the Mortgage Loan Originator does
not deliver such missing document or cure such defect or breach in all
material respects during such period, the Servicer shall enforce the Mortgage
Loan Originator's obligation under the Mortgage Loan Purchase Agreement (i) in
connection with any such breach that could not reasonably have been cured
within such 60 day period, if the Mortgage Loan Originator shall have
commenced to cure such breach within such 60 day period, to proceed thereafter
diligently and expeditiously to cure the same within the additional period
provided under the Mortgage Loan Purchase Agreement and (ii) in connection
with any such breach (subject to clause (i) above) or in connection with any
missing document or defect, to repurchase such Mortgage Loan from the Trust
Fund at the Purchase Price within 120 days after the date on which the
Mortgage Loan Originator was notified (subject to Section 2.03(e)) of such
missing document, defect or breach, if and to the extent that the Mortgage
Loan Originator is obligated to do so under the Mortgage Loan Purchase
Agreement. The Purchase Price for the repurchased Mortgage Loan shall be
deposited in the Collection Account and the Trustee, upon receipt of written
certification from the Servicer of such deposit, shall release the related
Mortgage File to the Mortgage Loan Originator and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
the Mortgage Loan Originator shall furnish to it and as shall be necessary to
vest in the Mortgage Loan Originator any Mortgage Loan released pursuant
hereto and the Trustee shall have no further responsibility with regard to
such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided
above, if so provided in the Mortgage Loan Purchase Agreement, the Mortgage
Loan Originator may cause such Mortgage Loan to be removed from the Trust Fund
(in which case it shall become a Deleted Mortgage Loan) and substitute one or
more Qualified Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(d). It is understood and agreed that the
obligation of the Mortgage Loan Originator to cure or to repurchase (or to
substitute for) any Mortgage Loan as to which a document is missing, a
material defect in a constituent document exists or as to which such a breach
has occurred and is continuing shall constitute the sole remedy respecting
such omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
(b) [Reserved]
(c) [Reserved]
(d) Any substitution of Qualified Substitute Mortgage Loans for
Deleted Mortgage Loans made pursuant to Section 2.03(a), must be effected
prior to the date which is two years after the Startup Day for the Trust Fund.
As to any Deleted Mortgage Loan for which the Mortgage Loan
Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such
substitution shall be effected by the Mortgage Loan Originator delivering to
the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the
Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other
documents and agreements, with all necessary endorsements thereon, as are
required by Section 2.01, together with an Officers' Certificate providing
that each such Qualified Substitute Mortgage Loan satisfies the definition
thereof and specifying the Substitution Shortfall Amount (as described below),
if any, in connection with such substitution. The Trustee shall acknowledge
receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten
Business Days thereafter, review such documents as specified in Section 2.02
and deliver to the Depositor and the Servicer, with respect to such Qualified
Substitute Mortgage Loan or Loans, a certification substantially in the form
attached hereto as Exhibit B-1, with any applicable exceptions noted thereon.
Within one year of the date of substitution, the Trustee shall deliver to the
Depositor and the Servicer a certification substantially in the form of
Exhibit B-2 hereto with respect to such Qualified Substitute Mortgage Loan or
Loans, with any applicable exceptions noted thereon. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution
are not part of the Trust Fund and will be retained by the Mortgage Loan
Originator. For the month of substitution, distributions to Certificateholders
will reflect the collections and recoveries in respect of such Deleted
Mortgage Loan in the Collection Period preceding the month of substitution and
the Mortgage Loan Originator shall thereafter be entitled to retain all
amounts subsequently received in respect of such Deleted Mortgage Loan. The
Mortgage Loan Originator shall provide the Servicer with the information
required to amend the Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage Loan from the terms of this Agreement and the substitution of
the Qualified Substitute Mortgage Loan or Loans and the Servicer shall deliver
a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such
substitution, such Qualified Substitute Mortgage Loan or Loans shall
constitute part of the Mortgage Pool and shall be subject in all respects to
the terms of this Agreement and, in the case of a substitution effected by the
Mortgage Loan Originator, the Mortgage Loan Purchase Agreement, including, in
the case of a substitution effected by the Mortgage Loan Originator all
applicable representations and warranties thereof included in the Mortgage
Loan Purchase Agreement as of the date of substitution.
For any month in which the Mortgage Loan Originator substitutes one
or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the Servicer will determine the amount (the "Substitution Shortfall
Amount"), if any, by which the aggregate Purchase Price of all such Deleted
Mortgage Loans exceeds the aggregate, as to each such Qualified Substitute
Mortgage Loan, of the Stated Principal Balance thereof as of the related
Cut-Off Date, together with one month's interest on such principal balance at
the applicable Mortgage Rate. On the date of such substitution, the Mortgage
Loan Originator will deliver or cause to be delivered to the Servicer for
deposit in the Collection Account an amount equal to the Substitution
Shortfall Amount, if any, and the Trustee, upon receipt of the related
Qualified Substitute Mortgage Loan or Loans and certification by the Servicer
of such deposit, shall release to the Mortgage Loan Originator the related
Mortgage File or Files and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Mortgage Loan
Originator shall deliver to it and as shall be necessary to vest therein any
Deleted Mortgage Loan released pursuant hereto.
In addition, the Mortgage Loan Originator shall obtain at its own
expense and deliver to the Trustee an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be imposed on any
REMIC created hereunder, including without limitation, any federal tax imposed
on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code,
or (b) any REMIC created hereunder to fail to qualify as a REMIC at any time
that any Certificate is outstanding.
(e) Upon discovery by the Depositor, the Servicer or the Trustee
that any Mortgage Loan does not constitute a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code, the party discovering such fact
shall within two Business Days give written notice thereof to the other
parties. In connection therewith, the Mortgage Loan Originator shall
repurchase or, subject to the limitations set forth in Section 2.03(d),
substitute one or more Qualified Substitute Mortgage Loans for the affected
Mortgage Loan within 90 days of the earlier of discovery or receipt of such
notice with respect to such affected Mortgage Loan. Any such repurchase or
substitution shall be made in the same manner as set forth in Sections
2.03(a). The Trustee shall reconvey to the Mortgage Loan Originator the
Mortgage Loan to be released pursuant hereto in the same manner, and on the
same terms and conditions, as it would a Mortgage Loan repurchased for breach
of a representation or warranty.
SECTION 2.04. Representations and Warranties of the
Depositor.
(a) The Depositor hereby represents and warrants to the Trustee
for the benefit of the Certificateholders that as of the Closing Date the
assignment of the Depositor's rights, but none of its obligations, under the
Mortgage Loan Purchase Agreement is valid, enforceable and effective to permit
the Trustee to enforce the obligations of the Mortgage Loan Originator
thereunder.
(b) It is understood and agreed that the representations and
warranties set forth in this Section 2.04 shall survive delivery of the
Mortgage Files to the Trustee and shall inure to the benefit of the
Certificateholders notwithstanding any restrictive or qualified endorsement or
assignment.
Upon discovery by any of the Depositor, the Servicer or the
Trustee of a breach of any of the foregoing representations and warranties
which materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Certificateholders, the party discovering such breach
shall give prompt written notice to the other parties, and in no event later
than two Business Days from the date of such discovery.
SECTION 2.05. Representations, Warranties and Covenants of
the Servicer.
(a) The Servicer hereby represents, warrants and covenants to
the Trustee, for the benefit of each of the Trustee, the Certificateholders
and to the Depositor that as of the Closing Date or as of such date
specifically provided herein:
(i) The Servicer is duly organized, validly
existing and in good standing as a limited partnership under
the laws of the State of Delaware and is and will remain
duly licensed under and in compliance with the laws of each
state in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each
Mortgage Loan and the servicing of the Mortgage Loan in
accordance with the terms of this Agreement;
(ii) The Servicer has the full power and authority
to conduct its business as presently conducted by it and to
execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement.
The Servicer has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and
delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Depositor, and
the Trustee, constitutes a legal, valid and binding
obligation of the Servicer, enforceable against it in
accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of
creditors' rights generally and by general principles of
equity;
(iii) The execution and delivery of this Agreement
by the Servicer and the performance of and compliance with
the terms of this Agreement will not (a) violate the
Servicer's limited partnership agreement or any law, rule,
regulation, order, judgment, award, administrative
interpretation, injunction, writ, decree or the like
affecting the Servicer or by which the Servicer is bound or
(b) result in a breach of or constitute a default under any
indenture or other material agreement to which the Servicer
is a party or by which the Servicer is bound, which in the
case of either clause (a) or (b) will have a material
adverse effect on the Servicer's ability to perform its
obligations under this Agreement;
(iv) The Servicer is an approved servicer for FHLMC
or FNMA in good standing and is a HUD approved mortgagee
pursuant to Section 203 of the National Housing Act; no
event has occurred, including but not limited to a change in
insurance coverage, which would make the Servicer unable to
comply with FHLMC or FNMA or HUD eligibility requirements or
which would require notification to FHLMC or FNMA or HUD;
(v) The Servicer does not believe, nor does it have
any reason or cause to believe, that it cannot perform each
and every covenant of it contained in this Agreement;
(vi) With respect to each Mortgage Loan, the
Servicer is, or will be within 30 days of the Closing Date,
in possession of a complete mortgage file, except for such
documents as have been delivered to the Trustee. To the
extent the Servicer is not in possession of a complete
mortgage file within 30 days of the Closing Date, the
Servicer shall so notify the Trustee;
(vii) There are no actions or proceedings against,
investigations known to it of, the Servicer before any
court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to
prevent the consummation of the transactions contemplated by
this Agreement or (C) that might prohibit or materially and
adversely affect the performance by the Servicer of its
obligations under, or validity or enforceability of, this
Agreement; and
(viii) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the execution, delivery and performance by the Servicer of,
or compliance by the Servicer with, this Agreement or the
consummation of the transactions contemplated by this
Agreement, except for such consents, approvals,
authorizations or orders, if any, that have been obtained
prior to the Closing Date.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 (c) shall survive delivery of the
Mortgage Files to the Trustee and shall inure to the benefit of the Trustee,
the Depositor and the Certificateholders. Upon discovery by any of the
Depositor, the Servicer or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt
written notice (but in no event later than two Business Days following such
discovery) to the Trustee.
SECTION 2.06. Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery to it of the Mortgage Files, subject to the provisions of
Sections 2.01 and 2.02, together with the assignment to it of all other assets
included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed, authenticated and delivered to or upon
the order of the Depositor, the Certificates in authorized denominations. The
interests evidenced by the Certificates constitute the entire beneficial
ownership interest in the Trust Fund.
Section 2.07. Sale and Conveyance of the Subsequent
Mortgage Loans.
[Reserved].
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Servicer to Act as Servicer.
The Servicer shall service and administer the Mortgage Loans on
behalf of the Trustee and in the best interests of and for the benefit of the
Certificateholders (as determined by the Servicer in its reasonable judgment)
in accordance with the terms of this Agreement and the respective Mortgage
Loans and, to the extent consistent with such terms, in the same manner in
which it services and administers similar mortgage loans for its own
portfolio, giving due consideration to customary and usual standards of
practice of prudent mortgage lenders and loan servicers administering similar
mortgage loans but without regard to:
(i) any relationship that the Servicer or any
Affiliate of the Servicer may have with the related
Mortgagor;
(ii) the ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make Advances or
Servicing Advances; or
(iv) the Servicer's right to receive compensation
for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, the Servicer shall also seek to
maximize the timely and complete recovery of principal and interest on the
Mortgage Notes. Subject only to the above-described servicing standards and
the terms of this Agreement and of the respective Mortgage Loans, the Servicer
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. Without limiting the generality of the foregoing, the
Servicer in its own name is hereby authorized and empowered by the Trustee
when the Servicer believes it appropriate in its best judgment, to execute and
deliver, on behalf of the Certificateholders and the Trustee or any of them,
and upon notice to the Trustee, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans and the Mortgaged
Properties and to institute foreclosure proceedings or obtain a deed-in-lieu
of foreclosure so as to convert the ownership of such properties, and to hold
or cause to be held title to such properties, on behalf of the Trustee and
Certificateholders. The Servicer shall service and administer the Mortgage
Loans in accordance with applicable state and federal law and shall provide to
the Mortgagors any reports required to be provided to them thereby. The
Servicer shall also comply in the performance of this Agreement with all
reasonable rules and requirements of each insurer under any standard hazard
insurance policy. Subject to Section 3.17, the Trustee shall execute, at the
written request of the Servicer, and furnish to the Servicer any special or
limited powers of attorney and other documents necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties
hereunder and the Trustee shall not be liable for the actions of the Servicer
under such powers of attorney.
In accordance with the standards of the preceding paragraph, the
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which Servicing Advances shall be reimbursable in the first
instance from related collections from the Mortgagors pursuant to Section
3.09, and further as provided in Section 3.11. Any cost incurred by the
Servicer in effecting the payment of taxes and assessments on a Mortgaged
Property shall not, for the purpose of calculating the Stated Principal
Balance of a Mortgage Loan or distributions to Certificateholders, be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit.
Notwithstanding anything in this Agreement to the contrary, the
Servicer may not make any future advances with respect to a Mortgage Loan and
the Servicer shall not, except as provided in Section 3.07, permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Rate, reduce or increase the principal balance (except for reductions
resulting from actual payments of principal) or change the final maturity date
on such Mortgage Loan or any modification, waiver or amendment of any term of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and (B) cause any of the REMICs
created hereunder to fail to qualify as a REMIC under the Code or the
imposition of any tax on "prohibited transactions" or "contributions after the
startup date" under the REMIC Provisions.
Notwithstanding anything in this Agreement to the contrary, in the
event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may
not waive any Prepayment Premium or portion thereof required by the terms of
the related Mortgage Note unless (i) the Servicer determines that such waiver
would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking
into account the value of such Prepayment Premium, or (ii) (A) the
enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium,
receivership, or other similar law relating to creditors' rights generally or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
applicable law. In the event of a Principal Prepayment in full with respect to
any Mortgage Loan, the Servicer shall deliver to the Trustee an Officer's
Certificate substantially in the form of Exhibit J no later than the third
Business Day following the immediately succeeding Determination Date with a
copy to the Class X Certificateholder. If the Servicer has waived all or a
portion of a Prepayment Premium relating to a Principal Prepayment in full,
other than as provided above, the Servicer shall, within 90 days of the date
on which the Principal Prepayment in full is remitted to the Trustee, deposit
the amount of such Prepayment Premium (or such portion thereof as had been
waived) into the Collection Account for distribution in accordance with the
terms of this Agreement.
With respect to each Mortgage Loan which is the subject of a
Principal Prepayment in full, the Trustee shall verify whether such Mortgage
Loan was identified on the Mortgage Loan Schedule as being subject to a
Prepayment Premium and, if such Mortgage Loan is so identified, whether the
amount of the Prepayment Premium remitted by the Servicer (including any
amounts to be remitted by the Servicer pursuant to the last sentence of the
preceding paragraph), if any, is consistent with the amount of the Prepayment
Premium set forth in the Mortgage Loan Schedule. In the event that the Trustee
determines that a Prepayment Premium received with respect to a Principal
Prepayment in full is inconsistent with the Prepayment Premium set forth in
the Mortgage Loan Schedule for the related Mortgage Loan and such
inconsistency results in the receipt of a reduced Prepayment Premium, the
Trustee shall provide notice to the Mortgage Loan Originator of such
inconsistency. Within 90 days of the end of each calendar quarter, the
Mortgage Loan Originator shall remit to the Trustee for deposit in the
Distribution Account an amount equal to the difference between the amount of
the Prepayment Premiums received by the Trustee during such quarter and the
amount of the Prepayment Premiums determined in accordance with the
description thereof set forth in the Mortgage Loan Schedule for the related
Mortgage Loans.
The Trustee shall prepare and deliver to the Depositor and the owner
of the Class X Certificate, on a monthly basis, a statement substantially in
the form of Exhibit K setting forth the amounts due and received with respect
to Prepayment Premiums.
The Servicer may delegate its responsibilities under this Agreement;
provided, however, that no such delegation shall release the Servicer from the
responsibilities or liabilities arising under this Agreement.
SECTION 3.02. Sub-Servicing Agreements Between Servicer and
Sub-Servicers.
The Servicer may arrange for the subservicing of any Mortgage Loan by
a subservicer (each, a "Subservicer") pursuant to a subservicing agreement
(each, a "Subservicing Agreement"); provided that such subservicing
arrangement and the terms of the related subservicing agreement must provide
for the servicing of such Mortgage Loans in a manner consistent with the
servicing arrangements contemplated hereunder. Notwithstanding the provisions
of any subservicing agreement, any of the provisions of this Agreement
relating to agreements or arrangements between the Servicer or a subservicer
or reference to actions taken through a Servicer or otherwise, the Servicer
shall remain obligated and liable to the Depositor, the Trustee and the
Certificateholders for the servicing and administration of the Mortgage Loans
in accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements or by virtue of indemnification from the subservicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Mortgage Loans. Every subservicing
agreement entered into by the Servicer shall contain a provision giving the
successor Servicer the option to terminate such agreement in the event a
successor Servicer is appointed. All actions of each subservicer performed
pursuant to the related subservicing agreement shall be performed as an agent
of the Servicer with the same force and effect as if performed directly by the
Servicer.
For purposes of this Agreement, the Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the Mortgage
Loans that are received by a subservicer regardless of whether such payments
are remitted by the subservicer to the Servicer.
SECTION 3.03. Successor Sub-Servicers.
The Servicer shall be entitled to terminate any Sub-Servicing
Agreement in accordance with the terms and conditions of such Sub-Servicing
Agreement and to either itself directly service the related Mortgage Loans or
enter into a Sub-Servicing Agreement with a successor Sub-Servicer which
qualifies under Section 8.03.
SECTION 3.04. No Contractual Relationship Between Sub-Servicer,
Trustee or the Certificateholders.
Any Sub-Servicing Agreement and any other transactions or services
relating to the Mortgage Loans involving a Sub-Servicer shall be deemed to be
between the Sub-Servicer and the Servicer alone and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to any
Sub-Servicer except as set forth in Section 3.05.
SECTION 3.05. Assumption or Termination of Sub-Servicing Agreement
by Trustee.
In connection with the assumption of the responsibilities, duties and
liabilities and of the authority, power and rights of the Servicer hereunder
by the Trustee pursuant to Section 7.02 or another successor Servicer, it is
understood and agreed that the Servicer's rights and obligations under any
Sub-Servicing Agreement then in force between the Servicer and a Sub-Servicer
shall be assumed simultaneously by the Trustee or another successor Servicer
without act or deed on part of the Trustee; provided, however, that the
Trustee (if acting as successor Servicer) or any other successor Servicer may
terminate the Sub-Servicer.
The Servicer shall, upon the reasonable request of the Trustee, but
at the expense of the Servicer, deliver to the assuming party documents and
records relating to each Sub-Servicing Agreement and an accounting of amounts
collected and held by it and otherwise use its best reasonable efforts to
effect the disorderly and efficient transfer of the Sub-Servicing Agreements
to the assuming party.
SECTION 3.06. [RESERVED]
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans, and shall, to
the extent such procedures shall be consistent with this Agreement, follow
such collection procedures as it would follow with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Consistent with
the foregoing, the Servicer may in its discretion (i) waive any late payment
charge or, if applicable, penalty interest or (ii) extend the due dates for
the Monthly Payments due on a Mortgage Note for a period of not greater than
90 days, extend the due dates for Monthly Payments due on a Mortgage Loan for
a period of not greater than 180 days; provided that any extension pursuant to
clause (ii) above shall not affect the amortization schedule of any Mortgage
Loan for purposes of any computation hereunder. Notwithstanding the foregoing,
in the event that any Mortgage Loan is in default or, in the judgment of the
Servicer, such default is reasonably foreseeable, the Servicer, consistent
with the standards set forth in Section 3.01 may waive, modify or vary any
term of such Mortgage Loan (including modifications that change the Mortgage
Rate, forgive the payment of principal or interest or extend the final
maturity date of such Mortgage Loan), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
if in the Servicer's determination such waiver, modification, postponement or
indulgence is not materially adverse to the interests of the
Certificateholders (taking into account any estimated Realized Loss that might
result absent such action).
SECTION 3.08. [RESERVED]
SECTION 3.09. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
The Servicer shall establish and maintain one or more accounts (the
"Servicing Accounts"), into which all collections from the Mortgagors (or
related advances from Sub-Servicers) for the payment of taxes, assessments,
hazard insurance premiums, and comparable items for the account of the
Mortgagors ("Escrow Payments") shall be deposited and retained. Servicing
Accounts shall be Eligible Accounts. The Servicer shall deposit in the
Servicing Accounts on a daily basis and in no event later than the second
Business Day after receipt, and retain therein, all Escrow Payments collected
on account of the Mortgage Loans, for the purpose of effecting the timely
payment of any such items as required under the terms of this Agreement.
Withdrawals of amounts from a Servicing Account may be made only to (i) effect
timely payment of taxes, assessments, hazard insurance premiums, and
comparable items; (ii) reimburse the Servicer out of related collections for
any Servicing Advances made pursuant to Section 3.01 (with respect to taxes
and assessments) and Section 3.14 (with respect to hazard insurance); (iii)
refund to Mortgagors any sums as may be determined to be overages; (iv) pay
interest, if required and as described below, to Mortgagors on balances in the
Servicing Account; or (v) clear and terminate the Servicing Account at the
termination of the Servicer's obligations and responsibilities in respect of
the Mortgage Loans under this Agreement in accordance with Article X. As part
of its servicing duties, the Servicer shall pay to the Mortgagors interest on
funds in Servicing Accounts, to the extent required by law and, to the extent
that interest earned on funds in the Servicing Accounts is insufficient, to
pay such interest from its or their own funds, without any reimbursement
therefor. Notwithstanding the foregoing, the Servicer shall not be obligated
to collect Escrow Payments if the related Mortgage Loan does not require such
payments but the Servicer shall nevertheless be obligated to make Servicing
Advances as provided in Section 3.01.
SECTION 3.10. Collection Account and Distribution Account.
(a) On behalf of the Trust Fund, the Servicer shall establish
and maintain one or more accounts (such account or accounts, the "Collection
Account"), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deposit or
cause to be deposited in the Collection Account on a daily basis and in no
event later than two Business Days after receipt, as and when received or as
otherwise required hereunder, the following payments and collections received
or made by it on or subsequent to the Cut-off Date:
(i) all payments on account of principal, including
Principal Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of
the related Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Liquidation
Proceeds (other than proceeds collected in respect of any
particular REO Property and amounts paid by the Servicer in
connection with a purchase of Mortgage Loans and REO
Properties pursuant to Section 10.01);
(iv) any amounts required to be deposited pursuant
to Section 3.12 in connection with any losses realized on
Permitted Investments with respect to funds held in the
Collection Account and the Distribution Account;
(v) any amounts required to be deposited by the
Servicer pursuant to the second paragraph of Section 3.14(a)
in respect of any blanket policy deductibles;
(vi) any Purchase Price or Substitution Shortfall
Amount delivered to the Servicer; and
(vii) any Prepayment Premiums.
