EXECUTION COPY
=============================================================================
GREENWICH CAPITAL ACCEPTANCE, INC.,
Depositor
FIFTH THIRD MORTGAGE COMPANY,
Seller
FIFTH THIRD BANK,
Servicer
and
THE CHASE MANHATTAN BANK,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2000
----------------------------------
Fifth Third Bank Mortgage Loan Trust 2000-FTB1
Mortgage Pass-Through Certificates, Series 2000-FTB1
=============================================================================
<PAGE>
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.............................................3
SECTION 1.02. Accounting...............................................33
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.............................34
SECTION 2.02. Acceptance by Trustee....................................36
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by
the Seller...............................................38
SECTION 2.04. Representations and Warranties of the Seller with
Respect to the Mortgage Loans............................40
SECTION 2.05. Representations, Warranties and Covenants of the
Servicer.................................................41
SECTION 2.06. Representations and Warranties of the Depositor..........43
SECTION 2.07. Issuance of Certificates.................................44
SECTION 2.08. Representations and Warranties of the Seller.............44
SECTION 2.09. Covenants of the Seller..................................46
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer..............................47
SECTION 3.02. Sub-Servicing Agreements Between Servicer and
Sub-Servicers............................................48
SECTION 3.03. Successor Sub-Servicers..................................49
SECTION 3.04. Liability of the Servicer................................50
SECTION 3.05. No Contractual Relationship Between Sub-Servicers and
the Trustee or Certificateholders........................50
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements
by Trustee...............................................50
SECTION 3.07. Collection of Certain Mortgage Loan Payments.............51
SECTION 3.08. Sub-Servicing Account....................................51
SECTION 3.09. Collection of Taxes, Assessments and Similar Items;
Servicing Account........................................52
SECTION 3.10. Collection Account and Distribution Account..............53
SECTION 3.11. Withdrawals from the Collection Account and
Distribution Account.....................................55
SECTION 3.12. Investment of Funds in the Collection Account............56
SECTION 3.13. [Reserved]...............................................57
SECTION 3.14. Maintenance of Hazard Insurance Policies,
Primary Insurance Policies and Errors and Omissions
and Fidelity Coverage....................................57
SECTION 3.15. Enforcement of Due-on-Sale Clauses;
Assumption Agreements....................................60
SECTION 3.16. Realization upon Defaulted Mortgage Loans................61
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files..........63
SECTION 3.18. Servicing Compensation...................................64
SECTION 3.19. Reports to the Trustee; Collection Account Statements....64
SECTION 3.20. Statement as to Compliance...............................64
SECTION 3.21. Independent Public Accountant's Servicing Report.........65
SECTION 3.22. Access to Certain Documentation;
Filing of Reports by Trustee.............................65
SECTION 3.23. Title, Management and Disposition of REO Property........66
SECTION 3.24. Obligations of the Servicer in Respect of
Prepayment Interest Shortfalls...........................69
SECTION 3.25. [Reserved]...............................................69
SECTION 3.26. Obligations of the Servicer in Respect of Adjustments....69
SECTION 3.27. Solicitations............................................70
ARTICLE IV
FLOW OF FUNDS
SECTION 4.01. Distributions............................................70
SECTION 4.02. [Reserved]...............................................73
SECTION 4.03. Allocation of Realized Losses and Excess Losses..........73
SECTION 4.04. Statements...............................................74
SECTION 4.05. Remittance Reports; Advances.............................77
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.........................................78
SECTION 5.02. Registration of Transfer and Exchange of Certificates....79
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates........84
SECTION 5.04. Persons Deemed Owners....................................84
SECTION 5.05. Appointment of Paying Agent..............................84
ARTICLE VI
THE SELLER, THE SERVICER AND THE DEPOSITOR
SECTION 6.01. Liability of the Seller, the Servicer and the Depositor..85
SECTION 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Seller,
the Servicer or the Depositor............................85
SECTION 6.03. Limitation on Liability of the Servicer and Others.......85
SECTION 6.04. Servicer Not to Resign...................................86
SECTION 6.05. Delegation of Duties.....................................86
ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Events of Termination...........................87
SECTION 7.02. Trustee to Act; Appointment of Successor.................88
SECTION 7.03. Waiver of Servicer Events of Termination.................89
SECTION 7.04. Notification to Certificateholders.......................89
SECTION 7.05. Survivability of Servicer Liabilities....................90
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee........................................90
SECTION 8.02. Certain Matters Affecting the Trustee....................91
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans....92
SECTION 8.04. Trustee May Own Certificates.............................93
SECTION 8.05. Trustee's Fees and Expenses..............................93
SECTION 8.06. Eligibility Requirements for Trustee.....................94
SECTION 8.07. Resignation or Removal of Trustee........................94
SECTION 8.08. Successor Trustee........................................95
SECTION 8.09. Merger or Consolidation of Trustee.......................95
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee............96
SECTION 8.11. Limitation of Liability..................................97
SECTION 8.12. Trustee May Enforce Claims Without Possession
of Certificates..........................................97
SECTION 8.13. Suits for Enforcement....................................98
SECTION 8.14. Waiver of Bond Requirement...............................98
SECTION 8.15. Waiver of Inventory, Accounting and
Appraisal Requirement....................................98
SECTION 8.16. Appointment of Custodians................................98
SECTION 8.17. Put and Call.............................................98
ARTICLE IX
REMIC ADMINISTRATION
SECTION 9.01. REMIC Administration....................................100
SECTION 9.02. Prohibited Transactions and Activities..................102
SECTION 9.03. Indemnification with Respect to Certain Taxes
and Loss of REMIC Status................................103
SECTION 9.04. REO Property............................................103
ARTICLE X
TERMINATION
SECTION 10.01. Termination.............................................104
SECTION 10.02. Additional Termination Requirements.....................105
ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment...............................................106
SECTION 12.02. Recordation of Agreement; Counterparts..................107
SECTION 12.03. Limitation on Rights of Certificateholders..............108
SECTION 12.04. Governing Law; Jurisdiction.............................108
SECTION 12.05. Notices.................................................109
SECTION 12.06. Severability of Provisions..............................109
SECTION 12.07. Article and Section References..........................109
SECTION 12.08. Notice to the Rating Agencies...........................110
SECTION 12.09. Further Assurances......................................110
SECTION 12.10. Benefits of Agreement...................................111
SECTION 12.11. Acts of Certificateholders..............................111
EXHIBITS AND SCHEDULES:
----------------------
Exhibit A Form of Class A Certificates (other than the Class
A-R Certificate) .......................................A-1
Exhibit B Form of Class A-R Certificate...........................B-1
Exhibit C Form of Subordinate Certificates........................C-1
Exhibit D Form of Class X Certificates............................D-1
Exhibit E Form of Reverse of Certificates.........................E-1
Exhibit F Request for Release of Documents........................F-1
Exhibit G-1 Form of Trustee's Initial Certification...............G-1-1
Exhibit G-2 Form of Trustee's Final Certification.................G-2-1
Exhibit G-3 Form of Receipt of Mortgage Note......................G-3-1
Exhibit H Form of Lost Note Affidavit.............................H-1
Exhibit I Form of ERISA Representation............................I-1
Exhibit J Form of Investment Letter...............................J-1
Exhibit K Form of Transferor Certificate..........................K-1
Exhibit L Form of Class A-R Certificate Transfer Affidavit........L-1
Exhibit M Form of Liquidation Report..............................M-1
Exhibit N Put Option Notice.......................................N-1
Exhibit O Form of Put and Call Agreement..........................O-1
Schedule I Mortgage Loan Schedule
<PAGE>
This Pooling and Servicing Agreement is dated as of December 1, 2000
(the "Agreement"), among GREENWICH CAPITAL ACCEPTANCE, INC., as depositor (the
"Depositor"), FIFTH THIRD MORTGAGE CORPORATION, as seller (the "Seller"),
FIFTH THIRD BANK, as servicer (the "Servicer") and THE CHASE MANHATTAN BANK,
as trustee (the "Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund created hereunder. The Certificates will consist of
ten classes of certificates, designated as (i) the Class A-1 Certificates,
(ii) the Class A-2 Certificates, (iii) the Class X Certificates, (iv) the A-R
Certificate, (v) the Class B-1 Certificates, (vi) the Class B-2 Certificates,
(vii) the Class B-3 Certificates, (viii) the Class B-4 Certificates, (ix) the
Class B-5 Certificates and (x) the Class B-6 Certificates.