The foregoing requirements for deposit in the Collection Accounts
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
Prepayment Excess, prepayment charges that are not Prepayment Premiums,
assumption fees or other similar fees need not be deposited by the Servicer in
the Collection Account. In the event the Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Collection Account, any provision
herein to the contrary notwithstanding.
(b) On behalf of the Trust Fund, the Trustee shall establish and
maintain one or more accounts (such account or accounts, the "Distribution
Account"), held in trust for the benefit of the Certificateholders. On behalf
of the Trust Fund, the Servicer shall deliver to the Trustee in immediately
available funds for deposit in the Distribution Account on or before 5:00 p.m.
New York time (i) on the Servicer Remittance Date, that portion of the Total
Distribution Amount for the related Distribution Date then on deposit in the
Collection Account, and (ii) on each Business Day as of the commencement of
which the balance on deposit in the Collection Account exceeds $75,000
following any withdrawals pursuant to the next succeeding sentence, the amount
of such excess, but only if the Collection Account constitutes an Eligible
Account solely pursuant to clause (ii) of the definition of "Eligible
Account." If the balance on deposit in the Collection Account exceeds $75,000
as of the commencement of business on any Business Day and the Collection
Account constitutes an Eligible Account solely pursuant to clause (ii) of the
definition of "Eligible Account," the Servicer shall, on or before 5:00 p.m.
New York time on such Business Day, withdraw from the Collection Account any
and all amounts payable or reimbursable to the Depositor, the Servicer, the
Trustee or the Mortgage Loan Originator pursuant to Section 3.11 and shall pay
such amounts to the Persons entitled thereto.
(c) Funds in the Collection Account and the Distribution Account
may be invested in Permitted Investments in accordance with the provisions set
forth in Section 3.12. The Servicer shall give notice to the Trustee of the
location of the Collection Account maintained by it when established and prior
to any change thereof. The Trustee shall give notice to the Servicer and the
Depositor of the location of the Distribution Account when established and
prior to any change thereof.
(d) Funds held in the Collection Account at any time may be
delivered by the Servicer in immediately available funds to the Trustee for
deposit in the Distribution Account. In the event the Servicer shall deliver
to the Trustee for deposit in the Distribution Account any amount not required
to be deposited therein, it may at any time request that the Trustee withdraw
such amount from the Distribution Account and remit to it any such amount, any
provision herein to the contrary notwithstanding. In addition, the Servicer
shall deliver to the Trustee from time to time for deposit in the Distribution
Account the amounts set forth in clauses (i) through (vi) below:
i. any Advances, as required pursuant to Section 4.03;
ii. any amounts required to be deposited pursuant to Section
3.16(c) in connection with the purchase of any Mortgage
Loan;
iii. any amounts required to be deposited pursuant to Section
3.23(d) or (f) in connection with any REO Property;
iv. any amounts to be paid in connection with a purchase of
Mortgage Loans and REO Properties pursuant to Section
10.01;
v. any amounts required to be deposited pursuant to Section
3.24 in connection with any Prepayment Interest
Shortfalls;
vi. any Stayed Funds, as soon as permitted by the federal
bankruptcy court having jurisdiction in such matters; and
vii. any amounts required to be deposited in connection with
the waiver of any Prepayment Premium pursuant to Section
3.01.
(e) Promptly upon receipt of any Stayed Funds, whether from the
Servicer, a trustee in bankruptcy, or federal bankruptcy court or other
source, the Trustee shall deposit such funds in the Distribution Account,
subject to withdrawal thereof pursuant to Section 7.02(b) or as otherwise
permitted hereunder. In addition, the Trustee shall deposit in the
Distribution Account any amounts required to be deposited pursuant to Section
3.12 in connection with losses realized on Permitted Investments with respect
to funds held in the Distribution Account.
SECTION 3.11. Withdrawals from the Collection Account and
Distribution Account.
The Servicer shall, from time to time, make withdrawals from the
Collection Account for any of the following purposes or as described in
Section 4.03:
(i) to remit to the Trustee for deposit in the
Distribution Account the amounts required to be so remitted
pursuant to Section 3.10(b) or permitted to be so remitted
pursuant to the first sentence of Section 3.10(d);
(ii) subject to Section 3.16(d), to reimburse the
Servicer for Advances, but only to the extent of amounts
received which represent Late Collections (net of the
related Servicing Fees) of Monthly Payments on Mortgage
Loans with respect to which such Advances were made in
accordance with the provisions of Section 4.03;
(iii) subject to Section 3.16(d), to pay the
Servicer any unpaid Servicing Fees and reimburse the
Servicer any unreimbursed Servicing Advances with respect to
each Mortgage Loan, but only to the extent of any
Liquidation Proceeds and Insurance Proceeds received with
respect to such Mortgage Loan;
(iv) to pay to the Servicer as servicing
compensation (in addition to the Servicing Fee) on the
Servicer Remittance Date any interest or investment income
earned on funds deposited in the Collection Account;
(v) to pay to the Servicer, the Depositor or the
Mortgage Loan Originator, as the case may be, with respect
to each Mortgage Loan that has previously been purchased or
replaced pursuant to Section 2.03 or Section 3.16(c) all
amounts received thereon not included in the Purchase Price
or the Substitution Shortfall Amount;
(vi) to reimburse the Servicer for any Advance or
Servicing Advance previously made which the Servicer, as
applicable, has determined to be a Nonrecoverable Advance in
accordance with the provisions of Section 4.03;
(vii) to reimburse the Servicer, or the Depositor
for expenses incurred by or reimbursable to the Servicer, or
the Depositor, as the case may be, pursuant to Section 6.03;
(viii) to reimburse the Servicer, or the Trustee,
as the case may be, for expenses reasonably incurred in
respect of the breach or defect giving rise to the purchase
obligation under Section 2.03 or Section 2.04 of this
Agreement that were included in the Purchase Price of the
Mortgage Loan, including any expenses arising out of the
enforcement of the purchase obligation;
(ix) to pay, or to reimburse the Servicer for
advances in respect of, expenses incurred in connection with
any Mortgage Loan pursuant to Section 3.16(b); and
(x) to clear and terminate the Collection Account
pursuant to Section 10.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (ii), (iii), (iv), (v), (vi), (viii) and (ix)
above. The Servicer shall provide written notification to the Trustee, on or
prior to the next succeeding Servicer Remittance Date, upon making any
withdrawals from the Collection Account pursuant to subclauses (vi) and (vii)
above.
The Trustee shall withdraw from the Distribution Account and
reimburse the Servicer on each Distribution Date any interest or investment
income earned on funds deposited in the Distribution Account.
SECTION 3.12. Investment of Funds in the Investment Accounts.
(a) The Servicer may direct, by means of written directions
(which may be standing directions), any depository institution maintaining the
Collection Account and the Trustee may direct any depository institution
maintaining the Distribution Account (each, for purposes of this Section 3.12,
an "Investment Account"), to invest the funds in such Investment Account in
one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business Day
immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the Trustee is the obligor thereon, and (ii) no later than the date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement, if the Trustee is the obligor thereon. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee (in its capacity as such) or in the name of a nominee of the Trustee.
The Trustee shall be entitled to sole possession over each such investment and
the income thereon (except with respect to investment direction of funds held
in the Collection Account), and any certificate or other instrument evidencing
any such investment shall be delivered directly to the Trustee or its agent,
together with any document of transfer necessary to transfer title to such
investment to the Trustee or its nominee. In the event amounts on deposit in
an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Trustee shall at the direction of the Servicer:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on
the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to
the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand payment of all amounts due thereunder
promptly upon determination by a Responsible
Officer of the Trustee that such Permitted
Investment would not constitute a Permitted
Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) All income and gain realized from the investment of funds in
the Collection Account shall be for the benefit of the Servicer. The Servicer
shall deposit in the Collection Account the amount of any loss incurred in
respect of any such Permitted Investment made with funds in such account
immediately upon realization of such loss. All income and gain realized from
the investment of funds in the Distribution Account shall be for the benefit
of the Trustee. The Trustee shall deposit in the Distribution Account the
amount of any loss incurred on Permitted Investments in the Distribution
Account.
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may and, subject to Section 8.01 and Section
8.02(v), shall, at the written direction of the Servicer, take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
SECTION 3.13. [intentionally omitted]
SECTION 3.14. Maintenance of Hazard Insurance and Errors
and Omissions and Fidelity Coverage.
(a) The Servicer shall cause to be maintained for each Mortgaged
Property fire and hazard insurance with extended coverage as is customary in
the area where the Mortgaged Property is located in an amount which is at
least equal to the lesser of the current principal balance of such Mortgage
Loan and the amount necessary to fully compensate for any damage or loss to
the improvements which are a part of such property on a replacement cost
basis, in each case in an amount not less than such amount as is necessary to
avoid the application of any coinsurance clause contained in the related
hazard insurance policy. The Servicer shall also cause to be maintained fire
and hazard insurance on each REO Property with extended coverage as is
customary in the area where the Mortgaged Property is located in an amount
which is at least equal to the lesser of (i) the maximum insurable value of
the improvements which are a part of such property and (ii) the outstanding
principal balance of the related Mortgage Loan at the time it became an REO
Property. The Servicer will comply in the performance of this Agreement with
all reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts to be collected by the Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Mortgagor in
accordance with the procedures that the Servicer would follow in servicing
loans held for its own account, subject to the terms and conditions of the
related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11, if received in
respect of a Mortgage Loan, or in the REO Account, subject to withdrawal
pursuant to Section 3.23, if received in respect of an REO Property. Any cost
incurred by the Servicer in maintaining any such insurance shall not, for the
purpose of calculating distributions to Certificateholders, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any
time be in force and as shall require such additional insurance. If the
Mortgaged Property or REO Property is at any time in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards, the Servicer will cause to be maintained a flood insurance
policy in respect thereof. Such flood insurance shall be in an amount equal to
the lesser of (i) the unpaid principal balance of the related Mortgage Loan
and (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program (assuming that
the area in which such Mortgaged Property is located is participating in such
program).
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer having a General Policy Rating of A:X or better in
Best's Key Rating Guide insuring against hazard losses on all of the Mortgage
Loans, it shall conclusively be deemed to have satisfied its obligations as
set forth in the first two sentences of this Section 3.14, it being understood
and agreed that such policy may contain a deductible clause, in which case the
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with the first
two sentences of this Section 3.14, and there shall have been one or more
losses which would have been covered by such policy, deposit to the Collection
Account from its own funds the amount not otherwise payable under the blanket
policy because of such deductible clause. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Servicer agrees to
prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy in a timely fashion
in accordance with the terms of such policy.
(b) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of its respective obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of FNMA or FHLMC if it were the purchaser of the Mortgage Loans,
unless the Servicer, has obtained a waiver of such requirements from FNMA or
FHLMC. The Servicer shall each also maintain a fidelity bond in the form and
amount that would meet the requirements of FNMA or FHLMC, unless the Servicer,
has obtained a waiver of such requirements from FNMA or FHLMC. The Servicer
shall be deemed to have complied with this provision if an Affiliate of the
Servicer, has such errors and omissions and fidelity bond coverage and, by the
terms of such insurance policy or fidelity bond, the coverage afforded
thereunder extends to the Servicer. Any such errors and omissions policy and
fidelity bond shall by its terms not be cancelable without thirty days' prior
written notice to the Trustee.
SECTION 3.15. Enforcement of Due-On-Sale Clauses;
Assumption Agreements.
The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether
by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains or is to remain liable under the Mortgage Note and/or the
Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan under the "due-on-sale" clause, if any, applicable thereto; provided,
however, that the Servicer shall not exercise any such rights if prohibited by
law from doing so. If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, or if any of the other
conditions set forth in the proviso to the preceding sentence apply, the
Servicer will enter into an assumption and modification agreement from or with
the person to whom such property has been conveyed or is proposed to be
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. The Servicer is also authorized to enter into a substitution
of liability agreement with such person, pursuant to which the original
Mortgagor is released from liability and such person is substituted as the
Mortgagor and becomes liable under the Mortgage Note, provided that no such
substitution shall be effective unless such person satisfies the then current
underwriting criteria of the Servicer for mortgage loans similar to the
Mortgage Loans. In connection with any assumption or substitution, the
Servicer shall apply such underwriting standards and follow such practices and
procedures as shall be normal and usual in its general mortgage servicing
activities and as it applies to other mortgage loans owned solely by it. The
Servicer shall not take or enter into any assumption and modification
agreement, however, unless (to the extent practicable in the circumstances) it
shall have received confirmation, in writing, of the continued effectiveness
of any applicable hazard insurance policy. Any fee collected by the Servicer
in respect of an assumption or substitution of liability agreement will be
retained by the Servicer as additional servicing compensation. In connection
with any such assumption, no material term of the Mortgage Note (including but
not limited to the related Mortgage Rate and the amount of the Monthly
Payment) may be amended or modified, except as otherwise required pursuant to
the terms thereof. The Servicer shall notify the Trustee that any such
substitution or assumption agreement has been completed by forwarding to the
Trustee the executed original of such substitution or assumption agreement,
which document shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption
of a Mortgage Loan by operation of law or by the terms of the Mortgage Note or
any assumption which the Servicer may be restricted by law from preventing,
for any reason whatever. For purposes of this Section 3.15, the term
"assumption" is deemed to also include a sale (of the Mortgaged Property)
subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
SECTION 3.16. Realization Upon Defaulted Mortgage Loans.
(a) The Servicer shall use its best efforts, consistent with the
servicing standard set forth in Section 3.01, to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07. The Servicer shall be responsible for all costs and expenses
incurred by it in any such proceedings; provided, however, that such costs and
expenses will be recoverable as Servicing Advances by the Servicer as
contemplated in Section 3.11 and 3.23. The foregoing is subject to the
provision that, in any case in which Mortgaged Property shall have suffered
damage from an Uninsured Cause, the Servicer shall not be required to expend
its own funds toward the restoration of such property unless it shall
determine in its discretion that such restoration will increase the proceeds
of liquidation of the related Mortgage Loan after reimbursement to itself for
such expenses.
(b) Notwithstanding the foregoing provisions of this Section
3.16 or any other provision of this Agreement, with respect to any Mortgage
Loan as to which the Servicer has received actual notice of, or has actual
knowledge of, the presence of any toxic or hazardous substance on the related
Mortgaged Property, the Servicer shall not, on behalf of the Trustee, either
(i) obtain title to such Mortgaged Property as a result of or in lieu of
foreclosure or otherwise, or (ii) otherwise acquire possession of, or take any
other action with respect to, such Mortgaged Property, if, as a result of any
such action, the Trustee or the Certificateholders would be considered to hold
title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
from time to time, or any comparable law, unless the Servicer has also
previously determined and received the consent of the Class X
Certificateholder, based on its reasonable judgment and a prudent report
prepared by a Person who regularly conducts environmental audits using
customary industry standards, that:
(1) such Mortgaged Property is in compliance with
applicable environmental laws or, if not, that it would be
in the best economic interest of the Trust Fund to take such
actions as are necessary to bring the Mortgaged Property
into compliance therewith; and
(2) there are no circumstances present at such
Mortgaged Property relating to the use, management or
disposal of any hazardous substances, hazardous materials,
hazardous wastes or petroleum-based materials for which
investigation, testing, monitoring, containment, clean-up or
remediation could be required under any federal, state or
local law or regulation, or that if any such materials are
present for which such action could be required, that it
would be in the best economic interest of the Trust Fund to
take such actions with respect to the affected Mortgaged
Property.
The cost of the environmental audit report contemplated by this
Section 3.16 shall be advanced by the Servicer, subject to the Servicer's
right to be reimbursed therefor from the Collection Account as provided in
Section 3.11(ix), such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Collection Account received in
respect of the affected Mortgage Loan or other Mortgage Loans.
If the Servicer determines, as described above, that it is in the
best economic interest of the Trust Fund to take such actions as are necessary
to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials affecting any such Mortgaged
Property, then the Servicer shall take such action as it deems to be in the
best economic interest of such Trust Fund. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Servicer, subject
to the Servicer's right to be reimbursed therefor from the Collection Account
as provided in Section 3.11(ix), such right of reimbursement being prior to
the rights of Certificateholders to receive any amount in the Collection
Account received in respect of the affected Mortgage Loan or other Mortgage
Loans.
(c) The Servicer shall have the right to purchase from the Trust
Fund any defaulted Mortgage Loan that is 60 days or more delinquent at a price
equal to the Purchase Price. The Servicer shall not use any procedure in
selecting Mortgage Loans to be repurchased hereunder which is materially
adverse to the interests of the Certificateholders. The Purchase Price for any
Mortgage Loan purchased hereunder shall be deposited in the Collection
Account, and the Trustee, upon receipt of written certification from the
Servicer of such deposit, shall release or cause to be released to the
Servicer, as applicable, the related Mortgage File and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as the Servicer shall furnish and as shall be necessary to vest in
the Servicer, as applicable, title to any Mortgage Loan released pursuant
hereto.
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds or Liquidation Proceeds, in respect of any Mortgage Loan,
will be applied in the following order of priority: first, to reimburse the
Servicer for any related unreimbursed Servicing Advances and Advances,
pursuant to Section 3.11(ii) or (iii); second, to accrued and unpaid interest
on the Mortgage Loan, to the date of the Final Recovery Determination, or to
the Due Date prior to the Distribution Date on which such amounts are to be
distributed if not in connection with a Final Recovery Determination; and
third, as a recovery of principal of the Mortgage Loan. If the amount of the
recovery so allocated to interest is less than the full amount of accrued and
unpaid interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the Servicer as follows: first, concurrently and on a pro rata
basis to unpaid Servicing Fees; and second, to the balance of the interest
then due and owing. The portion of the recovery so allocated to unpaid
Servicing Fees shall be reimbursed to the Servicer pursuant to Section
3.11(iii). The portion of the recovery allocated to interest (net of unpaid
Servicing Fees) and the portion of the recovery allocated to principal of the
Mortgage Loan shall be applied as follows: first, to reimburse the Servicer
for any related unreimbursed Advances in accordance with Section 3.11(ii) and
any other amounts reimbursable to the Servicer pursuant to Section 3.11, and
second, as part of the amounts to be transferred to the Distribution Account
in accordance with Section 3.10(b).
SECTION 3.17. Trustee to Cooperate; Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full shall be escrowed in a manner
customary for such purposes, the Servicer will notify the Trustee by a
certification in the form of Exhibit D-2 (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.10 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File.
Upon receipt of such certification and request, the Trustee shall promptly
release the related Mortgage File to the Servicer. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the Collection Account or the Distribution Account.
From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan, including, for this purpose, collection under any
insurance policy relating to the Mortgage Loans, the Trustee shall, upon
request of the Servicer and delivery to the Trustee of a Request for Release
in the form of Exhibit D-l, release the related Mortgage File to the Servicer,
and the Trustee shall, at the direction of the Servicer, execute such
documents as shall be necessary to the prosecution of any such proceedings.
Such Request for Release shall obligate the Servicer to return each and every
document previously requested from the Mortgage File to the Trustee when the
need therefor by the Servicer no longer exists, unless the Mortgage Loan has
been liquidated and the Liquidation Proceeds relating to the Mortgage Loan
have been deposited in the Collection Account or the Mortgage File or such
document has been delivered to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged
Property either judicially or non-judicially, and the Servicer has delivered
to the Trustee a certificate of a Servicing Officer of the Servicer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer of the Servicer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be
released by the Trustee to the Servicer.
Upon written certification of a Servicing Officer of the Servicer,
the Trustee shall execute and deliver to the Servicer, any court pleadings,
requests for trustee's sale or other documents necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action
brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or rights provided by the Mortgage Note or Mortgage or otherwise available at
law or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the
lien of the Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale.
SECTION 3.18. Servicing Compensation.
As compensation for the activities of the Servicer, hereunder, the
Servicer shall be entitled to the Servicing Fee with respect to each Mortgage
Loan payable solely from payments of interest in respect of such Mortgage
Loan, subject to Section 3.24. In addition, the Servicer shall be entitled to
recover unpaid Servicing Fees out of Insurance Proceeds or Liquidation
Proceeds to the extent permitted by Section 3.11(iii) and out of amounts
derived from the operation and sale of an REO Property to the extent permitted
by Section 3.23. The right to receive the Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the
Servicer's responsibilities and obligations under this Agreement to the extent
permitted herein. The Servicer shall also be entitled to receive the Special
Servicer Fee, payable in accordance with Section 4.01.
Additional servicing compensation in the form of assumption fees,
late payment charges, Prepayment Excess, prepayment charges (other than
Prepayment Premiums) and other miscellaneous fees shall be retained by the
Servicer (subject to Section 3.24) only to the extent such fees or charges are
received by the Servicer. The Servicer shall also be entitled pursuant to
Section 3.11(iv) to withdraw from the Collection Account and pursuant to
Section 3.23(b) to withdraw from any REO Account, as additional servicing
compensation, interest or other income earned on deposits therein, subject to
Section 3.12 and Section 3.24. The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including premiums for the insurance required by Section 3.14, to the extent
such premiums are not paid by the related Mortgagors) and shall not be
entitled to reimbursement therefor except as specifically provided herein.
SECTION 3.19. Reports to the Trustee; Collection Account
Statements.
Not later than fifteen days after each Distribution Date, the
Servicer shall forward to the Trustee and the Depositor a statement prepared
by the institution at which the Collection Account is maintained setting forth
the status of the Collection Account as of the close of business on such
Distribution Date and showing, for the period covered by such statement, the
aggregate amount of deposits into and withdrawals from the Collection Account
of each category of deposit specified in Section 3.10(a) and each category of
withdrawal specified in Section 3.11. Copies of such statement shall be
provided by the Trustee to any Certificateholder and to any Person identified
to the Trustee as a prospective transferee of a Certificate, upon request at
the expense of the requesting party, provided such statement is delivered by
the Servicer to the Trustee.
SECTION 3.20. Statement as to Compliance.
The Servicer will deliver to, the Trustee and the Depositor not later
than 120 days following the end of each fiscal year, commencing in 2001, of
the Servicer, which as of the Closing Date ends on the last day in December,
an Officers' Certificate stating, as to each signatory thereof, that (i) a
review of the activities of the Servicer during the preceding year and of
performance under this Agreement has been made under such officers'
supervision and (ii) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and
the nature and status thereof. Copies of any such statement shall be provided
by the Trustee to any Certificateholder and to any Person identified to the
Trustee as a prospective transferee of a Certificate, upon request at the
expense of the requesting party, provided such statement is delivered by the
Servicer to the Trustee.
SECTION 3.21. Independent Public Accountants' Servicing
Report.