For federal income tax purposes, the Trust Fund (exclusive of the Put
Option, the Optional Call and the rights associated therewith) will consist of
two REMICs, the Lower Tier REMIC and the Upper Tier REMIC. The Lower Tier
REMIC will consist of all of the assets constituting the Trust Fund (exclusive
of the Put Option and the Optional Call) and will be evidenced by the Lower
Tier REMIC Regular Interests (which will be uncertificated and will represent
the "regular interests" in the Lower Tier REMIC) and the R-1 Interest as the
single "residual interest" in the Lower Tier REMIC. The Trustee will hold the
Lower Tier REMIC Regular Interests. On each Distribution Date, following the
allocation of Realized Losses and payments of principal, each Lower Tier REMIC
Interest will have a principal balance equal to that of its Master REMIC
Corresponding Class.
The Upper Tier REMIC will consist of the Lower Tier REMIC Regular
Interests and will be evidenced by the Regular Certificates (which will
represent the "regular interests" in the Upper Tier REMIC) and the R-2
Interest as the single "residual interest" in the Upper Tier REMIC. The Class
A-R Certificate will represent beneficial ownership of the R-1 Interest and
the R-2 Interest.
All REMIC regular and residual interests created hereby will be
retired on or before the Latest Possible Maturity Date. In addition to
evidencing a REMIC Regular Interest, each of the Certificates (other than the
Class X and Class A-R Certificates) will represent the related Put Option,
related Optional Call and the rights and obligations associated therewith.
The following table irrevocably sets forth the designation of the
Uncertificated Lower Tier REMIC Pass-Through Rate, the initial Uncertificated
Balance, the Master REMIC Corresponding Class and, solely for the purpose of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the Allocation of
Principal and the Allocation of Interest for each of the Lower Tier REMIC
Regular Interests. None of the Lower Tier REMIC Regular Interests will be
certificated.
<TABLE>
<CAPTION>
=============================================================================================================================
Initial Uncertificated Uncertificated Lower Tier Allocation of Allocation of Master REMIC
---------------------- -------------------------- -------------- -------------- ------------
Designation Principal Balance REMIC Pass-Through Rate Principal Interest Corresponding Class
----------- ----------------- ----------------------- --------- -------- -------------------
<S> <C> <C> <C> <C> <C>
Class L-A-1 $332,500,000 (1) A-1 A-1, X A-1
Class L-A-2 $221,000,000 (1) A-2 A-2, X A-2
Class L-B-1 $11,653,000 (1) B-1 B-1 B-1
Class L-B-2 $4,370,000 (1) B-2 B-2 B-2
Class L-B-3 $4,370,000 (1) B-3 B-3 B-3
Class L-B-4 $4,370,000 (1) B-4 B-4 B-4
Class L-B-5 $2,039,000 (1) B-5 B-5 B-5
Class L-B-6 $2,329,524 (1) B-6 B-6 B-6
Class L-A-R $100 (1) N/A N/A N/A
=============================================================================================================================
</TABLE>
(1) Calculated pursuant to the definition of "Net WAC".
<PAGE>
The following table sets forth (or describes) the Upper Tier REMIC
Class designation, Pass-Through Rate, Original Class Certificate Principal
Balance or Original Class Certificate Notional Balance, and Assumed Final
Distribution Date for each Class of Certificates comprising the interests in
the Upper Tier REMIC created hereunder, each of which, except for the Class
A-R Certificate, is hereby designated a REMIC regular interest for federal
income tax purposes:
<TABLE>
<CAPTION>
==================================================================================================================
Original Class
Certificate Principal Pass-Through Assumed Final
Class Balance or Notional Balance Rate Distribution Date
----- ------------------------------ --------------------------------- ----------------------------
<S> <C> <C> <C>
Class A-1 $332,500,000 (1) October 18, 2030
Class A-2 $221,000,000 (1) October 18, 2030
Class X (2) (2) October 18, 2030
Class A-R $100 (1) October 18, 2030
Class B-1 $11,653,000 (1) October 18, 2030
Class B-2 $4,370,000 (1) October 18, 2030
Class B-3 $4,370,000 (1) October 18, 2030
Class B-4 $4,370,000 (1) October 18, 2030
Class B-5 $2,039,000 (1) October 18, 2030
Class B-6 $2,329,524 (1) October 18, 2030
==================================================================================================================
</TABLE>
(1) Calculated pursuant to the definition of "Pass-Through Rate".
(2) The Class X Certificates will have no principal balance and will
bear interest calculated pursuant to the definition of "Class X
Certificate Pass-Through Rate" on the Class Certificate Notional
Balance thereof. Each Class X Certificate will bear interest at the
Class X Certificate Pass-Through Rate on its Certificate Notional
Balance.
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement or in the Preliminary Statement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article. All calculations of interest described
herein shall be made on the basis of an assumed 360-day year consisting of
twelve 30-day months.
"1933 Act": The Securities Act of 1933, as amended.
"Account": Either the Collection Account or the Distribution Account.
"Accrual Period": With respect to each Distribution Date and any
Class of Certificates, the calendar month prior to the month of that
Distribution Date, calculated on the basis of an assumed 360-day year
consisting of twelve 30-day months.
"Adjustment Date": With respect to each Mortgage Loan, each
adjustment date on which the related Loan Rate changes pursuant to the related
Mortgage Note. The first Adjustment Date following the Cut-Off Date as to each
Mortgage Loan is set forth in the Mortgage Loan Schedule.
"Advance": As to any Mortgage Loan or REO Property, any advance made
by the Servicer in respect of any Distribution Date pursuant to Section 4.05
hereof.
"Adverse REMIC Event": As defined in Section 9.01(f) hereof.
"Affiliate": With respect to any Person, any other Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" means the power to direct the
management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise and "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, as amended,
supplemented and otherwise modified from time to time.
"Aggregate Senior Percentage": As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Certificate Principal Balances of the Classes of Senior Certificates
and the denominator of which is the Aggregate Stated Principal Balance for
such Distribution Date, but in no event greater than 100%.
"Aggregate Stated Principal Balance": As to any Distribution Date,
the aggregate of the Stated Principal Balances of the Mortgage Loans
outstanding on the Due Date in the month preceding the month of such
Distribution Date.
"Aggregate Subordinate Percentage": As to any Distribution Date, the
difference between 100% and the Aggregate Senior Percentage for such
Distribution Date, but in no event less than zero.
"Applicable Credit Percentage": As defined in Section 4.01(e).
"Applicable Regulations": As to any Mortgage Loan, all federal, state
and local laws, statutes, rules and regulations applicable thereto.
"Assignment": As to any Mortgage, an assignment of mortgage, notice
of transfer or equivalent instrument, in recordable form, which is sufficient
under the laws of the jurisdiction in which the related Mortgaged Property is
located to reflect or record the sale of such Mortgage.
"Assumed Final Distribution Date": As to each Class of Certificates,
the date set forth as such in the Preliminary Statement.
"Available Funds": As to any Distribution Date, an amount equal to
(i) the sum of (a) the aggregate of the Monthly Payments received on or prior
to the related Determination Date (excluding Monthly Payments due in future
Due Periods but received by the related Determination Date), (b) Liquidation
Proceeds, Insurance Proceeds, Principal Prepayments and other unscheduled
recoveries of principal and interest in respect of the Mortgage Loans during
the related Prepayment Period, (c) the aggregate of any amounts received in
respect of a related REO Property withdrawn from any REO Account and deposited
in the Collection Account for such Distribution Date, (d) the amount of
Compensating Interest deposited in the Collection Account by the Servicer for
that Distribution Date, (e) the aggregate of the Purchase Prices and
Substitution Adjustments deposited in the Collection Account during the
related Prepayment Period, (f) the aggregate of any Advances made by the
Servicer for that Distribution Date, (g) the aggregate of any Advances made by
the Trustee, solely as successor Servicer, for that Distribution Date pursuant
to Section 7.02 hereof and (h) the Termination Price on the Distribution Date
on which the Trust is terminated; minus (ii) the sum of (x) amounts
reimbursable or payable to the Servicer pursuant to Section 3.11(a) hereof,
(y) the amount payable to the Trustee pursuant to Section 8.05 and (z) amounts
deposited in the Collection Account or the Distribution Account, as the case
may be, in error.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"Bankruptcy Coverage Termination Date": The date on which the
Bankruptcy Loss Coverage Amount is reduced to zero.
"Bankruptcy Loss": With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that a Bankruptcy Loss
shall not be deemed a Bankruptcy Loss hereunder so long as the Servicer has
notified the Trustee in writing that the Servicer is pursuing any remedies
that may exist in connection with the related Mortgage Loan and either (A) the
related Mortgage Loan is not in default with regard to payments due thereunder
or (B) delinquent payments of principal and interest under the related
Mortgage Loan and any related escrow payments in respect of the Mortgage Loan
are being advanced on a current basis by the Servicer, in either case without
giving effect to any Debt Service Reduction or Deficient Valuation.