Not later than 120 days following the end of each fiscal year,
commencing in 2001, of the Servicer, the Servicer, at its expense, shall cause
a nationally recognized firm of independent certified public accountants to
furnish to the Servicer a report stating that (i) it has obtained a letter of
representation regarding certain matters from the management of the Servicer
which includes an assertion that the Servicer has complied with certain
minimum residential mortgage loan servicing standards, identified in the
Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the servicing of
residential mortgage loans during the most recently completed fiscal year and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the American Institute of Certified Public
Accountants, such representation is fairly stated in all material respects,
subject to such exceptions and other qualifications that may be appropriate.
Immediately upon receipt of such report, the Servicer shall furnish a copy of
such report to the Trustee and each Rating Agency. Copies of such statement
shall be provided by the Trustee to any Certificateholder upon request at the
Servicer's expense, provided that such statement is delivered by the Servicer
to the Trustee.
SECTION 3.22. Access to Certain Documentation.
The Servicer shall provide to the Office of Thrift Supervision, the
FDIC, and any other federal or state banking or insurance regulatory authority
that may exercise authority over any Certificateholder, access to the
documentation regarding the Mortgage Loans required by applicable laws and
regulations. Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Servicer designated by it. In addition, access to the documentation regarding
the Mortgage Loans will be provided to any Certificateholder, the Trustee and
to any Person identified to the Servicer, as a prospective transferee of a
Certificate, upon reasonable request during normal business hours at the
offices of the Servicer designated by it at the expense of the Person
requesting such access.
SECTION 3.23. Title, Management and Disposition of REO
Property.
(a) The deed or certificate of sale of any REO Property shall be
taken in the name of the Trustee, or its nominee, on behalf of the
Certificateholders. The Servicer, on behalf of the Trust Fund, shall either
sell any REO Property by the close of the third calendar year following the
calendar year in which the Trust Fund acquires ownership of such REO Property
for purposes of Section 860(a)(8) of the Code or request from the Internal
Revenue Service, more than 60 days before the day on which the three-year
grace period would otherwise expire an extension of the three-year grace
period, unless the Servicer had delivered to the Trustee an Opinion of
Counsel, addressed to the Trustee and the Depositor, to the effect that the
holding by the Trust Fund of such REO Property subsequent to three years after
its acquisition will not result in the imposition on any REMIC created
hereunder of taxes on "prohibited transactions" thereof, as defined in Section
860F of the Code, or cause any REMIC hereunder to fail to qualify as a REMIC
under Federal law at any time that any Certificates are outstanding. The
Servicer shall manage, conserve, protect and operate each REO Property for the
Certificateholders solely for the purpose of its prompt disposition and sale
in a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by any REMIC created hereunder of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code,
or any "net income from foreclosure property" which is subject to taxation
under the REMIC Provisions.
(b) The Servicer shall segregate and hold all funds collected
and received in connection with the operation of any REO Property separate and
apart from its own funds and general assets and shall establish and maintain
with respect to REO Properties an account held in trust for the Trustee for
the benefit of the Certificateholders (the "REO Account"), which shall be an
Eligible Account. The Servicer shall be permitted to allow the Collection
Account to serve as the REO Account, subject to separate ledgers for each REO
Property. The Servicer shall be entitled to retain or withdraw any interest
income paid on funds deposited in the REO Account.
(c) The Servicer shall have full power and authority, subject
only to the specific requirements and prohibitions of this Agreement, to do
any and all things in connection with any REO Property as are consistent with
the manner in which the Servicer manages and operates similar property owned
by the Servicer or any of its Affiliates, all on such terms and for such
period as the Servicer deems to be in the best interests of
Certificateholders. In connection therewith, the Servicer shall deposit, or
cause to be deposited, on a daily basis in the REO Account all revenues
received by it with respect to an REO Property and shall withdraw therefrom
funds necessary for the proper operation, management and maintenance of such
REO Property including, without limitation:
(i) all insurance premiums due and payable in
respect of such REO Property;
(ii) all real estate taxes and assessments in
respect of such REO Property that may result in the
imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain
such REO Property.
To the extent that amounts on deposit in the REO Account with respect to an
REO Property are insufficient for the purposes set forth in clauses (i)
through (iii) above with respect to such REO Property, the Servicer shall
advance from its own funds such amount as is necessary for such purposes if,
but only if, the Servicer would make such advances if the Servicer owned the
REO Property and if in the Servicer's judgment, the payment of such amounts
will be recoverable from the rental or sale of the REO Property.
Notwithstanding the foregoing, the Servicer shall not:
(i) permit the Trust Fund to enter into, renew or
extend any New Lease with respect to any REO Property, if
the New Lease by its terms will give rise to any income that
does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued
under any New Lease other than amounts that will constitute
Rents from Real Property;
(iii) authorize or permit any construction on any
REO Property, other than the completion of a building or
other improvement thereon, and then only if more than ten
percent of the construction of such building or other
improvement was completed before default on the related
Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) allow any Person to Directly Operate any REO
Property on any date more than 90 days after its date of
acquisition by the Trust Fund;
unless, in any such case, the Servicer has obtained an Opinion of Counsel,
provided to the Servicer and the Trustee, to the effect that such action will
not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code at any time that it is
held by the Trust Fund, in which case the Servicer may take such actions as
are specified in such Opinion of Counsel.
The Servicer may contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract
shall not be inconsistent herewith;
(ii) any such contract shall require, or shall be
administered to require, that the Independent Contractor pay
all costs and expenses incurred in connection with the
operation and management of such REO Property, including
those listed above and remit all related revenues (net of
such costs and expenses) to the Servicer as soon as
practicable, but in no event later than thirty days
following the receipt thereof by such Independent
Contractor;
(iii) none of the provisions of this Section
3.23(c) relating to any such contract or to actions taken
through any such Independent Contractor shall be deemed to
relieve the Servicer of any of its duties and obligations to
the Trustee on behalf of the Certificateholders with respect
to the operation and management of any such REO Property;
and
(iv) the Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing
all duties and obligations in connection with the operation
and management of such REO Property.
The Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Servicer by such Independent
Contractor, and nothing in this Agreement shall be deemed to limit or modify
such indemnification. The Servicer shall be solely liable for all fees owed by
it to any such Independent Contractor, irrespective of whether the Servicer's
compensation pursuant to Section 3.18 is sufficient to pay such fees.
(d) In addition to the withdrawals permitted under Section
3.23(c), the Servicer may from time to time make withdrawals from the REO
Account for any REO Property: (i) to pay itself unpaid Servicing Fees in
respect of the related Mortgage Loan; and (ii) to reimburse itself for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, the
Servicer shall withdraw from each REO Account maintained by it and deposit
into the Distribution Account in accordance with Section 3.10(d)(ii), for
distribution on the related Distribution Date in accordance with Section 4.01,
the income from the related REO Property received during the prior calendar
month, net of any withdrawals made pursuant to Section 3.23(c) or this Section
3.23(d).
(e) Subject to the time constraints set forth in Section
3.23(a), each REO Disposition shall be carried out by the Servicer at such
price and upon such terms and conditions as the Servicer shall deem necessary
or advisable, as shall be normal and usual in its general servicing
activities.
(f) The proceeds from the REO Disposition, net of any amount
required by law to be remitted to the Mortgagor under the related Mortgage
Loan and net of any payment or reimbursement to the Servicer as provided
above, shall be deposited in the Distribution Account in accordance with
Section 3.10(d)(ii) on the Servicer Remittance Date in the month following the
receipt thereof for distribution on the related Distribution Date in
accordance with Section 4.01. Any REO Disposition shall be for cash only
(unless changes in the REMIC Provisions made subsequent to the Startup Day
allow a sale for other consideration).
(g) The Servicer shall file information returns with respect to
the receipt of mortgage interest received in a trade or business, reports of
foreclosures and abandonments of any Mortgaged Property and cancellation of
indebtedness income with respect to any Mortgaged Property as required by
Sections 6050H, 6050J and 6050P of the Code, respectively. Such reports shall
be in form and substance sufficient to meet the reporting requirements imposed
by such Sections 6050H, 6050J and 6050P of the Code.
SECTION 3.24. Obligations of the Servicer in Respect of
Prepayment Interest Shortfalls.
The Servicer shall deliver to the Trustee for deposit into the
Distribution Account on or before 5:00 p.m. New York time on the Servicer
Remittance Date from its own funds an amount equal to the lesser of (i) the
aggregate of the Prepayment Interest Shortfalls for the related Distribution
Date resulting solely from Principal Prepayments received by the Servicer
during the related Collection Period and (ii) 50% of its aggregate Servicing
Fee for the most recently ended Collection Period. The Servicer shall not have
the right to reimbursement for any amounts remitted to the Trustee in respect
of Compensating Interest. The Servicer shall not be obligated to pay
Compensating Interest with respect to Relief Act Interest Shortfalls.
SECTION 3.25. [Reserved].
SECTION 3.26. Obligations of the Servicer in Respect of
Mortgage Rates and Monthly Payments.
In the event that a shortfall in any collection on or liability with
respect to any Mortgage Loan results from or is attributable to adjustments to
Mortgage Rates, Monthly Payments or Stated Principal Balances that were made
by the Servicer in a manner not consistent with the terms of the related
Mortgage Note and this Agreement, the Servicer, upon discovery or receipt of
notice thereof, immediately shall deliver to the Trustee for deposit in the
Distribution Account from its own funds the amount of any such shortfall and
shall indemnify and hold harmless the Trust Fund, the Trustee, the Depositor
and any successor servicer in respect of any such liability. Such indemnities
shall survive the termination or discharge of this Agreement.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, based solely on the Remittance
Report, the Trustee (or the Paying Agent on behalf of the Trustee) shall
withdraw from the Distribution Account to the extent funds are available
therein the Total Distribution Amount for such date, shall allocate such
amount to the interests issued in respect of REMIC 1 and REMIC 2, and shall
distribute such amount as specified in this Section; provided, however, that
on each Distribution Date, the Trustee shall first distribute the Prepayment
Premiums received during the related Collection Period to the Class X
Certificateholder as described in clause (d) below . Such distributions shall
be made by check mailed to each Certificateholder's address as it appears on
the Certificate Register of the Certificate Registrar (which shall initially
be the Trustee) or, upon written request made to the Trustee at least three
Business Days prior to the related Record Date by any Certificateholder owning
an aggregate initial Certificate Principal Amount of at least $2,500,000, or,
in the case of a Class X Certificate, a Percentage Interest of 100%, by wire
transfer in immediately available funds to an account specified in the request
and at the expense of such Certificateholder; provided, however, that the
final distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at the Corporate Trust Office.
Wire transfers will be made at the expense of the Holder requesting such wire
transfer by deducting a wire transfer fee from the related distribution.
The Interest Remittance Amount shall be distributed in the
following order of priority:
(i) First, to the Trustee, the Trustee Fee and any
amounts reimbursable to the Trustee pursuant to Section
11.01(c);
(ii) Second, to the Holders of the Class A
Certificates, the related Accrued Certificate Interest plus
the Class A Carry Forward Amount;
(iii) Third, to the extent of the Interest
Remittance Amount then remaining, to the Holders of
the Class M-1 Certificates, the related Accrued Certificate
Interest;
(iv) Fourth, to the extent of the Interest
Remittance Amount then remaining, to the Holders of the
Class M-2 Certificates, the related Accrued Certificate
Interest;
(v) Fifth, to the extent of the Interest Remittance
Amount then remaining, to the Holders of the Class B
Certificates, the related Accrued Certificate Interest;
(vi) Sixth, the amount, if any, of the Interest
Remittance Amount remaining after application of such amount
in accordance with the priorities set forth above is the
"Monthly Excess Interest Amount" for such Distribution Date
and such Monthly Excess Interest Amount will be included as
part of the Monthly Excess Cash Flow Amount and shall be
applied as set forth in Section 4.01 (c).
(b) The Principal Remittance Amount for such Distribution Date
shall be distributed in the following order of priority:
(i) On each Distribution Date (a) before the Stepdown Date
or (b) with respect to which a Trigger Event is in effect, Holders of
the Class A Certificates will be entitled to receive payment of 100%
of the Principal Distribution Amount until the Class Certificate
Balance for the Class A Certificates has been reduced to zero.
(ii) Notwithstanding the provisions of Section 4.01(b)(i),
in the event that, on any Distribution Date on or after the Stepdown
Date in which a Trigger Event is in effect: (a), the Holders of the
Class A Certificates will be entitled to receive payment of 100% of
the Principal Distribution Amount until the Class Certificate Balance
of the Class A Certificates has been reduced to zero; (b) thereafter,
if the Certificate Principal Balance of the Class A Certificates is
reduced to zero, the Holders of the Class M-1 Certificates will be
entitled to receive payment of 100% of the Principal Distribution
Amount until the Class Certificate Balance of the Class M-1
Certificates has been reduced to zero; (c) thereafter, if the Class
M-1 Certificate Principal Balance is reduced to zero, the Holders of
the Class M-2 Certificates will be entitled to receive payments of
100% of the Principal Distribution Amount until the Class Certificate
Balance of the Class M-2 Certificates has been reduced to zero; (d)
if the Class M-2 Certificate Principal Balance is reduced to zero,
the Holders of the Class B Certificates will be entitled to receive
100% of the Principal Distribution Amount until the Class Certificate
Balance of the Class B Certificates has been reduced to zero; and (e)
if the Class B Certificate Principal Balance is reduced to zero, the
Holders of the Class X Certificates will be entitled to receive 100%
of the Principal Distribution Amount until the Class Certificate
Balance of the Class X Certificates has been reduced to zero.
(iii) On each Distribution Date (a) on or after the Stepdown
Date and (b) as long as a Trigger Event is not in effect, the Holders
of the Offered Certificates will be entitled to receive payments of
principal, in the order of priority, in the amounts set forth below
and to the extent of the Principal Distribution Amount as follows:
(A) First, the lesser of (x) the Principal
Distribution Amount and (y) the Class A Principal Distribution
amount will be distributed to the Class A Certificates until the
Class Certificate Balance thereof has been reduced to zero;
(B) Second, the lesser of (x) the excess of (i)
the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificates in clause First above
and (y) the Class M-1 Principal Distribution Amount will be
distributed to the Class M-1 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(C) Third, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the sum of the amount
distributed to the Class A Certificates in clause First above
and the amount distributed to the Class M-1 Certificates in
clause Second above and (y) the Class M-2 Principal Distribution
Amount will be distributed to the Class M-2 Certificates, until
the Class Certificate Balance thereof has been reduced to zero;
(D) Fourth, the lesser of (x) the excess of (i)
the Principal Distribution Amount over (ii) the sum of the
amount distributed to the Class A Certificates pursuant to
clause First above, the amount distributed to the Class M-1
Certificates pursuant to clause Second above and the amount
distributed to the Class M-2 Certificates pursuant to clause
Third above and (y) the Class B Principal Distribution Amount
will be distributed to the Class B Certificates, until the Class
Certificate Balance thereof has been reduced to zero; and
(E) Fifth, any amount of the Principal Remittance
Amount remaining after making all of the distributions in
clauses First, Second, Third, Fourth and Fifth above will be
included as part of the Monthly Excess Cashflow Amount and will
be applied as set forth in Section 4.01(c).
(c) On any Distribution Date, Monthly Excess Cashflow Amount is
required to be applied in the following order of priority on such Distribution
Date:
(i) to fund the Class A Interest Carry Forward
Amount, if any;
(ii) to fund the Extra Principal Distribution
Amount, if any, for such Distribution Date;
(iii) to fund the Class M-1 Interest Carry Forward
Amount, if any;
(iv) to fund the Class M-1 Realized Loss
Amortization Amount for such Distribution Date;
(v) to fund the Class M-2 Interest Carry Forward
Amount, if any.
(vi) to fund the Class M-2 Realized Loss
Amortization Amount for such Distribution Date;
(vii) to fund the Class B Interest Carry Forward
Amount, if any;
(viii) to fund the Class B Realized Loss
Amortization Amount for such Distribution Date;
(ix) to the Basis Risk Reserve Fund, and then from
the Basis Risk Reserve Fund to the Class A, Class M-1, Class
M-2 and Class B Certificates, in that order, from the Basis
Risk Reserve Fund, in an amount equal to the unpaid amount
of any Basis Risk Shortfall for such date and any Unpaid
Basis Risk Shortfall for such date; notwithstanding any
provision herein to the contrary, no amounts received in
respect of prepayment premiums and penalties shall be
distributed in respect of this Section 4.01(c)(ix);
(x) to pay to the Servicer all current and due and
owing Special Servicer Fees;
(xi) to pay any amounts owed to the Trustee
pursuant to the indemnification in Section 8.05;
(xii) to pay to a successor Servicer or the
Trustee, as applicable, any Transition Costs;
(xiii) to the Basis Risk Reserve Fund, an amount
equal to the Required Reserve Fund Deposit;
(xiv) to the Basis Risk Reserve Fund, and then from
the Basis Risk Reserve Fund to the Class BB Certificates,
(A) an amount equal to one month's interest at the
Pass-through Rate for such Class on the Class BB Notional
Amount and (B) any remaining Monthly Excess Cashflow Amount
to reduce the Class BB Notional Amount, until the Class BB
Notional Amount has been reduced to zero;
(xv) to the Class X Certificate, the Class X
Distributable Amount for such Distribution Date, together
with any amounts withdrawn from the Basis Risk Reserve Fund
for distribution to the Class X Certificates pursuant to
Section 4.08(c) and (d) on such date;
(xvi) to the Holders of the Class R Certificates,
any amount remaining on such date after application pursuant
to clauses (i) through (xiv) above.
In the case of the distributions described in clauses (ix), (xiii)
and (xiv) above, the Trustee shall account for such distributions as having
been made first to the Class X Certificates and then paid by the Class X
Certificateholders to the Basis Risk Reserve Fund.
(d) On each Distribution Date, all Prepayment Premiums shall be
allocable to the Class X Certificates (but payable to the Class BB
Certificateholders for so long as the Class BB Certificates are outstanding)
and treated as additional interest distributable with respect to the Class X
Certificates on such Distribution Date.
(e) On each Distribution Date, Net Prepayment Interest
Shortfalls shall be allocated ratably among the Class A, Class M-1 and the
Class M-2 and Class B Certificates and the Class C Regular Interests in
proportion to their rights to receive interest on such Distribution Date, and
Prepayment Premiums shall be allocated to the Class X Certificates and treated
as additional interest distributable with respect to the Class X Certificates
on such Distribution Date. Prepayment Premiums will be deposited in the Basis
Risk Reserve Fund to the extent necessary to fulfill the Trust Fund's
obligations under Section 4.01(c)(xi) above. Prepayment Premiums will not be
deposited in the Basis Risk Reserve Fund to fulfill the Trust Fund's
obligations under Sections 4.01(c)(ix) and (x) above.
(f) Principal payments, Realized Losses and Prepayment Interest
Shortfalls not covered by Compensating Interest shall be allocated to the
Class T1-1 Interest in the same amount as principal payments, Realized Losses
and Net Prepayment Interest Shortfalls are allocated to the Class A
Certificates. Principal payments, Realized Losses and Net Prepayment Interest
Shortfalls shall be allocated to the Class T1-2 Interest in the same amount as
principal payments, Realized Losses and Net Prepayment Interest Shortfalls are
allocated to the Class M-1 Certificates. Principal payments, Realized Losses
and Net Prepayment Interest Shortfalls shall be allocated to the Class T1-3
Interest in the same amount as principal payments, Realized Losses and Net
Prepayment Interest Shortfalls are allocated to the Class M-2 Certificates.
Principal payments, Realized Losses and Net Prepayment Interest Shortfalls
shall be allocated to the Class T1-4 Interest in the same amount as principal
payments, Realized Losses and Net Prepayment Interest Shortfalls are allocated
to the Class B Certificates. Principal payments, Realized Losses and Net
Prepayment Interest Shortfalls shall be allocated to the Class T1-5 Interest
in the same amount as principal payments, Realized Losses and Net Prepayment
Interest Shortfalls are allocated to the Class C Interests.
SECTION 4.02. Statements to Certificateholders.
On each Distribution Date, based upon information provided to it by
the Servicer in the Remittance Report (upon which the Trustee may conclusively
rely) and the calculations required to be made by the Trustee, the Trustee
shall prepare and forward by mail to each Holder of the Offered Certificates,
a statement as to the distributions made on such Distribution Date setting
forth:
1. The amount of the distribution made on such Distribution Date to the
Holders of the Class A Certificates allocable to principal and to
interest.
2. The Class A Interest Carry Forward Amount and the Basis Risk
Shortfall for such Class and Distribution Date.
3. The amount of the distribution made on such Distribution Date to the
Holders of the Class M-1 Certificates allocable to principal and to
interest.
4. The Class M-1 Interest Carry Forward Amount and the Basis Risk
Shortfall for such Class and Distribution Date.
5. The Class M-1 Unpaid Realized Loss Amount for such Distribution
Date.
6. The Class M-1 Applied Realized Loss Amount for such Distribution
Date.
7. The Class M-1 Applied Realized Loss Amortization Amount for such
Distribution Date.
8. The amount of the distribution made on such Distribution Date to the
Holders of the Class M-2 Certificates allocable to principal and to
interest.
9. The Class M-2 Interest Carry Forward Amount and the Basis Risk
Shortfall for such Class and Distribution Date.
10. The Class M-2 Unpaid Realized Loss Amount for such Distribution
Date.
11. The Class M-2 Applied Realized Loss Amount for such Distribution
Date.
12. The Class M-2 Applied Realized Loss Amortization Amount for such
Distribution Date.
13. The amount of the distribution made on such Distribution Date to the
Holders of the Class B Certificates allocable to principal and to
interest.
14. The Class B Interest Carry Forward Amount and the Basis Risk
Shortfall for such Class and Distribution Date.
15. The Class B Unpaid Realized Loss Amount for such Distribution Date.
16. The amount of the distribution made on such Distribution Date to the
Holders of the Class BB Certificates allocable to principal and to
interest.
17. The Class B Applied Realized Amortization Amount for such
Distribution Date.
18. The Class X Distributable Amount for such Distribution Date.
19. The Unpaid Realized Loss Amount for each applicable Class of
Certificates for such Distribution Date.
20. The Applied Realized Loss Amount for each applicable Class of
Certificates for such Distribution Date.
21. The Interest Remittance Amount for such Distribution Date.
22. The Principal Remittance Amount for such Distribution Date.
23. The Monthly Excess Cash Flow Amount for such Distribution Date.
24. The Extra Principal Distribution Flow Amount for such Distribution
Date.
25. The Monthly Excess Interest Amount for such Distribution Date.
26. The Targeted Overcollateralization for such Distribution Date.
27. The Overcollateralization Amount for such Distribution Date.
28. The Overcollateralization Deficiency for such Distribution Date.
29. The Overcollateralization Release Amounts for such Distribution
Date.
30. The aggregate amount of servicing compensation received by the
Servicer during the related Collection Period and such other
customary information as the Trustee deems necessary or desirable,
or which a Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns
31. The aggregate amount of Advances for such Distribution Date.
32. The aggregate Stated Principal Balance of the Mortgage Loans and any
REO Properties at the close of business on such Distribution Date.