"Bankruptcy Loss Coverage Amount": As of any Determination Date, the
Initial Bankruptcy Coverage Amount as reduced by the aggregate amount of
Bankruptcy Losses allocated to the Certificates since the Cut-Off Date;
provided, however, that the Bankruptcy Loss Coverage Amount may also be
reduced pursuant to a letter from each Rating Agency to the Trustee to the
effect that any such reduction will not result in a downgrading of the then
current ratings assigned by such Rating Agency to the Classes of Senior
Certificates.
"Book-Entry Certificates": Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of
which is reflected on the books of the Depository or on the books of a Person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.02 hereof). On the
Closing Date, all Classes of the Certificates other than the Physical
Certificates shall be Book-Entry Certificates.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking or savings institutions in the State of Ohio, the State of New
York or in the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law or executive order to be closed.
"Certificate": Any Regular Certificate or Class A-R Certificate.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or non-U.S. Person shall not be a Holder of the
Class A-R Certificate for any purpose hereof.
"Certificate Principal Balance": As to any Distribution Date, with
respect to each Certificate of a given Class (other than the Class X
Certificates), the Class Certificate Principal Balance of such Class
multiplied by the applicable Percentage Interest of such Certificate.
"Certificate Notional Balance": As to any Distribution Date, with
respect to each Class X Certificate, the Class Certificate Notional Balance
multiplied by the applicable Percentage Interest of such Class X Certificate.
"Certificate Owner": With respect to each Book-Entry Certificate, any
beneficial owner thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02 hereof.
"Class": Collectively, Certificates that have the same priority of
payment and bear the same class designation and the form of which is identical
except for variation in the Percentage Interest evidenced thereby.
"Class A-1 Certificate": Any of the Class A-1 Certificates as
designated on the face thereof executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit A, evidencing the ownership of "regular interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"Class A-1 Certificate Pass-Through Rate": With respect to the Class
A-1 Certificates and (i) any Distribution Date up to and including the
Distribution Date in September 2002, the lesser of 6.75% and the Net WAC and
(ii) any Distribution Date after the Distribution Date in September 2002, the
Net WAC.
"Class A-2 Certificate": Any of the Class A-2 Certificates as
designated on the face thereof executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit A, evidencing the ownership of "regular interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"Class A-2 Certificate Pass-Through Rate": With respect to the Class
A-2 Certificates and (i) any Distribution Date up to and including the
Distribution Date in September 2002, the lesser of 6.50% and the Net WAC and
(ii) any Distribution Date after the Distribution Date in September 2002, the
Net WAC.
"Class A-R Certificate": The Class A-R Certificate as designated on
the face thereof executed by the Trustee, and authenticated and delivered by
the Certificate Registrar, substantially in the form annexed hereto as Exhibit
B, evidencing the ownership of the sole class of "residual interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"Class A-R Certificate Pass-Through Rate": With respect to the Class
A-R Certificate and any Distribution Date, the Net WAC for such Distribution
Date.
"Class B-1 Certificate": Any of the Class B-1 Certificates as
designated on the face thereof executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit C, evidencing the ownership of "regular interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"Class B-2 Certificate": Any of the Class B-2 Certificates as
designated on the face thereof executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit C, evidencing the ownership of "regular interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"Class B-3 Certificate": Any of the Class B-3 Certificates as
designated on the face thereof executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit C, evidencing the ownership of "regular interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"Class B-4 Certificate": Any of the Class B-4 Certificates as
designated on the face thereof executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit C, evidencing the ownership of "regular interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"Class B-5 Certificate": Any of the Class B-5 Certificates as
designated on the face thereof executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit C, evidencing the ownership of "regular interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"Class B-6 Certificate": Any of the Class B-6 Certificates as
designated on the face thereof executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit C, evidencing the ownership of "regular interests" in the
Upper Tier REMIC and representing the right to distributions as set forth
herein and therein.
"Class Certificate Notional Balance": As to any Distribution Date,
with respect to the Class X Certificates, an amount equal to the sum of the
Class Certificate Principal Balances of the Class A-1 and Class A-2
Certificates with respect to such Distribution Date.
"Class Certificate Principal Balance": As to any Distribution Date,
with respect to any Class of Certificates other than the Class X Certificates,
the Original Class Certificate Principal Balance as reduced by the sum of (x)
all amounts actually distributed in respect of principal of that Class on all
prior Distribution Dates and (y) all Realized Losses, Bankruptcy Losses,
Special Hazard Losses, Fraud Losses and Excess Losses, if any, actually
allocated to that Class on all prior Distribution Dates.
"Class Subordination Percentage": With respect to each Class of
Subordinate Certificates and any Distribution Date, the percentage equivalent
of a fraction the numerator of which is the Class Certificate Principal
Balance of such Class immediately before such Distribution Date and the
denominator of which is the aggregate of the Class Certificate Principal
Balances of all Classes of Certificates immediately before such Distribution
Date.
"Class X Certificate": Any of the Class X Certificates as designated
on the face thereof executed by the Trustee and authenticated and delivered by
the Certificate Registrar, substantially in the form annexed hereto as Exhibit
D, evidencing the ownership of "regular interests" in the Upper Tier REMIC and
representing the right to distributions as set forth herein and therein.
"Class X Certificate Pass-Through Rate": With respect to the Class X
Certificates and any Distribution Date, the Net WAC for such Distribution Date
minus the weighted average of the Pass-Through Rates of Class A-1 and Class
A-2 Certificates, weighted on the basis of their respective Class Certificate
Principal Balances. Solely for Federal income tax purposes, however, the
"Class X Certificate Pass-Through Rate" shall be equal to the Net WAC for such
Distribution Date minus the weighted average of the Pass-Through Rates of
Class L-A-1 and Class L-A-2 Interests (with each such Pass-Through Rate
subject to a cap equal to the Pass-Through Rate in respect of its Master REMIC
Corresponding Class (as set forth in the Preliminary Statement)), weighted on
the basis of their respective uncertificated principal balances.
"Close of Business": As used herein, with respect to any Business Day
and location, 5:00 p.m. at such location.
"Closing Date": December 21, 2000.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The account or accounts created and maintained
by the Servicer pursuant to Section 3.10(a), which shall be entitled "Fifth
Third Bank, as Servicer for The Chase Manhattan Bank, as Trustee, in trust for
registered Holders of Fifth Third Bank Mortgage Loan Trust 2000-FTB1, Mortgage
Pass-Through Certificates, Series 2000-FTB1", and which must be an Eligible
Account.
"Commission": The Securities and Exchange Commission.
"Compensating Interest": As defined in Section 3.24 hereof.
"Compensating Interest Cap": For any Due Period, the aggregate of,
with respect to each Mortgage Loan, an amount equal to one month's interest
(or in the event of any payment of interest which accompanies a Principal
Prepayment made by the Mortgagor during such calendar month, interest for the
number of days covered by such payment of interest) at the rate of 0.25% per
annum on the Principal Balance of such Mortgage Loan (or, if applicable, the
REO Property related to such Mortgage Loan) as of the first day of such
calendar month.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at 450 West 33rd Street, New
York, New York 10001-2697, Attention: Capital Markets Fiduciary Services -
Fifth Third Bank Mortgage Loan Trust 2000-FTB1 or at such other address as the
Trustee may designate from time to time by notice to the Certificateholders,
the Depositor, the Servicer and the Seller.
"Cut-Off Date": With respect to any Mortgage Loan other than a
Qualified Substitute Mortgage Loan, the Close of Business in New York City on
December 1, 2000. With respect to any Qualified Substitute Mortgage Loan, the
date designated as such on the Mortgage Loan Schedule (as amended).
"Cut-Off Date Aggregate Principal Balance": The aggregate of the
Cut-Off Date Principal Balances of the Mortgage Loans.
"Cut-Off Date Principal Balance": With respect to any Mortgage Loan,
the unpaid principal balance thereof as of the Cut-Off Date (or as of the
applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan).
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for that Mortgage Loan by a court
of competent jurisdiction in a proceeding under the Bankruptcy Code, unless
the reduction results from a Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding Principal Balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(c) hereof.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced
by one or more Qualified Substitute Mortgage Loans.
"Delinquent": Any Mortgage Loan with respect to which the Monthly
Payment due on a Due Date is not made by the Close of Business on the next
scheduled Due Date for such Mortgage Loan.
"Delivery Date": As defined in Section 2.01 hereof.
"Depositor": Greenwich Capital Acceptance, Inc., a Delaware
corporation, or any successor in interest.