33. The number, aggregate principal balance, weighted average remaining
term to maturity and weighted average Mortgage Rate of the Mortgage
Loans as of the related Due Date.
34. The number and aggregate unpaid principal balance of Mortgage Loans
(a) 30 days past due, (b) 60 days past due, (c) 90 or more days past
due, (d) as to which foreclosure proceedings have been commenced and
(e) as to which the related Mortgagor has filed for bankruptcy.
35. With respect to any Mortgage Loan that became an REO Property during
the preceding calendar month, the loan number of such Mortgage Loan
from the Mortgage Loan Schedule, the unpaid principal balance and
the Stated Principal Balance of such Mortgage Loan as of the date it
became an REO Property.
36. The book value of any REO Property as of the close of business on
the last Business Day of the calendar month preceding the
Distribution Date.
37. The aggregate amount of Prepayment Premiums collected during the
related Collection Period.
38. The aggregate amount of Principal Prepayments made during the
related Collection Period.
39. The aggregate amount of Realized Losses incurred during the related
Collection Period.
40. The aggregate amount of Extraordinary Trust Fund Expenses withdrawn
from the Collection Account or the Distribution Account for such
Distribution Date.
41. The Class Certificate Balance of each Class of Certificates, after
giving effect to the distributions, and allocations of Applied
Realized Losses, made on such Distribution Date.
42. The Certificate Factor for each such Class of Certificates
applicable to such Distribution Date.
43. The aggregate amount of any Prepayment Interest Shortfalls for such
Distribution Date, to the extent not covered by payments by the
Servicer pursuant to Section 3.24.
44. The aggregate amount of Relief Act Interest Shortfalls for such
Distribution Date.
45. The Pass-Through Rate applicable for each Class of the Offered
Certificates for such Distribution Date and the immediately
succeeding Distribution Date.
46. The three-month rolling average of 60+ Day Delinquent Loans.
47. The unpaid principal balance of each Mortgage Loan (a) which has
been substituted pursuant to Section 2.03, (b) purchased pursuant to
Section 2.03, 3.16 or 10.01 or (c) for which a Liquidation Event has
occurred.
48. Whether a Servicing Termination Trigger has occurred.
49. The amount on deposit in the Basis Risk Reserve Fund on such
Distribution Date after giving effect to distibutions therefrom on
such Distribution Date and the amount of any transfer of funds
to/from the Basis Risk Reserve Fund.
In the case of information furnished pursuant to subclauses 1, 3, 8,
13, 16 and 18 above, the amounts shall be expressed as a dollar amount per
Single Certificate of the relevant Class.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Regular Certificate a statement containing the
information set forth in subclauses 1, 3, 8, 13, 16 and 18 above for the
related Certificate as applicable, aggregated for such calendar year or
applicable portion thereof during which such person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee or the Servicer pursuant to any requirements of the Code as from time
to time are in force.
On each Distribution Date, the Trustee shall forward to the
Depositor, to each Holder of a Residual Certificate and to the Servicer, a
copy of the reports forwarded to each Class of Certificateholder on such
Distribution Date and a statement setting forth the amounts, if any, actually
distributed with respect to the Residual Certificates, respectively, on such
Distribution Date.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Residual Certificate a statement setting forth
the amount, if any, actually distributed with respect to the Residual
Certificates, as appropriate, aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder.
On each Distribution Date, the Trustee shall provide Bloomberg
Financial Markets, L.P. ("Bloomberg") Cusip Level Factors for each Class of
Offered Certificates as of such Distribution Date, using a format and media
mutually acceptable to the Trustee and Bloomberg. In connection with providing
the information specified in this Section 4.02 to Bloomberg, the Trustee and
any director, officer, employee or agent of the Trustee shall be indemnified
and held harmless by the Servicer, to the extent and in the manner provided in
Section 8.05. The Trustee will also make such reports available each month to
each party referred to in this paragraph via the Trustee's website. The
Trustee's website can be accessed at http://www.chase.com/sfa or at such other
site as the Trustee may designate from time to time. The Trustee may fully
rely upon and shall have no liability with respect to information provided by
the Servicer.
SECTION 4.03. Remittance Reports; Advances.
(a) On the second Business Day following each Determination Date
but in no event less than four Business Days prior to the related Distribution
Date, the Servicer shall deliver to the Trustee by telecopy (or by such other
means as the Servicer and the Trustee may agree from time to time) a
Remittance Report with respect to the related Distribution Date. On the same
date, the Servicer shall forward to the Trustee by overnight mail or other
electronic means as may be agreed to by the Trustee and the Servicer a
computer readable magnetic tape or diskette containingthe information set
forth in such Remittance Report with respect to the related Distribution Date.
Not later than the close of business New York time on the Servicer Remittance
Date, the Servicer shall deliver or cause to be delivered to the Trustee in
addition to the information provided on the Remittance Report, such other
information reasonably available to it with respect to the Mortgage Loans as
the Trustee may reasonably require to perform the calculations necessary to
make the distributions contemplated by Section 4.01 and to prepare the
statements to Certificateholders contemplated by Section 4.02. The Trustee
shall not be responsible to recompute, recalculate or verify any information
provided to it by the Servicer.
(b) The amount of Advances to be made by the Servicer for any
Distribution Date shall equal, subject to Section 4.03(d), the sum of (i) the
aggregate amount of Monthly Payments (with each interest portion thereof net
of, the related Servicing Fee), due during the related Collection Period in
respect of the Mortgage Loans, which Monthly Payments were delinquent as of
the close of business on the related Servicer Remittance Date and (ii) with
respect to each REO Property, which REO Property was acquired during or prior
to the related Collection Period and as to which REO Property an REO
Disposition did not occur during the related Collection Period, an amount
equal to the excess, if any, of the REO Imputed Interest on such REO Property
for the most recently ended calendar month, over the net income from such REO
Property transferred to the Distribution Account pursuant to Section 3.23 for
distribution on such Distribution Date.
On or before 5:00 p.m. New York time on the Servicer Remittance Date,
the Servicer shall remit in immediately available funds to the Trustee for
deposit in the Distribution Account an amount equal to the aggregate amount of
Advances, if any, to be made in respect of the Mortgage Loans and REO
Properties for the related Distribution Date from its own funds. The Trustee
will provide notice to the Servicer by telecopy by the close of business on
any Servicer Remittance Date in the event that the amount remitted by the
Servicer to the Trustee on such date is less than the Advances required to be
made by the Servicer for the related Distribution Date.
In the event that the Servicer fails for any reason to make an
Advance required to be made pursuant to Section 4.03 on or before the Servicer
Remittance Date, the Trustee shall, on or before the related Distribution
Date, deposit in the Distribution Account an amount equal to the excess of (a)
Advances required to be made by the Servicer that would have been deposited in
such Distribution Account over (b) the amount of any Advances made by the
Servicer with respect to such Distribution Date; provided, however, that the
Trustee shall be required to make such Advance only if it is not prohibited by
law from doing so and it has determined that such Advance would be recoverable
from amounts to be received with respect to such Mortgage Loan, including late
payments, Liquidation Proceeds, Insurance Proceeds, or otherwise. The Trustee
shall be entitled to be reimbursed from the Distribution Account for Advances
made by it pursuant to this Section 4.03 as if it were the Servicer.
(c) The obligation of the Servicer to make such Advances is
mandatory, notwithstanding any other provision of this Agreement but subject
to (d) below, and, with respect to any Mortgage Loan or REO Property, shall
continue until a Final Recovery Determination in connection therewith or the
removal thereof from the Trust Fund pursuant to any applicable provision of
this Agreement, except as otherwise provided in this Section.
(d) Notwithstanding anything herein to the contrary, no Advance
or Servicing Advance shall be required to be made hereunder by the Servicer if
such Advance or Servicing Advance would, if made, constitute a Nonrecoverable
Advance. The determination by the Servicer that it has made a Nonrecoverable
Advance or that any proposed Advance or Servicing Advance, if made, would
constitute a Nonrecoverable Advance, shall be evidenced by an Officers'
Certificate of the Servicer, as applicable, delivered to the Depositor and the
Trustee.
SECTION 4.04. Allocation of Realized Losses.
(a) Prior to each Determination Date, the Servicer shall
determine as to each Mortgage Loan and REO Property: (i) the total amount of
Realized Losses, if any, incurred in connection with any Final Recovery
Determinations made during the related Collection Period; and (ii) the
respective portions of such Realized Losses allocable to interest and
allocable to principal. Prior to each Determination Date, the Servicer shall
also determine as to each Mortgage Loan: (i) the total amount of Realized
Losses, if any, incurred in connection with any Deficient Valuations made
during the related Collection Period; and (ii) the total amount of Realized
Losses, if any, incurred in connection with Debt Service Reductions in respect
of Monthly Payments due during the related Collection Period. The information
described in the two preceding sentences that is to be supplied by the
Servicer shall be set forth in the related Remittance Report.
(b) If, after giving effect to the distribution of the Principal
Distribution Amount on any Distribution Date the aggregate Class Certificate
Balance of the Offered Certificates exceeds the Pool Principal Balance as of
the end of the related Collection Period, such excess will be allocated
against the Class B, Class M-2 and Class M-1 Certificates, in that order and
until the respective Class Certificate Balances thereof are reduced to zero.
Any allocation of such excess in reduction of a Class Certificate Balance is
referred to as an "Applied Realized Loss Amount." Any such reduction of a
Class Certificate Balance will not be reversed or reinstated. However, on
future Distribution Dates, Certificateholders of the related Class may receive
amounts in respect of prior reductions in the related Class Certificate
Balances as set forth in Section 4.01(c).
All Realized Losses and all other losses allocated to a Class of Certificates
hereunder will be allocated among the Certificates of such Class in proportion
to the Percentage Interests evidenced thereby.
SECTION 4.05. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event
the Trustee does withhold 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 Certificateholders.
SECTION 4.06. [Reserved]
SECTION 4.07. SEC Reporting.
Within 15 days after each Distribution Date, the Trustee shall file
with the Securities Exchange Commission, via the Electronic Data Gathering and
Retrieval System, a Form 8-K with a copy of the statement to
Certificateholders for such Distribution Date delivered pursuant to Section
4.02 included as an exhibit thereto. Prior to March 30, 2001, the Trustee
shall file a Form 10-K in substance conforming to the Depositor's no-action
letter and Form 15D (if applicable) with respect to the Trust Fund. The
Depositor hereby grants to the Trustee a limited power of attorney to execute
and file each such Form 8-K on behalf of the Depositor. Such power of attorney
shall continue until the earlier of (i) receipt by the Trustee from the
Depositor of written termination of such power of attorney and (ii) the
termination of the Trust Fund. At least one Business Day prior to filing any
Form 8-K or Form 10-K pursuant to this Section 4.07, the Trustee shall deliver
a copy of such Form 8-K or Form 10-K, as the case may be, to the Depositor.
SECTION 4.08 Basis Risk Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and
maintain in its name, in trust for the benefit of the holders of the Class A,
Class M-1, Class M-2 and Class B Certificates, the Basis Risk Reserve Fund.
The Basis Risk Reserve Fund shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled
with, any other moneys, including, without limitation, other moneys of the
Trustee held pursuant to this Agreement.
(b) On each Distribution Date, the Trustee shall transfer the
Required Reserve Fund Deposit from the Distribution Account to the Basis Risk
Reserve Fund pursuant to Section 4.01(c)(xiii). The Trustee shall make
withdrawals from the Basis Risk Reserve Fund to make distributions pursuant to
Sections 4.01(c)(ix) and (xiv).
(c) Funds in the Basis Risk Reserve Fund may be invested in
Permitted Investments. Any earnings on such amounts shall be distributed to
the Class X Certificate pursuant to Section 4.01(c)(xiv). The Class X
Certificate shall evidence ownership of the Basis Risk Reserve Fund for
federal income tax purposes and the Holder thereof shall direct the Trustee,
in writing, as to investment of amounts on deposit therein.
(d) Upon termination of the Trust Fund, any amounts remaining in
the Basis Risk Reserve Fund shall be distributed to the Class X
Certificateholder pursuant to Section 4.01(c)(xv).
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates in the aggregate will represent the entire
beneficial ownership interest in the Mortgage Loans and all other assets
included in the Trust Fund. At the Closing Date, the Class Certificate Balance
of the Offered Certificates will equal 100% of the aggregate principal balance
of the Mortgage Loans in the Mortgage Pool as of the Cut-off Date.
The Certificates will be substantially in the forms annexed hereto as
Exhibits A-1 through A-6. The Certificates of each Class will be issuable in
registered form only, in denominations of authorized Percentage Interests as
described in the definition thereof. Each Certificate will share ratably in
all rights of the related Class.
Upon original issue, the Certificates shall be executed and delivered
by the Trustee and the Trustee shall cause the Certificates to be
authenticated by the Certificate Registrar to or upon the order of the
Depositor. The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized signatory. Certificates bearing the
manual or facsimile signatures of individuals who were at any time 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 herein executed by the Certificate Registrar by manual signature, and
such certificate of authentication 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) Each Class of Offered Certificates shall initially be issued
as one or more Certificates registered in the name of the Depository or its
nominee and, except as provided below, registration of such Certificates may
not be transferred by the Trustee except to another Depository that agrees to
hold such Certificates for the respective Certificate Owners with Ownership
Interests therein. The Certificate Owners shall hold their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided below, shall not be
entitled to definitive, fully registered Certificates ("Definitive
Certificates") in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by
the Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
in the Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
The Trustee, the Servicer, and the Depositor may for all purposes
(including the making of payments due on the Book-Entry Certificates) deal
with the Depository as the authorized representative of the Certificate Owners
with respect to the Book-Entry Certificates for the purposes of exercising the
rights of Certificateholders hereunder. The rights of Certificate Owners with
respect to the Book-Entry Certificates shall be limited to those established
by law and agreements between such Certificate Owners and the Depository
Participants and brokerage firms representing such Certificate Owners.
Multiple requests and directions from, and votes of, the Depository as Holder
of the Book-Entry Certificates with respect to any particular matter shall not
be deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
If (i)(A) the Depositor or the Depository advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (B) the Depositor is unable to locate
a qualified successor, (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Depository or (iii) after the occurrence of a Servicing Termination Event,
Certificate Owners representing in the aggregate not less than 51% of the
Ownership Interests of the Book-Entry Certificates advise the Trustee through
the Depository, in writing, that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Certificate
Owners, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration
of transfer, the Trustee shall issue the Definitive Certificates. Such
Definitive Certificates will be issued in minimum denominations of $100,000,
except that any beneficial ownership that was represented by a Book-Entry
Certificate in an amount less than $100,000 immediately prior to the issuance
of a Definitive Certificate shall be issued in a minimum denomination equal to
the amount represented by such Book-Entry Certificate. None of the Depositor,
the Servicer or the Trustee shall be liable for any delay in the delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates
all references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trustee, to
the extent applicable with respect to such Definitive Certificates, and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the provisions of
Section 8.11 a Certificate Register for the Certificates in which, subject to
such reasonable regulations as it may prescribe, the Trustee shall provide for
the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee will initially serve as
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Certificate
Registrar may appoint, by a written instrument delivered to the Servicer and
the Depositor, any other bank or trust company to act as Certificate Registrar
under such conditions as the predecessor Certificate Registrar may prescribe,
provided that the predecessor Certificate Registrar shall not be relieved of
any of its duties or responsibilities hereunder by reason of such appointment.
If the Trustee shall at any time not be the Certificate Registrar, the Trustee
shall have and maintain the right to inspect the Certificate Register or to
obtain a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in
the Certificate Register.
(b) No transfer of a Class BB Certificate shall be made to a
non-United States person and no transfer of any Class BB Certificate, Class X
Certificate or Residual Certificate shall be made unless that transfer is made
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and effective registration or qualification
under applicable state securities laws, or is made in a transaction that does
not require such registration or qualification. In the event that such a
transfer of a Class BB Certificate, a Class X Certificate or a Residual
Certificate is to be made without registration or qualification, the Trustee
and the Certificate Registrar shall each require receipt of: (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Certificateholder desiring to effect the
transfer and from such Certificateholder's prospective transferee,
substantially in the forms attached hereto as Exhibit E; and (ii) in all other
cases, an Opinion of Counsel satisfactory to it that such transfer may be made
without such registration under the 1933 Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor or the Trustee in its
capacity as such), together with copies of the written certification(s) of the
Certificateholder desiring to effect the transfer and/or such
Certificateholder's prospective transferee upon which such Opinion of Counsel
is based, if any; provided, however, that no such opinion shall be required in
connection with the transfers effected on the Closing Date. None of the
Depositor, the Certificate Registrar or the Trustee is obligated to register
or qualify the Residual Certificates under the 1933 Act or any other
securities laws or to take any action not otherwise required under this
Agreement to permit the transfer of such Certificates without registration or
qualification. Any Certificateholder desiring to effect the transfer of a
Class BB Certificate, a Class X or a Residual Certificate shall, and does
hereby agree to, indemnify the Trustee, the Depositor, the Certificate
Registrar and the Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
(c) No transfer of a Residual Certificate or any interest
therein shall be made to (i) any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh
plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code
(each, a "Plan") or (ii) any Person who is directly or indirectly purchasing
the Residual Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan, unless the Trustee and the
Certificate Registrar are provided with a certification of facts or an Opinion
of Counsel which establishes to the satisfaction of each that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or cause any of the Trustee, the Certificate Registrar or the Servicer to
be deemed a fiduciary of such Plan or result in the imposition of an excise
tax under Section 4975 of the Code. In the absence of its having received the
certification of facts or Opinion of Counsel contemplated by the preceding
sentence, the Trustee and the Certificate Registrar shall require the
prospective transferee of any Residual Certificate to certify either (a) it is
not a Plan, (b) that it is neither (i) a Plan nor (ii) a Person who is
directly or indirectly purchasing the Residual Certificate on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan (including any
insurance company using funds in its general or separate accounts that may
constitute "plan assets") or (c) that (i) it is an insurance company and (ii)
all of the funds to be used by it to purchase the Certificates to be purchased
by it are held in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered by
PTCE 95-60.
(d) (i) 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, the
Trustee shall require delivery to it, and shall not
register the Transfer of any Residual Certificate
until its receipt of, an affidavit and agreement (a
"Transfer Affidavit and Agreement" attached hereto
as Exhibit E) from the proposed Transferee, in form
and substance satisfactory to the Trustee,
representing and warranting, among other things,
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 that 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
5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee
under clause (B) above, if a Responsible Officer of
the Trustee who is assigned to this transaction 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 shall agree (x)
to require a Transfer Affidavit and Agreement (in
the form attached hereto as Exhibit E) from any
other Person to whom such Person attempts to
transfer its Ownership Interest in a Residual
Certificate and (y) not to transfer its Ownership
Interest unless it provides a Transferor Affidavit
(in the form attached hereto as Exhibit E) to the
Trustee stating that, among other things, it has no
actual knowledge that such other Person is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing
an Ownership Interest in such Certificate, agrees
to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning
of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it
is, or is holding an Ownership Interest in a
Residual Certificate on behalf of, a "pass-through
interest holder."
(ii) The Trustee will register the Transfer of any
Residual Certificate only if it shall have received the
Transfer Affidavit and Agreement and all of such other
documents as shall have been reasonably required by the
Trustee as a condition to such registration. In addition, no
Transfer of a Residual Certificate shall be made unless the
Trustee shall have received a representation letter from the
Transferee of such Certificate to the effect that such
Transferee is a Permitted Transferee.
(iii) (A) If any purported Transferee shall become
a Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(d), then the last preceding
Permitted Transferee shall be restored, to the extent
permitted by law, to all rights 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 5.02(d) 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 5.02(d) 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 Trustee
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 Trustee on such terms as the
Trustee may choose. Such purported Transferee shall
promptly endorse and deliver each Residual
Certificate in accordance with the instructions of
the Trustee. Such purchaser may be the Trustee
itself or any Affiliate of the Trustee. The
proceeds of such sale, net of the commissions
(which may include commissions payable to the
Trustee or its Affiliates), expenses and taxes due,
if any, will be remitted by the Trustee 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 Trustee,
and the Trustee shall not be liable to any Person
having an Ownership Interest in a Residual
Certificate as a result of its exercise of such
discretion.
(iv) The Trustee shall make available to the
Internal Revenue Service and those Persons specified by the
REMIC Provisions 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 a
Disqualified Organization, including the information
described in Treasury regulations sections 1.860D-1(b)(5)
and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate or
organization described in Section 1381 of the Code that
holds an Ownership Interest in a Residual Certificate having
as among its record holders at any time any Person which is
a Disqualified Organization. Reasonable compensation for
providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02(d) set
forth prior to this subsection (v) may be modified, added to
or eliminated, provided that there shall have been delivered
to the Trustee at the expense of the party seeking to
modify, add to or eliminate any such provision the
following:
(A) written notification from each Rating Agency 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 any Class of
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, to the effect that such
modification of, addition to or elimination of such
provisions will not cause any REMIC created hereunder to
cease to qualify as a REMIC and will not cause any REMIC
created hereunder to be subject to an entity-level tax
caused by the Transfer of any Residual Certificate to a
Person that is not a Permitted Transferee or (y) a Person
other than the prospective transferee to be subject to a
REMIC-tax caused by the Transfer of a Residual Certificate
to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at any office or agency of the
Trustee maintained for such purpose pursuant to Section 8.11, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver, in
the name of the designated Transferee or Transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Certificate may be
exchanged for other Certificates of the same Class with authorized
denominations and a like aggregate Percentage Interest, upon surrender of such
Certificate to be exchanged at any office or agency of the Trustee maintained
for such purpose pursuant to Section 8.11. Whenever any Certificates are so
surrendered for exchange the Trustee shall execute and cause the Certificate
Registrar to authenticate and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Trustee) be duly endorsed by, or be accompanied by a written
instrument of transfer in the form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or his attorney
duly authorized in writing.
(g) No service charge to the Certificateholders shall be made
for any transfer or exchange of Certificates, but the Trustee may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall
be canceled and destroyed by the Certificate Registrar in accordance with its
customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the
Trustee is acting as Certificate Registrar) to provide notice to the Trustee
of each transfer of a Certificate and to provide the Trustee with an updated
copy of the Certificate Register on the first Business Day in January and June
of each year, commencing June 2000.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the Trustee or the
Certificate Registrar, or the Trustee and the Certificate Registrar receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee and the Certificate
Registrar such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of actual knowledge by the Trustee or
the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Trustee shall execute and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like denomination and Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Certificate Registrar)
connected therewith. Any replacement Certificate issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund created hereunder, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
If, after the delivery of such replacement Certificate, a bona fide
purchaser of the original Certificate in lieu of which such replacement
Certificate was issued presents for payment or registration such original
Certificate, the Trustee or the Certificate Registrar shall be entitled to
recover such replacement Certificate from the person to whom it was delivered
or any person taking therefrom, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expenses incurred by the Trustee or the
Certificate Registrar in connection therewith.
SECTION 5.04. Persons Deemed Owners.
The Depositor, the Servicer, the Trustee, the Certificate Registrar
and any agent of any of them may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Depositor, the Servicer, the Trustee, the
Certificate Registrar or any agent of any of them shall be affected by notice
to the contrary.
SECTION 5.05. Certain Available Information.
The Trustee shall maintain at its Corporate Trust Office and shall
make available free of charge during normal business hours for review by any
Holder of a Certificate or any Person identified to the Trustee as a
prospective transferee of a Certificate, originals or copies of the following
items: (A) this Agreement and any amendments hereof entered into pursuant to
Section 12.01, (B) all monthly statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date and (C) all certifications
delivered by a Responsible Officer of the Trustee since the Closing Date
pursuant to Section 11.01(h). Copies and mailing of any and all of the
foregoing items will be available from the Trustee upon request at the expense
of the Person requesting the same.
ARTICLE VI
THE DEPOSITOR, AND THE SERVICER
SECTION 6.01. Liability of the Depositor and the Servicer.
The Depositor and the Servicer each shall be liable in accordance
herewith only to the extent of the obligations specifically imposed by this
Agreement and undertaken hereunder by the Depositor and the Servicer herein.
SECTION 6.02. Merger or Consolidation of the Depositor or
the Servicer.
Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation. Subject to the following paragraph, the
Servicer will keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation and its
qualification as an approved conventional seller/servicer for FNMA or FHLMC in
good standing. The Depositor and the Servicer each will obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
The Depositor or the Servicer may be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Depositor or the Servicer shall be a party, or any Person succeeding
to the business of the Depositor or the Servicer, shall be the successor of
the Depositor or the Servicer, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that (i) the successor or surviving Person to the Servicer shall be
qualified to service mortgage loans on behalf of FNMA or FHLMC; and (ii) the
Rating Agencies' ratings and shadow ratings of the Offered Certificates in
effect immediately prior to such merger or consolidation will not be
qualified, reduced or withdrawn as a result thereof (as evidenced by a letter
to such effect from the Rating Agencies).
SECTION 6.03. Limitation on Liability of the Depositor,
the Servicer and Others.
None of the Depositor, the Servicer or any of the directors,
officers, employees or agents of the Depositor or the Servicer shall be under
any liability to the Trust Fund or the Certificateholders for any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Servicer or any such person against any
material breach of warranties, representations or covenants made herein, or
against any specific liability imposed on the Servicer pursuant hereto, or
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 obligations and duties hereunder. The
Depositor, the Servicer and any director, officer, employee or agent of the
Depositor or the Servicer may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Servicer, and any
director, officer, employee or agent of the Depositor, or the Servicer shall
be indemnified and held harmless by the Trust Fund 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 specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) or any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of their
respective duties hereunder or by reason of reckless disregard of obligations
and duties hereunder. Neither the Depositor nor the Servicer shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, in its
opinion, does not involve it in any expense or liability; provided, however,
that each of the Depositor and the Servicer may in its discretion undertake
any such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, unless the Depositor or the
Servicer acts without the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights, the legal expenses and costs of such action
and any liability resulting therefrom (except any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in
the performance of their respective duties hereunder or by reason of reckless
disregard of obligations and duties hereunder) shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor and the Servicer shall be
entitled to be reimbursed therefor from the Collection Account as and to the
extent provided in Section 3.11, any such right of reimbursement being prior
to the rights of the Certificateholders to receive any amount in the
Collection Account.
SECTION 6.04. Limitation on Resignation of the Servicer .
Except as otherwise provided herein, the 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 pursuant to the preceding sentence permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect obtained at the expense of the Servicer and delivered to the
Trustee. No resignation of the Servicer shall become effective until the
Trustee or a successor servicer shall have assumed the Servicer's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
Except as expressly provided herein, the Servicer shall not assign or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed
by the Servicer hereunder. The Trustee and the Depositor hereby specifically
(i) consent to the pledge and assignment by the Servicer of all of the
Servicer's right, title and interest in, to and under this Agreement to First
Union, for the benefit of certain lenders, and (ii) provided that no Servicing
Termination Event exists, agree that upon delivery to the Trustee by First
Union of a letter signed by the Servicer whereunder the Servicer shall resign
as Servicer under this Agreement, the Trustee shall appoint First Union or its
designee as successor Servicer within ten Business Days of receipt of such
letter, provided that at the time of such appointment, First Union or such
designee meets the requirements of a successor Servicer pursuant to Section
7.02(a) hereof and agrees to be subject to the terms of this Agreement. If,
pursuant to any provision hereof, the duties of the Servicer are transferred
to a successor, the entire amount of the Servicing Fee and other compensation
payable to the Servicer pursuant hereto shall thereafter be payable to such
successor.
SECTION 6.05. Rights of the Depositor and Others in
Respect of the Servicer.
The Servicer shall afford the Depositor and the Trustee, upon
reasonable notice and at the expense of the requesting party, during normal
business hours, access to all records maintained by the Servicer in respect of
its rights and obligations hereunder and access to officers of the Servicer
responsible for such obligations. Upon request, the Servicer shall furnish to
the Depositor and the Trustee its most recent financial statements and such
other information relating to its capacity to perform its obligations under
this Agreement it possesses. To the extent such information is not otherwise
available to the public, the Depositor and the Trustee shall not disseminate
any information obtained pursuant to the preceding two sentences without the
Servicer's written consent, except as required pursuant to this Agreement or
to the extent that it is appropriate to do so (i) in working with legal
counsel, auditors, taxing authorities or other governmental agencies or (ii)
pursuant to any law, rule, regulation, order, judgment, writ, injunction or
decree of any court or governmental authority having jurisdiction over the
Depositor, the Trustee or the Trust Fund, and in either case, the Depositor or
the Trustee, as the case may be, shall use its best efforts to assure the
confidentiality of any such disseminated non-public information. The Depositor
may, but is not obligated to, enforce the obligations of the Servicer under
this Agreement and may, but is not obligated to, perform, or cause a designee
to perform, any defaulted obligation of the Servicer under this Agreement or
exercise the rights of the Servicer under this Agreement; provided that the
Servicer shall not be relieved of any of its obligations under this Agreement
by virtue of such performance by the Depositor or its designee. The Depositor
shall not have any responsibility or liability for any action or failure to
act by the Servicer and is not obligated to supervise the performance of the
Servicer under this Agreement or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01. Servicing Termination Events.
"Servicing Termination Events" wherever used herein, means any one of
the following events:
(i) any failure by the Servicer to remit to the
Trustee for distribution to the Certificateholders any
payment (other than a Advance required to be made from its
own funds on any Servicer Remittance Date pursuant to
Section 4.03) required to be made under the terms of the
Certificates and this Agreement which continues unremedied
for a period of one Business Day after the date upon which
written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the
Depositor or the Trustee (in which case notice shall be
provided by telecopy), or to the Servicer, the Depositor and
the Trustee by the Holders of Certificates entitled to at
least 25% of the Voting Rights; or
(ii) any failure (other than a failure identified
in clause (vi) below) on the part of the Servicer duly to
observe or perform in any material respect any other of the
covenants or agreements on the part of the Servicer
contained in the Certificates or in this Agreement which
continues unremedied for a period of 30 days after the
earlier of (a) the date on which written notice of such
failure, requiring the same to be remedied, shall have been
given to the Servicer by the Depositor or the Trustee, or to
the Servicer, the Depositor and the Trustee by the Holders
of Certificates entitled to at least 25% of the Voting
Rights and (b) actual knowledge of such failure by a
Servicing Officer of the Servicer; or
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in
an involuntary case under any present or future federal or
state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceeding, or for the winding-up
or liquidation of its affairs, shall have been entered
against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of
90 days; or
(iv) the Servicer shall consent to the appointment
of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property;
or
(v) the Servicer shall admit in writing its
inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment
of its obligations; or
(vi) any failure of the Servicer to make any
Advance required to be made from its own funds pursuant to
Section 4.03 or failure to make any payment required
pursuant to Section 3.24 which continues unremedied until
5:00 p.m. New York time on the Business Day immediately
following the date on which such Advance or payment is
required to be made; or
(vii) a Servicing Termination Trigger has occurred
and is continuing.
Subject to Article IX, if a Servicing Termination Event described in
clauses (ii) through (v) of this Section shall occur, then, and in each and
every such case, so long as such Servicing Termination Event shall not have
been remedied, the Depositor or the Trustee may, and at the written direction
of the Holders of Certificates entitled to at least 51% of Voting Rights, the
Trustee shall, by notice in writing to the Servicer, (and to the Depositor if
given by the Trustee or to the Trustee if given by the Depositor), terminate
all of the rights and obligations of the Servicer, in its capacity as the
Servicer, under this Agreement, to the extent permitted by law, and in and to
the Mortgage Loans and the proceeds thereof. If a Servicing Termination Event
described in clause (i), (vi) or (vii) hereof shall occur, the Trustee shall,
by notice in writing to the Servicer, and the Depositor, terminate all of the
rights and obligations of the Servicer in its capacity as Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof. On or
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered, as attorney-in-fact or otherwise, to execute and deliver, on behalf
of and at the expense of the Servicer 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 Servicer agrees promptly (and in any
event no later than ten Business Days subsequent to such notice) to provide
the Trustee with all documents and records requested by it to enable it to
assume the Servicer's functions under this Agreement, and to cooperate with
the Trustee in effecting the termination of the Servicer's responsibilities
and rights under this Agreement, including, without limitation, the transfer
within one Business Day to the Trustee for administration by it of all cash
amounts which at the time shall be or should have been credited by the
Servicer to the Collection Account held by or on behalf of the Servicer, the
Distribution Account or any REO Account or Servicing Account held by or on
behalf of the Servicer or thereafter be received with respect to the Mortgage
Loans or any REO Property serviced by the Servicer (provided, however, that
the Servicer, shall continue to be entitled to receive all amounts accrued or
owing to it under this Agreement on or prior to the date of such termination,
whether in respect of Advances or otherwise, and shall continue to be entitled
to the benefits of Section 6.03 notwithstanding any such termination). For
purposes of this Section 7.01, the Trustee shall not be deemed to have
knowledge of a Servicing Termination Event (except for clause (vi) above)
unless a Responsible Officer of the Trustee assigned to and working in the
Trustee's Corporate Trust Office has actual knowledge thereof or unless
written notice of any event which is in fact such a Servicing Termination
Event is received by the Trustee and such notice references the Certificates,
the Trust Fund or this Agreement.
Furthermore, the Trustee may by written notice to the Servicer,
terminate all rights and obligations of the Servicer as and with the effect
set forth in the second preceding paragraph, provided the Rating Agencies'
ratings of the Offered Certificates in effect immediately prior to such
termination will not be qualified, reduced or withdrawn as a result thereof
(as evidenced by a letter to such effect from the Rating Agencies).
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of
termination, the Trustee shall be the successor in all respects to the
Servicer in its capacity as Servicer under this Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Servicer (except for any representations or
warranties of the Servicer under this Agreement, the responsibilities, duties
and liabilities contained in Section 2.03(c) and its obligation to deposit
amounts in respect of losses pursuant to Section 3.12), by the terms and
provisions hereof including, without limitation, the Servicer's obligations to
make Advances pursuant to Section 4.03 and to make payments in respect of
Prepayment Interest Shortfalls pursuant to Section 3.24; provided, however,
that if the Trustee is prohibited by law or regulation from obligating itself
to make advances regarding delinquent mortgage loans, then the Trustee shall
not be obligated to make Advances pursuant to Section 4.03; and provided
further, that any failure to perform such duties or responsibilities caused by
the Servicer's failure to provide information required by Section 7.01 shall
not be considered a default by the Trustee as successor to the Servicer
hereunder. As compensation therefor, the Trustee shall be entitled to the
Servicing Fees and all funds relating to the Mortgage Loans to which the
Servicer would have been entitled if it had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so
act, or shall, if it is unable to so act or if it is prohibited by law from
making advances regarding delinquent mortgage loans or if the Holders of
Certificates entitled to at least 51% of the Voting Rights so request in
writing to the Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, an established mortgage loan servicing institution
acceptable to each Rating Agency and having a net worth of not less than
$15,000,000, as the successor to the Servicer under this Agreement in the
assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer under this Agreement. No appointment of a successor to the
Servicer under this Agreement shall be effective until the assumption by the
successor of all of the Servicer's responsibilities, duties and liabilities
hereunder. In connection with such appointment and assumption described
herein, 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 be in excess of that
permitted the Servicer as such hereunder. The Depositor, the Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Pending appointment of a
successor to the Servicer under this Agreement, the Trustee shall act in such
capacity as hereinabove provided.
In the event of a Servicing Termination Event,
notwithstanding anything to the contrary above, the Trustee and the Depositor
hereby agree that upon termination of the Servicer, the Trustee shall appoint
First Union or its designee as successor Servicer, provided that at the time
of such appointment, First Union or such designee meets the requirements of a
successor servicer set forth above and First Union or such designee agrees to
be subject to the terms of this Agreement.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of the Servicer pursuant to Section
7.01 above or any appointment of a successor to the Servicer pursuant to
Section 7.02 above, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Not later than the later of 60 days after the occurrence of
any event which constitutes or which, with notice or lapse of time or both,
would constitute a Servicing Termination Event or five Business Days after a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
such an event, the Trustee shall transmit by mail to all Holders of
Certificates notice of each such occurrence, unless such default or Servicing
Termination Event shall have been cured or waived.
SECTION 7.04. Waiver of Servicing Termination Events.
The Holders representing at least 66% of the Voting Rights evidenced
by all Classes of Certificates affected by any default or Servicing
Termination Event hereunder may waive such default or Servicing Termination
Event; provided, however, that a default or Servicing Termination Event under
clause (i) or (vi) of Section 7.01 may be waived only by all of the Holders of
the Regular Certificates. Upon any such waiver of a default or Servicing
Termination Event, such default or Servicing Termination Event shall cease to
exist and shall be deemed to have been remedied for every purpose hereunder.
No such waiver shall extend to any subsequent or other default or Servicing
Termination Event or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of a Servicing Termination Event
of which a Responsible Officer of the Trustee has actual knowledge and after
the curing of all Servicing Termination Events which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. During a Servicing Termination Event, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement,
and use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of such
person's own affairs. Any permissive right of the Trustee enumerated in this
Agreement shall not be construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by any party to this Agreement and, provided, further,
the Trustee shall not be responsible for the accuracy or verification of any
calculation provided to it pursuant to this Agreement. If any such instrument
is found not to conform to the requirements of this Agreement in a material
manner, the Trustee shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to the Trustee's
satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own gross negligent action, its own gross
negligent failure to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of a Servicing
Termination Event of which a Responsible Officer of the
Trustee shall have actual knowledge, and after the curing of
all such Servicing Termination Events 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 that conform to the
requirements of this Agreement;
(ii) The Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in
ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable
with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction
of the Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement;
(iv) None of the provisions contained in this
Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of
the obligations of the Servicer under this Agreement except
during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers
and privileges of the Servicer in accordance with the terms
of this Agreement; and
(v) Subject to the other provisions of this
Agreement and without limiting the generality of this
Section 8.01, the Trustee shall have no duty (A) to see any
recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or to
see the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing
or any thereof, (B) to see to any insurance, (C) to see the
payment or discharge of any tax, assessment, or other
governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part
of the Trust Fund other than from funds available in the
Certificate Account or (D) to confirm or verify the contents
of any reports or certificates of the Servicer delivered to
the Trustee pursuant to this Agreement believed by the
Trustee to be genuine and to have been signed or presented
by the proper party or parties.
Whether or not expressly so provided, every provision of this
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustee is subject to the provisions of this Section.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely upon and shall
be protected in acting or refraining from acting upon any
resolution, Officers' Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or
other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper
party or parties;
(ii) The Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with
such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred therein or
thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of a
Servicing Termination Event (which has not been cured or
waived), to exercise such of the rights and powers vested in
it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent person would exercise
or use under the circumstances in the conduct of such
person's own affairs;
(iv) The Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicing
Termination Event hereunder of which a Responsible Officer
of the Trustee shall have actual knowledge and after the
curing of all Servicing Termination Events 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 Holders of Certificates entitled to at least 25% of
the Voting Rights; 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 such
Certificateholders, the Trustee may require reasonable
indemnity against such expense, or liability from such
Certificateholders as a condition to taking any such action;
(vi) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, or custodians,
and the Trustee shall not be responsible for the misconduct
or negligence of any agent, attorney or custodian appointed
with due care;
(vii) The Trustee shall not be personally liable
for any loss resulting from the investment of funds held in
any Investment Account at the direction of the Servicer
pursuant to Section 3.12, or for any loss resulting from the
redemption or sale of any such investment as therein
authorized;
(viii) The Trustee is not required to expend or
risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it has
reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability
or the payment of its fees and expenses is not reasonably
assured to it;
(ix) The Trustee is not required to take notice or
deemed to have notice of any Servicing Termination Event
hereunder, except Servicing Termination Events under Section
7.01(i) and 7.01(vi) hereof, unless a Responsible Officer of
the Trustee has received notice in writing of such Servicing
Termination Event from the Depositor or from the Holders of
Certificates entitled to at least 25% of the Voting Rights,
and in the absence of any such notice, the Trustee may
conclusively assume that no such Servicing Termination Event
exists;
(x) The Trustee is not required to give any bond or
surety with respect to the performance of its duties or the
exercise of its powers under this Agreement;
(xi) In the event the Trustee receives inconsistent
or conflicting requests and indemnity from two or more
groups of Holders of Certificates, each representing less
than a majority in Voting Rights for the Certificates
outstanding, the Trustee, shall be entitled to refrain from
acting hereunder and its sole obligation shall be to keep
safe funds held in the trust accounts until receipt of a
written direction signed by each group of Holders of
Certificates requesting the Trustee to take action or as
otherwise ordered by a court of competent jurisdiction;
(xii) The Trustee's immunities and protections from
liability and its right compensation in connection with the
performance of its duties under this Agreement shall extend
to the Trustee's officers, directors, agents and employees,
and shall survive the Trustee's resignation or removal and
final payment of the Certificates;
(xiii) Except for information provided by the
Trustee concerning the Trustee, the Trustee shall have no
responsibility for any information in any offering
memorandum or other disclosure material distributed with
respect to the Certificates, and the Trustee shall have no
responsibility for compliance with any state or federal
securities laws in connection with the Certificates; and
(xiv) The right of the Trustee to perform any
discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable
for other than its gross negligence or willful misconduct in
the performance of such act.
(b) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it without
the possession of any of the Certificates, or the production thereof at the
trial or other proceeding relating thereto, may be enforced against third
parties or otherwise, and any such suit, action or proceeding instituted by
the Trustee shall be brought in its name for the benefit of all the Holders of
such Certificates, subject to the provisions of this Agreement.
SECTION 8.03. Trustee Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
signature of the Trustee, the authentication of the Certificate Registrar on
the Certificates, the acknowledgments of the Trustee contained in Article II
and the representations and warranties of the Trustee in Section 8.12) shall
be taken as the statements of the Depositor and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations or
warranties as to the validity or sufficiency of this Agreement (other than as
specifically set forth in Section 8.12) or of the Certificates (other than the
signature of the Trustee and authentication of the Certificate Registrar on
the Certificates) or of any Mortgage Loan or related document. The Trustee
shall not be accountable for the use or application by the Depositor of any of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor or the Servicer in respect of
the Mortgage Loans or deposited in or withdrawn from the Collection Account by
the Servicer, other than any funds held by or on behalf of the Trustee in
accordance with Section 3.10.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual capacity 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. Trustee's Fees and Expenses.
The Trustee shall be entitled to the Trustee Fee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust) for all services rendered by the Trustee in the exercise and
performance of any of the powers and duties hereunder. The Trustee shall
withdraw from the Distribution Account on each Distribution Date and pay to
itself the Trustee Fee. The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense (not including the compensation and the
expenses and disbursements of any agents, attorneys or custodians by or
through which the Trustee has chosen to execute any of the trusts or powers
hereunder or perform any of the duties hereunder) incurred by the Trustee
arising out of or in connection with the acceptance or administration of its
obligations and duties under this Agreement, other than any loss, liability or
expense (i) that constitutes a specific liability of the Trustee pursuant to
Section 11.01(c) or (ii) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder or as a result of a breach of the Trustee's obligations under
Article XI hereof. In the event the Trustee incurs expenses or renders
services in any proceedings which result from the occurrence or continuance of
a Servicing Termination Event under Section 7.01(iii), (iv) or (v) hereof, or
from the occurrence of any event which, by virtue of the passage of time,
would become such a Servicing Termination Event, the expenses so incurred and
compensation for services so rendered are intended to constitute expenses of
administration under the United States Bankruptcy Code or equivalent law. The
Servicer agrees to indemnify the Trustee from, and hold it harmless against,
any loss, liability or expense arising in respect of such Servicer's acts or
omissions in connection with this Agreement and the Mortgage Loans serviced by
such Servicer to the extent such acts or omissions are not consistent with the
performance of the Servicer's obligations under this Agreement. Such indemnity
shall survive the termination or discharge of this Agreement and the
resignation or removal of the Trustee. Any indemnity payment hereunder made by
the Servicer to the Trustee shall be from the Servicer's own funds, without
reimbursement from the Trust Fund therefor.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or an
association organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by federal or state authority. If
such corporation or association publishes reports of conditions at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section the combined
capital and surplus of such corporation or association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
conditions so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section
8.07.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trust
hereby created by giving written notice thereof to the Depositor, the Servicer
and to the Certificateholders. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor trustee by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Certificateholders and the Servicer by the Depositor. If no successor trustee
shall have been so appointed and 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 Depositor, 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 Depositor
may remove the Trustee and appoint a successor trustee by written instrument,
in duplicate, which instrument shall be delivered to the Trustee so removed
and to the successor trustee. A copy of such instrument shall be delivered to
the Certificateholders and the Servicer by the Depositor.
The Holders of Certificates entitled to at least 51% of the Voting
Rights, 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 Depositor, one complete set to the Trustee so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Certificateholders and the Servicer by
the Depositor.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor 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 the like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee all
Mortgage Files and related documents and statements, as well as all moneys,
held by it hereunder, and the Depositor 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 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06 and the appointment of such
successor trustee shall not result in a downgrading of any Class of
Certificates (including any shadow rating thereof) by either Rating Agency, as
evidenced by a letter from each Rating Agency.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown
in the Certificate Register. If the Depositor fails to mail such notice within
10 days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation or association into which the Trustee may be merged
or converted or with which it may be consolidated or any corporation or
association resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation or association succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation or
association 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 Trust Fund or property securing the same may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such
title to the 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 Servicer and the Trustee may consider necessary or desirable. If
the 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 a Servicing Termination
Event shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee
under Section 8.06 hereunder and no notice to Holders of Certificates 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, 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 defaulting Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed 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 trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trust conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 8.11. Appointment of Office or Agency.