"Depository": The initial Depository shall be The Depository Trust
Company, whose nominee is Cede & Co., or any other organization registered as
a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository shall initially be the registered Holder of
the Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
"Depository Participant": A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
fifth Business Day prior to such Distribution Date.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation
of such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by a REMIC other than through an
Independent Contractor; provided, however, that the Trustee (or the 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": A "disqualified organization" under
Section 860E of the Code, which as of the Closing Date is any of:
(i) the United States, any state or political subdivision
thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing,
(ii) any organization (other than a cooperative described in
Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax
imposed by Section 511 of the Code,
(iii) any organization described in Section 1381(a)(2)(C) of
the Code,
(iv) an "electing large partnership" within the meaning of
Section 775 of the Code or
(v) any other Person so designated by the Trustee based upon an
Opinion of Counsel provided to the Trustee by nationally recognized
counsel acceptable to the Trustee that the holding of an ownership
interest in the Class A-R Certificate by such Person may cause the
Trust Fund or any Person having an ownership interest in any Class
of Certificates (other than such Person) to incur liability for any
federal tax imposed under the Code that would not otherwise be
imposed but for the transfer of an ownership interest in the Class
A-R Certificate to such Person.
A corporation will not be treated as an instrumentality of the United
States or of any state or political subdivision thereof, if all of its
activities are subject to tax and, a majority of its board of directors is not
selected by a governmental unit. The term "United States", "state" and
"international organizations" shall have the meanings set forth in Section
7701 of the Code.
"Distribution Account": The trust account or accounts created and
maintained by the Trustee pursuant to Section 3.10(b) hereof which shall be
entitled "Distribution Account, The Chase Manhattan Bank, as Trustee, in trust
for the registered Certificateholders of Fifth Third Bank Mortgage Loan Trust
2000-FTB1, Mortgage Pass-Through Certificates, Series 2000-FTB1" and which
must be an Eligible Account.
"Distribution Date": The 18th day of each calendar month or, if the
18th day is not a Business Day, the Business Day immediately following such
18th day, commencing in January 2001.
"Distribution Date Statement": As defined in Section 4.04(a) hereof.
"Due Date": With respect to each Mortgage Loan and any Distribution
Date, the first day of the calendar month in which that Distribution Date
occurs on which the Monthly Payment for such Mortgage Loan was due, exclusive
of any days of grace.
"Due Period": With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month in which that
Distribution Date occurs and ending on the first day of the month in which
that Distribution Date occurs.
"Eligible Account": Any of
(i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term
unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a
holding company, the short-term unsecured debt obligations of such
holding company) are rated A-1 or its equivalent by each of S&P and
Moody's, at the time any amounts are held on deposit therein;
(ii) an account or accounts the deposits in which are fully
insured by the FDIC (to the limits established by it), the uninsured
deposits in which account are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to
the Rating Agencies, the Certificateholders will have a claim with
respect to the funds in the account or a perfected first priority
security interest against the collateral (which shall be limited to
Permitted Investments) securing those funds that is superior to
claims of any other depositors or creditors of the depository
institution with which such account is maintained;
(iii) a trust account or accounts maintained with the trust
department of a federal or state chartered depository institution,
national banking association or trust company acting in its
fiduciary capacity; or
(iv) an account otherwise acceptable to the Rating Agencies
without reduction or withdrawal of its then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the
Trustee. Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA-Qualifying Underwriting": A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
"ERISA-Restricted Certificates": The Private Certificates and the
Class A-R Certificate.
"Escrow Payments": With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, fire and hazard
insurance premiums and other payments required to be escrowed by the related
Mortgagor with the related mortgagee pursuant to such Mortgage Loan.
"Estate in Real Property": A fee simple estate in a parcel of real
property.
"Excess Loss": With respect to the Mortgage Loans, the amount of any
(i) Fraud Loss realized after the Fraud Loss Coverage Termination Date, (ii)
Special Hazard Loss realized after the Special Hazard Coverage Termination
Date or (iii) Bankruptcy Loss realized after the Bankruptcy Coverage
Termination Date.
"Expense Fee Rate": With respect to any Mortgage Loan, the per annum
rate at which the Expense Fee accrues for such Mortgage Loan.
"Expense Fee": With respect to any Mortgage Loan, the sum of (x) the
Servicing Fee for such Mortgage Loan and (y) the Trustee Fee for such Mortgage
Loan.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"Fannie Mae": The Federal National Mortgage Association or any
successor thereto.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Seller or by the Servicer pursuant to or as contemplated by
Section 2.03 or 10.01 hereof), a determination made by the Servicer (and with
respect to which written confirmation by a Servicing Officer of the Servicer
shall have been received by the Trustee) 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 by the Servicer.