The Trustee will maintain or appoint an office or agency in the City
of New York where the Certificates may be surrendered for registration of
transfer or exchange, and presented for final distribution, and where notices
and demands to or upon the Trustee in respect of the Certificates and this
Agreement may be served.
SECTION 8.12. Representations and Warranties of the
Trustee.
The Trustee hereby represents and warrants to the Servicer and the
Depositor as of the Closing Date, that:
(i) The Trustee is a banking corporation duly
organized, validly existing and in good standing under the
laws of the State of New York.
(ii) The execution and delivery of this Agreement
by the Trustee, and the performance and compliance with the
terms of this Agreement by the Trustee, will not violate the
Trustee's charter or bylaws or constitute a default (or an
event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) The Trustee has the full power and authority
to enter into and consummate all transactions contemplated
by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
ARTICLE IX
[Reserved]
ARTICLE X
TERMINATION
SECTION 10.01 Termination Upon Repurchase or Liquidation
of All Mortgage Loans.
Subject to Section 10.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Servicer and the
Trustee (other than the obligations of the Servicer to the Trustee pursuant to
Section 8.05 and of the Servicer to provide for and the Trustee to make
payments to Certificateholders as hereafter set forth) shall terminate upon
payment to the Certificateholders and the deposit of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid or deposited on the
Distribution Date coinciding with or following the earlier to occur (i) the
purchase by the Terminator (as defined below) of all Mortgage Loans and each
REO Property remaining in the Trust Fund at a price equal to the greater of
(A) the aggregate Purchase Price of all the Mortgage Loans included in the
Trust Fund, plus the appraised value of each REO Property, if any, included in
the Trust Fund, such appraisal to be conducted by an appraiser mutually agreed
upon by the Terminator and the Trustee in their reasonable discretion and (B)
the aggregate fair market value of all of the assets of the Trust Fund (as
determined by the Terminator and the Trustee, as of the close of business on
the third Business Day next preceding the date upon which notice of any such
termination is furnished to Certificateholders pursuant to the third paragraph
of this Section 10.01) and (ii) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in the Trust Fund; provided, however, that in no event shall the
trust created hereby continue beyond the earlier of (a) the Latest Possible
Maturity Date and (b) the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James's, living on the date hereof.
The Holder of the Class X Certificate shall have the right, or if it
chooses not to exercise such right, the Servicer shall have the right (the
party exercising such right, the "Terminator"), to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to
clause (i) of the preceding paragraph no later than the Determination Date in
the month immediately preceding the Distribution Date on which the
Certificates will be retired; provided, however, that the Terminator may elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust Fund pursuant to clause (i) above only if the aggregate Stated Principal
Balance of the Mortgage Loans and each REO Property remaining in the Trust
Fund at the time of such election is equal to or less than 10% of the Cut-off
Date Pool Principal Balance.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) in the event such notice is given in
connection with the purchase of the Mortgage Loans and each REO Property by
the Terminator, not earlier than the 15th day and not later than the 25th day
of the month next preceding the month of the final distribution on the
Certificates or (b) otherwise during the month of such final distribution on
or before the Determination Date in such month, in each case specifying (i)
the Distribution Date upon which the Trust Fund will terminate and final
payment of the Certificates will be made upon presentation and surrender of
Certificates at the office of the Trustee therein designated, (ii) the amount
of any such final payment, (iii) that no interest shall accrue in respect of
the Certificates from and after the Interest Accrual Period relating to the
final Distribution Date therefor and (iv) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Certificates at the office of the
Trustee. The Trustee shall give such notice to the Certificate Registrar at
the time such notice is given to Certificateholders. In the event such notice
is given in connection with the purchase of all of the Mortgage Loans and each
REO Property remaining in the Trust Fund by the Terminator, the Terminator
shall deliver to the Trustee for deposit in the Distribution Account not later
than the last Business Day of the month next preceding the month of the final
distribution on the Certificates an amount in immediately available funds
equal to the above-described purchase price. Upon certification to the Trustee
by a Servicing Officer of the making of such final deposit, the Trustee shall
promptly release to the Terminator the Mortgage Files for the remaining
Mortgage Loans, and the Trustee shall execute all assignments, endorsements
and other instruments necessary to effectuate such transfer.
Upon presentation of the Certificates by the Certificateholders on
the final Distribution Date, the Trustee shall distribute to each
Certificateholder so presenting and surrendering its Certificates the amount
otherwise distributable on such Distribution Date in accordance with Section
4.01 in respect of the Certificates so presented and surrendered. Any funds
not distributed to any Holder or Holders of Certificates being retired on such
Distribution Date because of the failure of such Holder or Holders to tender
their Certificates shall, on such date, be set aside and held in trust and
credited to the account of the appropriate non-tendering Holder or Holders. If
any Certificates as to which notice has been given pursuant to this Section
10.01 shall not have been surrendered for cancellation within six months after
the time specified in such notice, the Trustee shall mail a second notice to
the remaining non-tendering Certificateholders to surrender their Certificates
for cancellation in order to receive the final distribution with respect
thereto. If within one year after the second notice all such Certificates
shall not have been surrendered for cancellation, the Trustee shall, directly
or through an agent, contact the remaining related non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining the funds in trust and of contacting such
Certificateholders shall be paid out of the assets remaining in trust for such
Certificateholders. If within two years after the second notice any such
Certificates shall not have been surrendered for cancellation, the Trustee
shall take appropriate steps, or may appoint an agent to take appropriate
steps, to contact the remaining Certificateholders concerning the surrender of
their Certificates, and the cost thereof shall be paid out of the funds held
in trust. If after a reasonable period of time, any such Certificates which
have not been surrendered for cancellation continue to remain outstanding, the
Trustee shall pay to the Depositor all amounts distributable to the Holders
thereof, and the Depositor shall thereafter hold such amounts for the benefit
of such Holders. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 10.01.
Immediately following the deposit of funds in trust hereunder in
respect of the Certificates, the Trust Fund shall terminate.
SECTION 10.02 Additional Termination Requirements
(a) In the event that the Terminator purchases all the
Mortgage Loans and each REO Property or the final payment on or other
liquidation of the last Mortgage Loan or REO Property remaining in the Trust
Fund pursuant to Section 10.01, the Trust Fund shall be terminated in
accordance with the following additional requirements:
(i) The Trustee shall specify the first day in the
90-day liquidation period in a statement attached to the
final Tax Return of each REMIC created hereunder pursuant to
Treasury regulation Section 1.860F-1 and shall satisfy all
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
Terminator;
(ii) During such 90-day liquidation period, and at
or prior to the time of making of the final payment on the
Certificates, the Trustee shall sell all of the assets of
the Trust Fund to the Terminator for cash; and
(iii) At the time of the making of the final
payment on the Certificates, the Trustee shall distribute or
credit, or cause to be distributed or credited, to the
Holders of the Residual Certificates all cash on hand in the
Trust Fund (other than cash retained to meet claims), and
the Trust Fund shall terminate at that time.
(b) At the Terminator's expense, the Trustee shall prepare the
documentation required in connection with the adoption of a plan of
liquidation of a each REMIC created hereunder pursuant to this Section 10.02.
(c) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trustee to specify the 90-day liquidation period
for each REMIC created hereunder, which authorization shall be binding upon
all successor Certificateholders.
ARTICLE XI
REMIC PROVISIONS
SECTION 11.01. Tax Administration.
(a) The Trustee shall make REMIC elections as set forth in the
Preliminary Statement under the Code and, if necessary, under applicable state
law. Such elections will be made on Form 1066 or other appropriate federal tax
or information return or any appropriate state return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and the residual interest in each REMIC shall be
as designated in the Preliminary Statement. The Trustee shall not permit the
creation of any "interests" in any of REMIC 1 or REMIC 2 (within the meaning
of Section 860G of the Code) other than the interests designated in the
Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day"
of each of REMIC 1 and REMIC 2 within the meaning of Section 860G(a)(9) of the
Code.
(c) The Trustee shall be reimbursed for any and all expenses
relating to any tax audit of any REMIC created hereunder (including, but not
limited to, any professional fees or any administrative or judicial
proceedings with respect to any REMIC created hereunder that involve the
Internal Revenue Service or state tax authorities) including the expense of
obtaining any tax-related Opinion of Counsel, except as specified herein. The
Trustee's right of reimbursement shall not apply to expenses incurred as a
result of a breach of the Trustee's covenants set forth in this Article XI.
The Trustee, as agent for the tax matters person of each REMIC created
hereunder, shall (i) act on behalf of each REMIC created hereunder in relation
to any tax matter or controversy involving each REMIC created hereunder and
(ii) represent the Trust Fund in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority with
respect thereto. The holder of the largest Percentage Interest of the Residual
Certificates shall be designated, in the manner provided under Treasury
regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-I, as the tax matters person of each REMIC created hereunder.
By their acceptance thereof, the holder of the largest Percentage Interest of
the Residual Certificates hereby agrees to irrevocably appoint the Trustee or
an Affiliate as its agent to perform all of the duties of the tax matters
person for each REMIC created hereunder.
(d) The Trustee shall prepare, sign and file all of the Tax
Returns in respect of each REMIC created hereunder. The expenses of preparing
and filing such returns shall be borne by the Trustee without any right of
reimbursement therefor. The Servicer shall provide on a timely basis to the
Trustee or its designee such information with respect to the assets of each
REMIC created hereunder as is in its possession and reasonably required by the
Trustee to enable it to perform its obligations under this Article.
(e) The Trustee shall perform on behalf of each REMIC created
hereunder all reporting and other tax compliance duties that are the
responsibility of each REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Among its other duties, as required by the Code, the
REMIC Provisions or other such compliance guidance, the Trustee shall provide
(i) to any Transferor of a Residual Certificate such information as is
necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Person who is not a Permitted Transferee, (ii) to
the Certificateholders such information or reports as are required by the Code
or the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required) and (iii) to the Internal Revenue Service the name, title, address
and telephone number of the person who will serve as the representative of
each REMIC created hereunder. The Servicer shall provide on a timely basis to
the Trustee such information with respect to the assets of each REMIC created
hereunder, including, without limitation, the Mortgage Loans, as is in its
possession and reasonably required by the Trustee to enable it to perform its
obligations under this subsection. In addition, the Depositor shall provide or
cause to be provided to the Trustee, within ten (10) days after the Closing
Date, all information or data that the Trustee reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) The Trustee shall take such action and shall cause each
REMIC created hereunder to take such action as shall be necessary to create or
maintain the status thereof as a REMIC under the REMIC Provisions (and the
Servicer shall assist it, to the extent reasonably requested by it). The
Trustee shall not take any action, cause any REMIC created hereunder to take
any action or fail to take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as the case may be, could
(i) endanger the status of any of REMIC 1 or REMIC 2 as a REMIC or (ii) result
in the imposition of a tax upon any REMIC created hereunder (including but not
limited to the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section
860G(d) of the Code) (either such event, an "Adverse REMIC Event") unless the
Trustee has received an Opinion of Counsel, addressed to the Trustee (at the
expense of the party seeking to take such action but in no event at the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to each REMIC created hereunder, endanger such status or result
in the imposition of such a tax, nor shall the Servicer take or fail to take
any action (whether or not authorized hereunder) as to which the Trustee has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to the Trust Fund or the
assets of the Trust Fund, or causing the Trust Fund to take any action, which
is not expressly permitted under the terms of this Agreement, the Servicer
will consult with the Trustee or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect
to any REMIC created hereunder, and the Servicer shall not take any such
action or cause the Trust Fund to take any such action as to which the Trustee
has advised it in writing that an Adverse REMIC Event could occur. The Trustee
may consult with counsel to make such written advice, and the cost of same
shall be borne by the party seeking to take the action not permitted by this
Agreement, but in no event shall such cost be an expense of the Trustee. At
all times as may be required by the Code, the Trustee will ensure that
substantially all of the assets of each REMIC created hereunder will consist
of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of any REMIC created hereunder created hereunder as defined in
Section 860F(a)(2) of the Code, on the "net income from foreclosure property"
of any REMIC created hereunder as defined in Section 860G(c) of the Code, on
any contributions to any REMIC created hereunder after the Startup Day
therefor pursuant to Section 860G(d) of the Code, or any other tax is imposed
by the Code or any applicable provisions of state or local tax laws, such tax
shall be charged (i) to the Trustee pursuant to Section 11.03 hereof, if such
tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article XI, (ii) to the Servicer pursuant to Section
11.03 hereof, if such tax arises out of or results from a breach by the
Servicer of any of its obligations under Article III or this Article XI, or
otherwise, and (iii) if clauses (i) and (ii) do not apply, against amounts on
deposit in the Distribution Account and shall be paid by withdrawal therefrom.
(h) On or before April 15 of each calendar year, commencing
April 15, 2001, the Trustee shall deliver to the Servicer and each Rating
Agency an Officers' Certificate stating the Trustee's compliance with this
Article XI.
(i) The Trustee and the Servicer shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis.
(j) Following the Startup Day, the Trustee shall not accept any
contributions of assets to any REMIC created hereunder other than in
connection with any Qualified Substitute Mortgage Loan delivered in accordance
with Section 2.03 unless it shall have received an Opinion of Counsel to the
effect that the inclusion of such assets in any such REMIC will not cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject any REMIC created hereunder to any tax
under the REMIC Provisions or other applicable provisions of federal, state
and local law or ordinances.
(k) Neither the Trustee nor the Servicer shall enter into any
arrangement by which any REMIC created hereunder will receive a fee or other
compensation for services nor permit any REMIC created hereunder to receive
any income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(l) The Trustee shall treat the Basis Risk Reserve Fund as an
outside reserve fund within the meaning of Treasury Regulation Section
1.860G-2(h) that is owned by the Class X Certificateholder and that is not an
asset of any REMIC created hereunder. The Trustee shall treat the rights of
the Class A, Class M-1, Class M-2, and Class B Certificateholders to receive
payments from the Basis Risk Reserve Fund in the event of a Basis Risk
Shortfall as rights in an interest rate cap contract written by the Class X
Certificateholder in favor of the Class A, Class M-1, Class M-2, and Class B
Certificateholders. Thus, each Class A, Class M-1, Class M-2, and Class B
Certificate shall be treated as representing not only ownership of regular
interests in REMIC 2, but also ownership of an interest in an interest rate
cap contract. For purposes of determining the issue prices of the REMIC 2
regular interests, the Trustee shall assume that the interest rate cap
contract has a value of $5,000. In the event that the beneficial ownership of
the Class BB Certificates and the Class X Certificates is held by separate
entities for tax purposes, the Trustee shall treat the Class BB Certificates
as debt of the Class X Certificateholders for federal income tax purposes and
shall not treat such class of Certificates as an interest in either REMIC
created hereunder. By acquiring the Class BB Certificates and the Class X
Certificates, the respective Holders will agree to treat the Class BB
Certificates as debt of the Class X Certificateholders for federal income tax
purposes in the event that the beneficial ownership of the Class BB
Certificates and the Class X Certificates is separated. Notwithstanding
anything to the contrary in this Pooling and Servicing Agreement, the Trustee
shall account for interest accruing on the Certificates in excess of the
Weighted Average Net Mortgage Rate as paid first to the Class X
Certificateholders and then to the Offered Certificates pursuant to the cap
agreement.
SECTION 11.02. Prohibited Transactions and Activities.
None of the Depositor, the Servicer or the Trustee shall sell,
dispose of or substitute for any of the Mortgage Loans (except in connection
with (i) the foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by deed in lieu of
foreclosure, (ii) the bankruptcy of the Trust Fund (iii) the termination of
the Trust Fund pursuant to Article X of this Agreement, (iv) a substitution
pursuant to Article II of this Agreement or (v) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement), nor acquire any assets for
the Trust Fund (other than a REO Property acquired in respect of a defaulted
Mortgage Loan), nor sell or dispose of any investments in the Collection
Account or the Distribution Account for gain, nor accept any contributions to
the Trust Fund after the Closing Date (other than a Subsequent Mortgage Loan
or a Qualified Substitute Mortgage Loan delivered in accordance with Section
2.03), unless it has received an Opinion of Counsel, addressed to the Trustee
(at the expense of the party seeking to cause such sale, disposition,
substitution, acquisition or contribution but in no event at the expense of
the Trustee) that such sale, disposition, substitution, acquisition or
contribution will not (a) affect adversely the status of any REMIC created
hereunder as a REMIC or (b) cause any REMIC created hereunder to be subject to
a tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
SECTION 11.03. Tax Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the
Depositor and the Servicer for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Depositor or the Servicer, as a result of a breach of the Trustee's
covenants set forth in this Article XI.
(b) The Servicer agrees to indemnify the Trust Fund, the
Depositor and the Trustee for any taxes and costs, including without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Depositor or the Trustee, as a result of the breach of the
Servicer's covenants set forth in Article III or this Article XI.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee without the consent of any of the Certificateholders,
(i) to cure any ambiguity, to correct any defect or to give effect to the
expectations of Holders, (ii) to correct, modify or supplement any provisions
herein, or (iii) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with
the provisions of this Agreement, provided that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Trustee, adversely affect
in any material respect the interests of any Certificateholder, provided,
further, that if the Person requesting such amendment delivers to the Trustee
written confirmation from each Rating Agency that such amendment will not
cause such Rating Agency to revise or withdraw its then current rating or
shadow rating of the Class A Certificates, such amendment will be deemed to
not adversely affect in any material respect the interests of the
Certificateholders and no such Opinion of Counsel shall be required.
This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received
on Mortgage Loans which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect
in any material respect the interests of the Holders of any Class of
Certificates in a manner, other than as described in (i), without the consent
of the Holders of Certificates of such Class evidencing at least 66% of the
Voting Rights allocated to such Class, or (iii) modify the consents required
by the immediately preceding clauses (i) and (ii) without the consent of the
Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 12.01, Certificates registered in the name
of the Depositor, or the Servicer or any Affiliate thereof shall be entitled
to Voting Rights with respect to matters affecting such Certificates.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement pursuant to the two
preceding paragraphs unless it shall have first received an Opinion of Counsel
to the effect that such amendment will not result in the imposition of any tax
on any REMIC created hereunder pursuant to the REMIC Provisions or cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
Promptly after the execution of any such amendment with the consent
of Holders the Trustee shall furnish a copy of such amendment to each
Certificateholder.
Notwithstanding any contrary provision of this Agreement, this
Agreement may be amended by the Depositor, the Servicer and the Trustee
without the consent of any of the Certificateholders, in order to replace the
Class BB Certificate with two or more Classes of Certificates having in the
aggregate the same rights as the Class BB Certificates, provided that such
action shall not, as evidenced by an Opinion of Counsel delivered by the
Holder of the Class BB Certificate to the Trustee, the Depositor and the
Rating Agencies, result in the Trust Fund or any portion thereof being
characterized as a "taxable mortgage pool" as defined in the Code.
It shall not be necessary for the consent of Certificateholders under
this Section 12.01 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.
The cost of any Opinion of Counsel to be delivered pursuant to this
Section 12.01 shall be borne by the Person seeking the related amendment, but
in no event shall such Opinion of Counsel be an expense of the Trustee.
The Trustee may, but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
SECTION 12.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Servicer and at the expense of the Certificateholders, but only upon direction
of the Trustee accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
SECTION 12.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
the Trust 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 (except as
expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of any
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 15 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more
Holders of Certificates shall have any right in any manner whatsoever by
virtue of any provision of this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of such Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder, 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, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 12.04. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.05. Notices.
All directions, demands instructions, requests and notices hereunder
shall be in writing and shall be deemed to have been duly given when received
if personally delivered at or mailed by first class mail, postage prepaid, or
by express delivery service or delivered in any other manner specified herein,
addressed as follows:
To the Depositor: Merrill Lynch Mortgage Investors, Inc.
World Financial Center
New York, NY 10281
Attention: General Counsel's Office
Telephone: (212) 449-1000
Telecopier: (212) 449-5559
To the Servicer: Litton Loan Servicing LP,
5373 West Alabama,
Suite 600
Houston, TX 77056
Attention: Janice McClure
Telephone: (800) 888-9648
Telecopier: (713) 960-0539
To the Trustee: The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services
First Franklin Series 2000-FF1
for payment, registration, transfer, exchange and tender of the Certificates:
BY HAND BY MAIL
- ------- -------
The Chase Manhattan Bank, The Chase Manhattan Bank,
450 West 33rd Street, 14th Floor 450 West 33rd Street, 14th Floor
New York, New York 10001 New York, New York 10001
Attention: Capital Markets Fiduciary Attention: Capital Markets Fiduciary
Services Services
First Franklin Series 2000-FF1 First Franklin Series 2000-FF1
Telephone: (212) 946-3246
Telecopier: (212) 946-8191
Any party hereto may change the address, telephone number or
telecopier number by notice to the other parties hereto in accordance with the
terms hereof. Any notice required or permitted to be given 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 when mailed, whether or not the
Certificateholder receives such notice. A copy of any notice required to be
telecopied hereunder also shall be mailed to the appropriate party in the
manner set forth above.
SECTION 12.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall 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 12.07. Notice to Rating Agencies.
The Trustee shall use its best efforts promptly to provide notice to
the Rating Agencies with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Servicing Termination Event that has not
been cured or waived;
3. The resignation or termination of the Servicer or the Trustee;
4. The repurchase or substitution of Mortgage Loans pursuant to or
as contemplated by Section 2.03;
5. The final payment to the Holders of any Class of Certificates;
6. Any change in the location of the Collection Account or the
Distribution Account; and
7. Any event that would result in the inability of the Trustee to
make advances regarding delinquent mortgage loans.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of each report to Certificateholders described in Section 4.02 and the
Servicer shall promptly furnish to each Rating Agency copies of the following:
1. Each annual statement as to compliance described in Section
3.20; and
2. Each annual independent public accountants' servicing report
described in Section 3.21.
Any such notice pursuant to this Section 12.07 shall be in writing
and shall be deemed to have been duly given if personally delivered at or
mailed by first class mail, postage prepaid, or by express delivery service to
Fitch IBCA, Inc., State Street Plaza, New York, New York 10004 and to Standard
& Poor's Ratings Services, 25 Broadway, New York, New York 10004, or such
other addresses as the Rating Agencies may designate in writing to the parties
hereto.
SECTION 12.08. Article and Section References.
All article and section references used in this Agreement, unless
otherwise provided, are to articles and sections in this Agreement.
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, in each case as of the day and year first above written.
MERRILL LYNCH MORTGAGE INVESTORS, INC.,
as Depositor
By:____________________________________
Name:__________________________________
Title:_________________________________
LITTON LOAN SERVICING LP,
as Servicer
By:____________________________________
Name:__________________________________
Title:_________________________________
THE CHASE MANHATTAN BANK
as Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of March 2000, before me, a notary public in and
for said State, personally appeared ______________________, known to me to be
a[n] ___________ of Merrill Lynch Mortgage Investors, Inc., one of the
corporations that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of March 2000, before me, a notary public in and
for said State, personally appeared _____________________, known to me to be
the __________________________________________ of
_____________________________, the general partner of Litton Loan Servicing
LP, the limited partnership that executed the within instrument, and also
known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of March 2000, before me, a notary public in and
for said State, personally appeared _________, known to me to be a _________
of The Chase Manhattan Bank, 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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________
Notary Public
[Notarial Seal]
EXHIBIT A-1
-----------
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATES
SERIES 2000-FF1, CLASS A
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE").
Series 2000-FF1, Class A Class Certificate Balance of
the Class A Certificates
Pass-Through Rate: Variable as of the Issue Date: $______
Date of Pooling and Servicing Agreement Denomination: $_____________
and Cut-off Date: March 1, 2000
Servicer: Litton Loan Servicing LP
First Distribution Date: April 20, 2000
Trustee: The Chase Manhattan Bank
No. 1
Issue Date:
CUSIP:
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN BELOW.
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund
consisting primarily of a pool of conventional one- to four-family first
mortgage loans formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MERRILL LYNCH MORTGAGE INVESTORS, INC., THE SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the Class Certificate Balance of the Class A Certificates) in that certain
beneficial ownership interest evidenced by all the Class A Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Merrill Lynch Mortgage Investors,
Inc. (hereinafter called the "Depositor," which term includes any successor
entity under the Agreement), the Servicer and 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 Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), from funds in
the Distribution Account in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class A Certificates on such Distribution Date
pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing
at least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class A Certificates the
aggregate initial Certificate Principal Balance of which is in excess of
$5,000,000, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Trustee may deduct a reasonable wire
transfer fee from any payment made by wire transfer. 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 at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Pass-Through Rate on the Class A Certificates on each
Distribution Date after the first Distribution Date will be a rate per annum
equal to the lesser of (i) One-Month LIBOR plus the applicable Pass-Through
Margin and (ii) the Available Funds Pass-Through Rate for such Distribution
Date.
This Certificate is one of a duly authorized issue of
Certificates designated as First Franklin Mortgage Loan Asset Backed
Certificates of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class A
Certificates.
The Class A 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 Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. 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 Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, any Servicer, 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 none of the Depositor,
the Servicer, the Trustee, the Certificate Registrar nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all Mortgage Loans and all property acquired in respect
of such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is subject to the aggregate Stated Principal Balance of the Mortgage Loans at
the time of purchase being 10% or less of the Maximum Collateral Balance.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE CHASE MANHATTAN BANK, as Trustee
By:____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, as Certificate Registrar
By:_______________________________
Authorized Signatory
Date of authentication:_______________
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right _________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and
Taxpayer Identification Number of assignee)____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
a Percentage Interest equal to ____% evidenced by the within Asset-Backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named
assignee and deliver such Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_______________________________________________________
Signature by or on behalf of assignor
_______________________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
for the account of _______________________________, account number_____________
___________________________,
or, if mailed by check, to ____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by _______________________________________________
______________________________________________________________________________.
the assignee named above, or ___________________________________, as its agent.
EXHIBIT A-2
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATES
SERIES 2000-FF1, CLASS M-1
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENT OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE").
Series 2000-FF1, Class M-1 Class Certificate Balance of
as of the Issue Date:
Pass-Through Rate: Variable $____________
Date of Pooling and Servicing Agreement Denomination: $______________
and Cut-off Date: March 1, 2000
Servicer: Litton Loan Servicing LP
First Distribution Date: April 20, 2000
Trustee: The Chase Manhattan Bank
No. 1
Issue Date:
CUSIP:
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN BELOW.
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund
consisting primarily of a pool of conventional one- to four-family first
mortgage loans formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MERRILL LYNCH MORTGAGE INVESTORS, INC., THE SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the Class Certificate Balance of the Class M-1 Certificates) in that
certain beneficial ownership interest evidenced by all the Class M-1
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and 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 Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), from funds in
the Distribution Account in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class M-1 Certificates on such Distribution Date
pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing
at least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class M-1 Certificates the
aggregate initial Certificate Principal Balance of which is in excess of
$5,000,000, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Trustee may deduct a reasonable wire
transfer fee from any payment made by wire transfer. 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 at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Pass-Through Rate on the Class M-1 Certificates on each
Distribution Date after the first Distribution Date will be a rate per annum
equal to the lesser of (i) One-Month LIBOR plus the applicable Pass-Through
Margin and (ii) the Available Funds Pass-Through Rate for such Distribution
Date.
This Certificate is one of a duly authorized issue of
Certificates designated as First Franklin Mortgage Loan Asset Backed
Certificates of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-1
Certificates.
The Class M-1 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 Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. 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 Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, any Servicer, 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 none of the Depositor,
the Servicer, the Trustee, the Certificate Registrar nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all Mortgage Loans and all property acquired in respect
of such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is subject to the aggregate Stated Principal Balance of the Mortgage Loans at
the time of purchase being 10% or less of the Maximum Collateral Balance.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE CHASE MANHATTAN BANK, as Trustee
By:____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-1 Certificates referred to in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, as Certificate Registrar
By:_______________________________
Authorized Signatory
Date of authentication:_______________
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right _________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and
Taxpayer Identification Number of assignee)____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
a Percentage Interest equal to ____% evidenced by the within Asset-Backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named
assignee and deliver such Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________________________
Signature by or on behalf of assignor
_____________________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
for the account of _______________________________, account number_____________
_______________________________________________________________________________
or, if mailed by check, to_____________________________________________________
__________________________________________________________________.
Applicable statements should be mailed to______________________________________
__________________________________________________________________.
This information is provided by________________________________________________
__________________________________________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-3
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATES
SERIES 2000-FF1, CLASS M-2
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE").
Series 2000-FF1, Class M-2 Class Certificate Balance of
the Class M-2 Certificates as
Pass-Through Rate: Variable of the Issue Date: $__________
Date of Pooling and Servicing Agreement Denomination: $______________
and Cut-off Date: March 1, 2000
Servicer: Litton Loan Servicing LP
First Distribution Date: April 20, 2000
Trustee: The Chase Manhattan Bank
No. 1
Issue Date:
CUSIP:
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN BELOW.
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund
consisting primarily of a pool of conventional one- to four-family first
mortgage loans formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MERRILL LYNCH MORTGAGE INVESTORS, INC., THE SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the Class Certificate Balance of the Class M-2 Certificates) in that
certain beneficial ownership interest evidenced by all the Class M-2
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and 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 Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), from funds in
the Distribution Account in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class M-2 Certificates on such Distribution Date
pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing
at least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class M-2 Certificates the
aggregate initial Certificate Principal Balance of which is in excess of
$5,000,000, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Trustee may deduct a reasonable wire
transfer fee from any payment made by wire transfer. 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 at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Pass-Through Rate on the Class M-2 Certificates on each
Distribution Date after the first Distribution Date will be a rate per annum
equal to the lesser of (i) One-Month LIBOR plus the applicable Pass-Through
Margin and (ii) the Available Funds Pass-Through Rate for such Distribution
Date.
This Certificate is one of a duly authorized issue of
Certificates designated as First Franklin Mortgage Loan Asset Backed
Certificates of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class M-2
Certificates.
The Class M-2 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 Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. 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 Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, any Servicer, 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 none of the Depositor,
the Servicer, the Trustee, the Certificate Registrar nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all Mortgage Loans and all property acquired in respect
of such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is subject to the aggregate Stated Principal Balance of the Mortgage Loans at
the time of purchase being 10% or less of the Maximum Collateral Balance.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE CHASE MANHATTAN BANK as Trustee
By:____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-2 Certificates referred to in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, as Certificate Registrar
By:_______________________________
Authorized Signatory
Date of authentication:_______________
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right _________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and
Taxpayer Identification Number of assignee)____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
a Percentage Interest equal to ____% evidenced by the within Asset-Backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named
assignee and deliver such Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_______________________________________________________
Signature by or on behalf of assignor
_______________________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________
_______________________________________________________________________________
______________________________________________________________________________.
for the account of _______________________________, account number_____________
__________________________________________,
or, if mailed by check, to_____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by________________________________________________
______________________________________________________________________________.
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-4
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATES
SERIES 2000-FF1, CLASS B
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE").
Series 2000-FF1, Class B Class Certificate Balance of the
Class B Certificates as of the
Pass-Through Rate: Variable Issue Date: $____________
Date of Pooling and Servicing Agreement and Denomination: $______________
Cut-off Date: March 1, 2000
Servicer: Litton Loan Servicing LP
First Distribution Date: April 20, 2000
Trustee: The Chase Manhattan Bank
No. 1
Issue Date:
CUSIP:
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN BELOW.
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund
consisting primarily of a pool of conventional one- to four-family first
mortgage loans formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MERRILL LYNCH MORTGAGE INVESTORS, INC., THE SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the Class Certificate Balance of the Class B Certificates) in that certain
beneficial ownership interest evidenced by all the Class B Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Merrill Lynch Mortgage Investors,
Inc. (hereinafter called the "Depositor," which term includes any successor
entity under the Agreement), the Servicer and 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 Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), from funds in
the Distribution Account in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class B Certificates on such Distribution Date
pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing
at least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class B Certificates the
aggregate initial Certificate Principal Balance of which is in excess of
$5,000,000, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Trustee may deduct a reasonable wire
transfer fee from any payment made by wire transfer. 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 at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Pass-Through Rate on the Class B Certificates on each
Distribution Date after the first Distribution Date will be a rate per annum
equal to the lesser of (i) One-Month LIBOR plus the applicable Pass-Through
Margin and (ii) the Available Funds Pass-Through Rate for such Distribution
Date.
This Certificate is one of a duly authorized issue of
Certificates designated as First Franklin Mortgage Loan Asset Backed
Certificates of the Series specified on the face hereof (herein called the
"Certificates") and representing a Percentage Interest in the Class B
Certificates.
The Class B 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 Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. 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 Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, any Servicer, 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 none of the Depositor,
the Servicer, the Trustee, the Certificate Registrar nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all Mortgage Loans and all property acquired in respect
of such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is subject to the aggregate Stated Principal Balance of the Mortgage Loans at
the time of purchase being 10% or less of the Maximum Collateral Balance.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE CHASE MANHATTAN BANK, as Trustee
By:____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, as Certificate Registrar
By:_______________________________
Authorized Signatory
Date of authentication:_______________
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right _________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and
Taxpayer Identification Number of assignee)____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
a Percentage Interest equal to ____% evidenced by the within Asset-Backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named
assignee and deliver such Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
___________________________________________________
Signature by or on behalf of assignor
___________________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________
_______________________________________________________________________________
for the account of _______________________________, account number ___________,
or, if mailed by check, to ____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed
______________________________________________________________________________
______________________________________________________________________________
to This information is provided by______
_______________________________________________________________________________
_______________________________________________________________________________
the assignee named above, or ________________________________________, as its
agent.
EXHIBIT A-5
MORTGAGE LOAN ASSET BACKED CERTIFICATES
SERIES 2000-FF1, CLASS X
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CLASS X CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES
OF THIS SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS X CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH
TIME AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CLASS X CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS X CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (1) AN AFFIDAVIT
TO THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT SUCH TRANSFEREE IS
NOT (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 IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF
THIS CLASS X 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 X CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS
OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(d) OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT
IS A DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING
BENEFICIAL OWNERSHIP OF THIS CLASS X CERTIFICATE.
Series 2000-FF1, Class X
Date of Pooling and Servicing Agreement Servicer: Litton Loan Servicing LP
March 1, 2000
Cut-off Date: March 1, 2000 Trustee: The Chase Manhattan Bank
First Distribution Date: April 20, 2000 Issue Date: [__________]
No. 1
Percentage Interest: 100%
MORTGAGE LOAN ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund
consisting primarily of a pool of conventional one- to four-family first
mortgage loans formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MERRILL LYNCH MORTGAGE INVESTORS, INC., THE SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that Merrill Lynch, Pierce Fenner Smith
Incorporated is the registered owner of a Percentage Interest set forth above
in that certain beneficial ownership interest evidenced by all the Class X
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and 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 Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), from funds in
the Distribution Account in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class X Certificates on such Distribution Date
pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing
at least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class X Certificates the
aggregate Percentage Interest of which is 100% of the Class X Certificates, or
by check mailed by first class mail to the address of the Person entitled
thereto, as such name and address shall appear on the Certificate Register,
provided that the Trustee may deduct a reasonable wire transfer fee from any
payment made by wire transfer. 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 at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Loan Asset Backed Certificates of the
Series specified on the face hereof (herein called the "Certificates") and
representing the Percentage Interest specified on the face hereof.
The Class X 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 Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. 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 Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No transfer of this Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification. In the event that a transfer is to be made
without registration or qualification, the Trustee and the Certificate
Registrar shall require, in order to assure compliance with such laws, either
(i) that the Certificateholder desiring to effect the transfer and such
Certificateholder's prospective transferee each execute a representation
letter in the form described by the Agreement certifying to the Trustee and
the Certificate Registrar the facts surrounding the transfer, or (ii) that the
Trustee and the Certificate Registrar shall require an Opinion of Counsel
satisfactory to them that such transfer may be made without such registration
or qualification, which Opinion of Counsel shall not be an expense of the
Depositor, the Trustee or the Certificate Registrar, in their respective
capacities as such. None of the Depositor, the Certificate Registrar nor the
Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any such
Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Depositor, the Certificate Registrar, any
Master Servicer and any Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Except as otherwise set forth in the next succeeding paragraph,
no transfer of a Certificate or any interest therein may be made to employee
benefit plans and certain other retirement plans and arrangements, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested that are subject to the fiduciary responsibility
provisions of ERISA and Section 4975 of the Code ("Plans") or any person who
is directly or indirectly purchasing the Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan,
unless the prospective transferee provides the Trustee with an opinion of
counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or cause the Master Servicer or Trustee to be deemed a fiduciary of such
Plan or result in the imposition of an excise tax under Section 4975 of the
Code. In the absence of its having received the opinion of counsel
contemplated by the preceding sentence, the Trustee shall (unless the next
succeeding paragraph applies) require the prospective transferee of any
Certificate to certify that it is neither (i) a Plan nor (ii) a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (including any insurance
company using funds in its general or separate accounts that may constitute
"plan assets").
The Holder of this Certificate, by its acceptance hereof, shall
be deemed for all purposes to have consented to the provisions of Section 5.02
of the Agreement and to any amendment of the Agreement deemed necessary by
counsel of the Depositor to ensure that the transfer of this Certificate to
any Person other than a Permitted Transferee or any other Person will not
cause the REMIC Trust to cease to qualify as a REMIC or cause the imposition
of a tax upon the REMIC Trust.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, any Servicer, 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 none of the Depositor,
the Servicer, the Trustee, the Certificate Registrar nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all Mortgage Loans and all property acquired in respect
of such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is subject to the aggregate Stated Principal Balance of the Mortgage Loans at
the time of purchase being 10% or less of the Maximum Collateral Balance.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: [____________]
THE CHASE MANHATTAN BANK
as Trustee
By:____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated: January 6, 1999
THE CHASE MANHATTAN BANK,
as Certificate Registrar
By:_______________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right _________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and
Taxpayer Identification Number of assignee)____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
a Percentage Interest equal to ____% evidenced by the within Asset-Backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named
assignee and deliver such Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
___________________________________________________________
Signature by or on behalf of assignor
___________________________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
for the account of _______________________________, account number ___________,
or, if mailed by check, to_____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to
______________________________________________________________________________
______________________________________________________________________________
This information is provided by
_______________________________________________________________________________
_______________________________________________________________________________
the assignee named above, or ________________________________________, as its
agent.
EXHIBIT A-6
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATES
SERIES 2000-FF1, CLASS R
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS OWNERSHIP OF "RESIDUAL INTERESTS" IN TWO SEPARATE "REAL
ESTATE MORTGAGE INVESTMENT CONDUITS" (THE MASTER REMIC AND THE
SUBSIDIARY REMIC, EACH A "REMIC"), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE").
THIS CLASS R CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES
OF THIS SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH
TIME AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CLASS R CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (1) AN AFFIDAVIT
TO THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT SUCH TRANSFEREE IS
NOT (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 IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF
THIS CLASS R CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT
OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO
BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS
OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(d) OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT
IS A DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING
BENEFICIAL OWNERSHIP OF THIS CLASS R CERTIFICATE.
Series 2000-FF1, Class R Class Certificate Balance of the
Class R Certificates as of the
Date of Pooling and Servicing Agreement Issue Date: $___________
and Cut-off Date: March 1, 2000
Servicer: Litton Loan Servicing LP
First Distribution Date: April 20, 2000
Trustee: The Chase Manhattan Bank
No. 1
Issue Date:
Percentage Interest: 100%
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund
consisting primarily of a pool of conventional one- to four-family first
mortgage loans formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MERRILL LYNCH MORTGAGE INVESTORS, INC., THE SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that _____________ is the registered owner of a
Percentage Interest set forth above in that certain beneficial ownership
interest evidenced by all the Class R Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Merrill Lynch Mortgage Investors, Inc. (hereinafter called
the "Depositor," which term includes any successor entity under the
Agreement), the Servicer and 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 Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), from funds in
the Distribution Account in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class R Certificates on such Distribution Date
pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing
at least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class R Certificates the
aggregate Percentage Interest of which is in excess of a 66% Percentage
Interest of the Class R Certificates, or by check mailed by first class mail
to the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register, provided that the Trustee may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
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 at the office or
agency appointed by the Trustee for that purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as First Franklin Mortgage Loan Asset Backed
Certificates of the Series specified on the face hereof (herein called the
"Certificates") and representing the Percentage Interest specified on the face
hereof.
The Class R 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 Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. 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 Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No transfer of this Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification. In the event that a transfer is to be made
without registration or qualification, the Trustee and the Certificate
Registrar shall require, in order to assure compliance with such laws, either
(i) that the Certificateholder desiring to effect the transfer and such
Certificateholder's prospective transferee each execute a representation
letter in the form described by the Agreement certifying to the Trustee and
the Certificate Registrar the facts surrounding the transfer, or (ii) that the
Trustee and the Certificate Registrar shall require an Opinion of Counsel
satisfactory to them that such transfer may be made without such registration
or qualification, which Opinion of Counsel shall not be an expense of the
Depositor, the Trustee or the Certificate Registrar, in their respective
capacities as such. None of the Depositor, the Certificate Registrar nor the
Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any such
Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and
any Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
Except as otherwise set forth in the next succeeding paragraph,
no transfer of a Certificate or any interest therein may be made to employee
benefit plans and certain other retirement plans and arrangements, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested that are subject to the fiduciary responsibility
provisions of ERISA and Section 4975 of the Code ("Plans") or any person who
is directly or indirectly purchasing the Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan,
unless the prospective transferee provides the Trustee with an opinion of
counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or cause the Servicer or Trustee to be deemed a fiduciary of such Plan or
result in the imposition of an excise tax under Section 4975 of the Code. In
the absence of its having received the opinion of counsel contemplated by the
preceding sentence, the Trustee shall (unless the next succeeding paragraph
applies) require the prospective transferee of any Certificate to certify that
it is neither (i) a Plan nor (ii) a Person who is directly or indirectly
purchasing such Certificate on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan (including any insurance company using funds in
its general or separate accounts that may constitute "plan assets").
The Holder of this Certificate, by its acceptance hereof, shall
be deemed for all purposes to have consented to the provisions of Section 5.02
of the Agreement and to any amendment of the Agreement deemed necessary by
counsel of the Depositor to ensure that the transfer of this Certificate to
any Person other than a Permitted Transferee or any other Person will not
cause the REMIC Trust to cease to qualify as a REMIC or cause the imposition
of a tax upon the REMIC Trust.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, any Servicer, 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 none of the Depositor,
the Servicer, the Trustee, the Certificate Registrar nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all Mortgage Loans and all property acquired in respect
of such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is subject to the aggregate Stated Principal Balance of the Mortgage Loans at
the time of purchase being 10% or less of the Maximum Collateral Balance.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
THE CHASE MANHATTAN BANK, as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
THE CHASE MANHATTAN BANK, as Certificate Registrar
By:________________________________________________
Authorized Signatory
Date of authentication:_______________
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right _________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and
Taxpayer Identification Number of assignee)____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
a Percentage Interest equal to ____% evidenced by the within Asset Backed
Floating Rate Certificate and hereby authorize(s) the registration of transfer
of such interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a
new Certificate of a like Percentage Interest and Class to the above named
assignee and deliver such Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________________________
Signature by or on behalf of assignor
_____________________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
for the account of______________________________, account number_______________
or, if mailed by check, to_____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
_______________________________________________________________________________
_______________________________________________________________________________
This information is provided by________________________________________________
_______________________________________________________________________________
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-7
MORTGAGE LOAN ASSET BACKED CERTIFICATES
SERIES 2000-FF1, CLASS BB
THIS CERTIFICATE REPRESENTS AN OBLIGATION OF THE CLASS X CERTIFICATE
AND DOES NOT REPRESENT AN INTEREST IN THE REMIC.
THIS CLASS BB CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES
OF THIS SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS BB CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH
TIME AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CLASS BB CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS BB
CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (1)
AN AFFIDAVIT TO THE CERTIFICATE REGISTRAR AND THE TRUSTEE THAT SUCH
TRANSFEREE IS NOT (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 IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF
THIS CLASS X 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 BB CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS
OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(d) OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT
IS A DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING
BENEFICIAL OWNERSHIP OF THIS CLASS BB CERTIFICATE.
Series 2000-FF1, Class BB Notional Amount of the Class BB
Certificates as of the Issue Date:
Pass-Through Rate: 5.50%
Servicer: Litton Loan Servicing LP
Date of Pooling and Servicing Agreement
March 1, 2000 Trustee: The Chase Manhattan Bank
Cut-off Date: March 1, 2000 Issue Date: [_________]
First Distribution Date: April 20, 2000
No. 1
MORTGAGE LOAN ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund
consisting primarily of a pool of conventional one- to four-family first
mortgage loans formed and sold by
MERRILL LYNCH MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MERRILL LYNCH MORTGAGE INVESTORS, INC., THE SERVICER, THE TRUSTEE OR
ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
This certifies that Merrill Lynch, Pierce Fenner Smith
Incorporated is the registered owner of a Percentage Interest set forth above
in that certain beneficial ownership interest evidenced by all the Class BB
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Merrill Lynch
Mortgage Investors, Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and 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 Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), from funds in
the Distribution Account in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of Class BB Certificates on such Distribution Date
pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing
at least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class BB Certificates the
aggregate initial Certificate Principal Balance of which is in excess of
$2,500,000, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Trustee may deduct a reasonable wire
transfer fee from any payment made by wire transfer. 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 at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Loan Asset Backed Certificates of the
Series specified on the face hereof (herein called the "Certificates") and
representing the Percentage Interest specified on the face hereof.
The Class BB 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 Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Servicer, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights. 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 Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No transfer of this Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction that does not require such
registration or qualification. In the event that a transfer is to be made
without registration or qualification, the Trustee and the Certificate
Registrar shall require, in order to assure compliance with such laws, either
(i) that the Certificateholder desiring to effect the transfer and such
Certificateholder's prospective transferee each execute a representation
letter in the form described by the Agreement certifying to the Trustee and
the Certificate Registrar the facts surrounding the transfer, or (ii) that the
Trustee and the Certificate Registrar shall require an Opinion of Counsel
satisfactory to them that such transfer may be made without such registration
or qualification, which Opinion of Counsel shall not be an expense of the
Depositor, the Trustee or the Certificate Registrar, in their respective
capacities as such. None of the Depositor, the Certificate Registrar nor the
Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any such
Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Depositor, the Certificate Registrar, any
Master Servicer and any Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Except as otherwise set forth in the next succeeding paragraph,
no transfer of a Certificate or any interest therein may be made to employee
benefit plans and certain other retirement plans and arrangements, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested that are subject to the fiduciary responsibility
provisions of ERISA and Section 4975 of the Code ("Plans") or any person who
is directly or indirectly purchasing the Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan,
unless the prospective transferee provides the Trustee with an opinion of
counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or cause the Master Servicer or Trustee to be deemed a fiduciary of such
Plan or result in the imposition of an excise tax under Section 4975 of the
Code. In the absence of its having received the opinion of counsel
contemplated by the preceding sentence, the Trustee shall (unless the next
succeeding paragraph applies) require the prospective transferee of any
Certificate to certify that it is neither (i) a Plan nor (ii) a Person who is
directly or indirectly purchasing such Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (including any insurance
company using funds in its general or separate accounts that may constitute
"plan assets").
The Holder of this Certificate, by its acceptance hereof, shall
be deemed for all purposes to have consented to the provisions of Section 5.02
of the Agreement in so far as they relate to the Class BB Certificates
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, any Servicer, 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 none of the Depositor,
the Servicer, the Trustee, the Certificate Registrar nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all Mortgage Loans and all property acquired in respect
of such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all Mortgage Loans
and all property acquired in respect of any Mortgage Loan at a price
determined as provided in the Agreement. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase
is subject to the aggregate Stated Principal Balance of the Mortgage Loans at
the time of purchase being 10% or less of the Maximum Collateral Balance.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: January 6, 1999
THE CHASE MANHATTAN BANK
as Trustee
By:____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class BB Certificates referred to in the
within-mentioned Agreement.
Dated: January 6, 1999
THE CHASE MANHATTAN BANK,
as Certificate Registrar
By:_______________________________
Authorized Signatory
ABBREVIATIONS
--------------
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right _________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto _________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name, address including postal
zip code, and Taxpayer Identification Number of assignee)_____________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
a Percentage Interest equal to ____% evidenced by the within Asset-Backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named
assignee and deliver such Certificate to the following address:
_______________________________________________________________________________
______________________________________________________________________________.
Dated:
_____________________________________________________
Signature by or on behalf of assignor
_____________________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________
_______________________________________________________________________________
______________________________________________________________________________.
for the account of _______________________________, account number____________,
or, if mailed by check, to_____________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to______________________________________
______________________________________________________________________________.
This information is provided by________________________________________________
______________________________________________________________________________.
the assignee named above, or ____________________________________, as its agent.
EXHIBIT B-1
FORM OF TRUSTEE'S INITIAL CERTIFICATION
_________________, 2000
Merrill Lynch Mortgage Investors, Inc.
North Tower
World Financial Center
New York, New York 10281
First Franklin Financial Corporation
2150 North First Street
San Jose, CA 95131
Re: Pooling and Servicing Agreement, dated as of March
1, 2000, among Merrill Lynch Mortgage Investors,
Inc., Litton Loan Servicing LP and The Chase
Manhattan Bank - First Franklin Mortgage Loan Asset
Backed Certificates, Series 2000-FF1
Ladies and Gentlemen:
Pursuant to Section 2.02 of the Agreement, we certify that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in the
exception report annexed hereto as not being covered by this certification),
(i) the Mortgage Note included in each Mortgage File required to be delivered
to us pursuant to the Agreement is in our possession and (ii) such Mortgage
Note has been reviewed by us and appears regular on its face and relates to
such Mortgage Loan.
Attached is the Trustee's preliminary exceptions in accordance with
Section 2.02 of the Agreement. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Agreement.
The Trustee has made no independent examination of any documents contained in
each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
due authorization, recordability or genuineness of any of the documents
contained in the Mortgage File of any of the Mortgage Loans identified on the
Mortgage Loan Schedule, or (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan.
THE CHASE MANHATTAN BANK,
as Trustee
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT B-2
FORM OF TRUSTEE FINAL CERTIFICATION
_______________, 2000
Merrill Lynch Mortgage Investors, Inc.
North Tower
World Financial Center
New York, New York 10281
First Franklin Financial Corporation
2150 North First Street
San Jose, CA 95131
Re: Pooling and Servicing Agreement, dated as of March
1, 2000, among Merrill Lynch Mortgage Investors,
Inc., Litton Loan Servicing LP and The Chase
Manhattan Bank, - First Franklin Mortgage Loan
Asset Backed Certificates, Series 2000-FF1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement, the undersigned, as Trustee, hereby certifies that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed on the attachment hereto), it or a Custodian on
its behalf has received:
(i) the original recorded Mortgage, and the original
recorded power of attorney, if the Mortgage was executed pursuant to
a power of attorney, or a certified copy thereof in those instances
where the public recording office retains the original or where the
original has been lost;
(ii) an original recorded Assignment of the Mortgage to the
Trustee together with the original recorded Assignment or Assignments
of the Mortgage showing a complete chain of assignment from the
originator, or a certified copy of such Assignments in those
instances where the public recording retains the original or where
original has been lost; and
(iii) the original lender's title insurance policy.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in the Mortgage File of 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.
THE CHASE MANHATTAN BANK,
as Trustee
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT C
MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT D-1
REQUEST FOR RELEASE
(for Trustee/Custodian)
Loan Information
- ----------------
Name of Mortgagor: _______________________
Servicer
Loan No.: _______________________
Trustee/Custodian
Name: The Chase Manhattan Bank
Address:
Trustee/Custodian
Mortgage File No.: _______________________
Depositor
- ---------
Name: MERRILL LYNCH MORTGAGE INVESTORS, INC.
Address: _______________________________________
Certificates: First Franklin Mortgage Loan Asset Backed
Certificates, Series 2000-FF1.
The undersigned Servicer hereby acknowledges that it has received
from The Chase Manhattan Bank, as Trustee for the Holders of First Franklin
Mortgage Loan Asset Backed Certificates, Series 2000-FF1, the documents
referred to below (the "Documents"). All capitalized terms not otherwise
defined in this Request for Release shall have the meanings given them in the
Pooling and Servicing Agreement, dated as of March 1, 2000, among the Trustee,
the Depositor and the Servicer (the "Pooling and Servicing Agreement").
( ) Promissory Note dated _______________, 19__, in the original
principal sum of $__________, made by _____________________, payable
to, or endorsed to the order of, the Trustee.
( ) Mortgage recorded on _________________________ as instrument no.
____________________ in the County Recorder's Office of the County of
_________________, State of __________________ in book/reel/docket
_________________ of official records at page/image _____________.
( ) Deed of Trust recorded on ___________________ as instrument no.
________________ in the County Recorder's Office of the County of
_________________, State of ____________________ in book/reel/docket
_________________ of official records at page/image ______________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
___________________ as instrument no. _________ in the County
Recorder's Office of the County of _______________, State of
_______________________ in book/reel/docket ____________ of official
records at page/image ____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Servicer shall not cause or permit the Documents to
become subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor shall
the Servicer assert or seek to assert any claims or rights of setoff
to or against the Documents or any proceeds thereof.
(3) The Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the
need therefor no longer exists, unless the Mortgage Loan relating to
the Documents has been liquidated and the proceeds thereof have been
remitted to the Collection Account and except as expressly provided
in the Agreement.
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Servicer shall at all times be earmarked for the account of the
Trustee, and the Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the Servicer's
possession, custody or control.
Dated:
[SERVICER]
By: ____________________________________
Name: _________________________________
Title: ___________________________________
EXHIBIT D-2
REQUEST FOR RELEASE
[Mortgage Loans Paid in Full]
OFFICERS' CERTIFICATE AND TRUST RECEIPT
FIRST FRANKLIN MORTGAGE LOAN ASSET BACKED CERTIFICATES
SERIES 2000-FF1
____________________________________________________ HEREBY CERTIFIES THAT
HE/SHE IS AN OFFICER OF THE SERVICER, HOLDING THE OFFICE SET FORTH BENEATH
HIS/HER SIGNATURE, AND HEREBY FURTHER CERTIFIES AS FOLLOWS:
WITH RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
ALL PAYMENTS OF PRINCIPAL, PREMIUM (IF ANY), AND INTEREST HAVE BEEN MADE.
LOAN NUMBER:______________________________________ BORROWER'S NAME:
COUNTY: _________________________
WE HEREBY CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS,
WHICH ARE REQUIRED TO BE DEPOSITED IN THE COLLECTION ACCOUNT PURSUANT TO
SECTION 3.10 OF THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE
CREDITED.
DATED:
/ / VICE PRESIDENT
/ / ASSISTANT VICE PRESIDENT
EXHIBIT E
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
_______________________________________________________, being duly sworn,
deposes, represents and warrants as follows:
1. I am a ______________________ of ____________________________ (the
"Owner") a corporation duly organized and existing under the laws of
______________, the record owner of Merrill Lynch Mortgage Investors, Inc.,
First Franklin Mortgage Asset Backed Certificates, Series 2000-FF1, Class R
(the "Class R Certificates"), on behalf of whom I make this affidavit and
agreement. Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement pursuant to
which the Class R Certificates were issued.
2. (a) The Owner understands that the Certificate is not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and is being transferred to it in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b)
the Owner is an "accredited investor," as defined in Regulation D under the
Act, and has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of investments in the
Certificate, (c) the Owner has had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificate
and all matters relating to its decision to purchase the Certificate, (d) the
Owner is not an employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended, nor a plan subject to
Section 4975 of the Internal Revenue Code of 1986 (each of the foregoing, a
"Plan"), nor is it acting on behalf of any Plan, (e) the Owner is acquiring
the Certificate for investment for its own account and not with a view to any
distribution of such Certificate (but without prejudice to its right at all
times to sell or otherwise dispose of the Certificate in accordance with
clause (g) below), (f) the Owner has not offered or sold any Certificate to,
or solicited offers to buy any Certificate from, any person, or otherwise
approached or negotiated with any person with respect thereto, or taken any
other action that would result in a violation of Section 5 of the Act, and (g)
the Owner will not sell, transfer or otherwise dispose of any Certificates
unless such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements.
3. The Owner (i) is and will be a "Permitted Transferee" as of
____________________, 199___ and (ii) is acquiring the Class R Certificates
for its own account or for the account of another Owner from which it has
received an affidavit in substantially the same form as this affidavit. A
"Permitted Transferee" is any person other than a "disqualified organization"
or a possession of the United States. For this purpose, a "disqualified
organization" means the United States, any state or political subdivision
thereof, 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, 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.
4. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificates to disqualified organizations under the
Internal Revenue Code of 1986 that applies to all transfers of the Class R
Certificates after March 31, 1988; (ii) that such tax would be on the
transferor or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a non-Permitted Transferee, 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 a Permitted Transferee and, at the time of transfer,
such person does not have actual knowledge that the affidavit is false; and
(iv) that each of the Class R Certificates may be a "noneconomic residual
interest" within the meaning of proposed Treasury regulations promulgated
under the Code and that the transferor of a "noneconomic residual interest"
will remain liable for any taxes due with respect to the income on such
residual interest, unless no significant purpose of the transfer is to impede
the assessment or collection of tax.
5. The Owner is aware of the tax imposed on a "pass-through entity"
holding the Class R Certificates if, at any time during the taxable year of
the pass-through entity, a non-Permitted Transferee 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.)
6. The Owner is aware that the Trustee will not register the transfer
of any Class R Certificate unless the transferee, or the transferee's agent,
delivers to the Trustee, among other things, an affidavit in substantially the
same form as this affidavit. 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.
7. The Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a
reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
8. The Owner's taxpayer identification number is ___________________.
9. The Owner has reviewed the restrictions set forth on the face of
the Class R Certificates and the provisions of Section 5.02(d) of the Pooling
and Servicing Agreement under which the Class R Certificates were issued (in
particular, clauses (iii)(A) and (iii)(B) of Section 5.02(d) 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 that the Owner holds such
Certificate in violation of Section 5.02(d)); and that the Owner expressly
agrees to be bound by and to comply with such restrictions and provisions.
10. The Owner is not acquiring and will not transfer the Class R
Certificates in order to impede the assessment or collection of any tax.
11. The Owner anticipates that it will, so long as it holds the Class
R Certificates, have sufficient assets to pay any taxes owed by the holder of
such Class R Certificates, and hereby represents to and for the benefit of the
person from whom it acquired the Class R Certificates that the Owner intends
to pay taxes associated with holding such Class R Certificates as they become
due, fully understanding that it may incur tax liabilities in excess of any
cash flows generated by the Class R Certificates. The Owner has provided
financial statements or other financial information requested by the
Transferor in connection with the transfer of the Residual Certificates to
permit the Transferor to access the financial capability of the Owner to pay
such taxes.
12. The Owner has no present knowledge that it may become insolvent
or subject to a bankruptcy proceeding for so long as it holds the Class R
Certificates.
13. 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
Certificates remain outstanding.
14. The Owner is not acquiring the Class R Certificates with the
intent to transfer the Class R Certificates to any person or entity that will
not have sufficient assets to pay any taxes owed by the holder of such Class R
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain outstanding.
15. The Owner will, in connection with any transfer that it makes of
the Class R Certificates, obtain from its transferee the representations
required by Section 5.02(d) of the Pooling and Servicing Agreement under which
the Class R Certificate were issued and will not consummate any such transfer
if it knows, or knows facts that should lead it to believe, that any such
representations are false.
16. The Owner will, in connection with any transfer that it makes of
the Class R Certificates, deliver to the Trustee an affidavit, which
represents and warrants that it is not transferring the Class R Certificates
to impede the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to pay any
taxes owed by such transferee as holder of the Class R Certificates; (ii) may
become insolvent or subject to a bankruptcy proceeding for so long as the
Class R Certificates remains outstanding; and (iii) is not a "Permitted
Transferee".
17. The Owner is a citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for United States federal income tax purposes) created or
organized in, or under the laws of, the United States, any state thereof or
the District of Columbia (unless, in the case of a partnership, Treasury
regulations are adopted that provide otherwise), an estate whose income from
sources without the United States may be included in gross income for United
States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust.
18. The Owner is not an "electing large partnership" within the
meaning of Section 775 of the Code.
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 [Vice] President, attested by its [Assistant] Secretary, this ____ day
of __________, 199___.
[OWNER]
By: _____________________________
Name: ___________________________
Title: [Vice] President
Personally appeared before me the above-named , known or proved
to me to be the same person who executed the foregoing instrument and to be a
[Vice] President of the Owner, and acknowledged to me that [he/she] executed
the same as [his/her] free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this ____ day of __________,
199___.
Notary Public
County of______________________
State of_______________________
My Commission expires:
FORM OF TRANSFEROR AFFIDAVIT
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
_____________________________________________________________________________,
being duly sworn, deposes, represents and warrants as follows:
1. I am a ____________________ of _____________________________
(the "Owner"), a corporation duly organized and existing under the laws of
______________, on behalf of whom I make this affidavit.
2. The Owner is not transferring the Residual Certificates to
impede the assessment or collection of any tax.
3. The Owner has no actual knowledge that the Person that is the
proposed transferee (the "Purchaser") of the Class R Certificates: (i) has
insufficient assets to pay any taxes owed by such proposed transferee as
holder of the Class R Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Class R Certificates remain
outstanding; and (iii) is not both a United States and a Permitted Transferee.
4. The Owner understands that the Purchaser has delivered to the
Trustee a transfer affidavit and agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit E. The Owner does not know or believe that
any representation contained therein is false.
5. At the time of transfer, the Owner has either (i) (A)
conducted a reasonable investigation of the financial condition of the
Purchaser as contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i)
and, as a result of that investigation, the Owner has determined that the
Purchaser has historically paid its debts as they became due and has found no
significant evidence to indicate that the Purchaser will not continue to pay
its debts as they become due in the future and (B) has determined that the
present value of the anticipated tax liabilities associated with the holding
of the Residual Certificate does not exceed the sum of (1) the present value
of any consideration given to the Purchaser to acquire the Certificate, (2)
the present value of the expected future distributions on the Certificate, and
(3) the present value of the anticipated tax savings associated with holding
the Certificate as the REMIC generates losses (having mace such determination
by (I) assuming that the Purchaser pays tax at a rate equal to the highest
rate of tax specified in Section 11(b)(1) of the Internal Revenue Code
("Code"), and (II) utilizing a discount rate for present valuations equal to
the applicable Federal rate prescribed by Section 1274(d) of the Code
compounded semi-annually (or a lower discount rate based on the Purchaser
having demonstrated that it regularly borrows, in the course of its trade or
business, substantial funds at such lower rate from unrelated third parties)),
or (ii) based on an adequate review of the relevant facts and circumstances,
neither knows nor should know that the Purchaser would be unwilling or unable
to pay any taxes due on its share of the taxable income of the REMIC. The
Owner understands that the transfer of a Residual Certificate may not be
respected for United States income tax purposes (and the Owner may continue to
be liable for United States income taxes associated therewith) unless the
Owner has conducted such an investigation.
6. Neither the Owner nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Certificate,
any interest in the Certificate or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Certificate, any interest in the Certificate or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action which
would constitute a distribution of the Certificate under the Securities Act of
1933, as amended (the "1933 Act"), or which would render the disposition of
the Certificate a violation of Section 5 of the 1933 Act or require
registration pursuant thereto.
7. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement
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 [Vice] President, this ____ day of ___________, 200___.
[OWNER]
By: _____________________________
Name: ___________________________
Title: [Vice] President
Personally appeared before me the above-named , known or proved
to me to be the same person who executed the foregoing instrument and to be a
[Vice] President of the Owner, and acknowledged to me that [he/she] executed
the same as [his/her] free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this ____ day of __________,
200___.
Notary Public
County of _____________________
State of _______________________
My Commission expires:
EXHIBIT F
PARAMETERS FOR SUBSEQUENT MORTGAGE LOANS
[RESERVED]
EXHIBIT G
FORM OF LOST NOTE AFFIDAVIT
First Franklin Financial Corporation, a Delaware corporation
(the "Mortgage Loan Originator"), by its undersigned authorized
representative, hereby certifies:
Pursuant to the Mortgage Loan Purchase Agreement, dated
___________ __, 2000, between the Mortgage Loan Originator and Merrill Lynch
Mortgage Investors, Inc. (the "Depositor"), the Mortgage Loan Originator is
granting all of its right, title and interest in and to the Mortgage Loan
identified below to the Depositor. Terms used but not defined herein have the
respective meanings assigned to them in the Mortgage Loan Purchase Agreement.
Mortgage Loan Number:
Maker:
Original Principal Amount:
Original Mortgage Note Date:
Maturity Date:
The Mortgage Loan Originator is the current owner and holder of
the indebtedness evidenced by the original Mortgage Note.
After diligent search, the Mortgage Loan Originator has been
unable to locate the original Mortgage Note and believes it to be lost or
misplaced.
A true, complete and correct photocopy of the original Mortgage
Note is attached hereto.
If at any time the Mortgage Loan Originator locates the original
Mortgage Note, the Mortgage Loan Originator shall endorse such original
Mortgage Note in the following form: "Pay to the order of The Chase Manhattan
Bank, as Trustee for the registered holders of Merrill Lynch Mortgage
Investors, Inc., First Franklin Mortgage Loan Asset Backed Certificates,
Series 2000-FF1, without recourse," and shall promptly deliver to the Trustee
the original Mortgage Note so endorsed, with all prior and intervening
endorsements showing a complete chain of endorsement from the originator to
the Mortgage Loan Originator.
The Mortgage Loan Originator hereby indemnifies the Depositor,
the Trustee and the Certificateholders from and against any and all losses,
liabilities, damages, claims or expenses of whatever kind (including without
limitation attorneys' fees and disbursements) arising from or in connection
with the Mortgage Loan Originator's failure to have delivered the original
Mortgage Note (as required under the Mortgage Loan Purchase Agreement) to the
Trustee as designee of the Depositor, including without limitation any such
losses, liabilities, damages, claims or expenses arising from or in connection
with any claim by any third party who is the holder of such indebtedness by
virtue of its possession of such original Mortgage Note.
This Lost Note Affidavit shall inure to the benefit of the
Depositor, the Trustee and the Certificateholders and their respective
successors and permitted assigns.
Dated:
FIRST FRANKLIN FINANCIAL CORPORATION
By:______________________________
Name:____________________________
Title:_____________________________
Schedule 1
MORTGAGE LOAN SCHEDULE
EXHIBIT H
SUBSEQUENT TRANSFER AGREEMENT
[RESERVED]
EXHIBIT I
FORM OF REMITTANCE REPORT
EXHIBIT J
OFFICER'S CERTIFICATE WITH RESPECT TO PREPAYMENTS
Officer's Certificate
First Franklin Mortgage Loan Asset Backed Certificates, Series 2000-FF1
< Date >
Via Facsimile
The Chase Manhattan Bank, Trustee
450 West 33rd Street, 15th Floor
New York, NY 10001
Re: Pre-Payments
Dear Sir or Madam:
__________________ hereby certifies that he/she is an officer of
the Servicer, holding the office set forth beneath his/her name and hereby
further certifies as follows:
With respect to the Mortgage Loans, as the term is defined in
the Pooling and Servicing Agreement, set forth in the attached schedule:
1. A Principal Prepayment in full was received during the related Collection
Period;
2. Any Prepayment Premiums due under the terms of the Mortgage Note with
respect to such Principal Prepayment in full was received from the
mortgagor and deposited in the Collection Account; ____ Yes ____ No
3. As to each Mortgage Loan so noted on the attached schedule, all or part
of the Prepayment Premium required in connection with the Principal
Prepayment in full was waived based upon (Circle one): (i) the Servicer's
determination that such waiver would maximize recovery of Liquidation
Proceeds for such Mortgage Loan, taking into account the value of such
Prepayment Premium, or (ii)(A) the enforceability thereof be limited (1)
by bankruptcy insolvency, moratorium, receivership, or other similar law
relating to creditors' rights generally or (2) due to acceleration in
connection with a foreclosure or other involuntary payment, or (B) the
enforceability is otherwise limited or prohibited by applicable law;
4. We certify that all amounts due in connection with the waiver of a
Prepayment Premium inconsistent with number 3 above which are required to
be deposited by the Servicer pursuant to Section 3.01 of the Pooling and
Servicing Agreement, have been or will be so deposited.
By < Servicer >
(Name)
Its: (Title)
EXHIBIT K
TRUSTEE'S STATEMENT WITH RESPECT TO PREPAYMENTS