"Five-Year CMT": The weekly average yield on United States Treasury
securities adjusted to a constant maturity of five years as published by the
Federal Reserve Board in Statistical Release H.15(519).
"Foreclosure Price": With respect to any Mortgaged Property, the
amount reasonably expected to be received from the sale of such Mortgaged
Property net of any expenses associated with foreclosure proceedings.
"Fraud Loan": A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
"Fraud Losses": Realized Losses on any Mortgage Loans sustained by
reason of a default arising from fraud, dishonesty or misrepresentation in
connection with that Mortgage Loan, including a loss by reason of the denial
of coverage under any related Primary Insurance Policy because of such fraud,
dishonesty or misrepresentation.
"Fraud Loss Coverage Amount": As of the Closing Date, $11,652,632,
subject to reduction from time to time by the amount of Fraud Losses allocated
to the Certificates. In addition, on each anniversary of the Cut-Off Date, the
Fraud Loss Coverage Amount will be reduced as follows: (a) on the first and
second anniversaries of the Cut-Off Date, to an amount equal to the lesser of
(i) 2.00% of the then current Pool Balance and (ii) the excess of the Fraud
Loss Coverage Amount as of the preceding anniversary of the Cut-Off Date (or,
in the case of the first anniversary, as of the Cut-Off Date) over the
cumulative amount of Fraud Losses allocated to the Certificates since such
preceding anniversary or the Cut-Off Date, as the case may be; (b) on the
third, fourth and fifth anniversaries of the Cut-Off Date, to an amount equal
to the lesser of (i) 1.00% of the then current Pool Balance and (ii) the
excess of the Fraud Loss Coverage Amount as of the preceding anniversary of
the Cut-Off Date (or, in the case of the first anniversary, as of the Cut-Off
Date) over the cumulative amount of Fraud Losses allocated to the Certificates
since such preceding anniversary or the Cut-Off Date, as the case may be; and
(c) on the sixth anniversary of the Cut-Off Date, to zero; provided, however,
that the Fraud Loss Coverage Amount may also be reduced pursuant to a letter
from each Rating Agency to the Trustee to the effect that any such reduction
will not result in the downgrading of the then current ratings assigned by
such Rating Agency to the Classes of Senior Certificates.
"Fraud Loss Coverage Termination Date": The date on which the Fraud
Loss Coverage Amount is reduced to zero.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gross Margin": With respect to each 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 Loan 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 or the
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or 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 or 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 or 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
within the meaning of Section 856(d)(3) of the Code if the REMIC were a real
estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as the REMIC
does not receive or derive any income from such Person and provided that the
relationship between such Person and the REMIC is at arm's length, all within
the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other
Person (including the Servicer) if the Trustee has received an Opinion of
Counsel to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will
not cause such REO Property to cease to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without
regard to the exception applicable for purposes of Section 860D(a) of the
Code), or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property.
"Index": With respect to each Mortgage Loan and each Adjustment Date,
any of One-Year CMT, Three-Year CMT or Five-Year CMT, as set forth in the
related Mortgage Note.
"Initial Bankruptcy Coverage Amount": $450,000.
"Initial Certificate Notional Balance": With respect to any Class X
Certificate, the amount designated "Initial Certificate Notional Balance" on
the face thereof.
"Initial Certificate Principal Balance": With respect to any
Certificate other than a Class X Certificate, the amount designated "Initial
Certificate Principal Balance" on the face thereof.
"Insurance Proceeds": With respect to any Mortgage Loan, proceeds of
any title policy, hazard policy or other insurance policy covering such
Mortgage Loan, to the extent such proceeds are not to be applied to the
restoration of the related Mortgaged Property or released to the related
Mortgagor in accordance with the procedures that the Servicer would follow in
servicing mortgage loans held for its own account, subject to the terms and
conditions of the related Mortgage Note and Mortgage.
"Interest Distributable Amount": With respect to any Distribution
Date and each Class of Certificates, the sum of (i) the Monthly Interest
Distributable Amount for that Class and (ii) the Unpaid Interest Shortfall
Amount for that Class.
"Late Collections": With respect to any Mortgage Loan and any
Distribution Date, all amounts received subsequent to the related
Determination Date immediately following any related Due Period, whether as
late payments of Monthly Payments or as Insurance Proceeds, Liquidation
Proceeds or otherwise, which represent late payments or collections of
principal and/or interest due (without regard to any acceleration of payments
under the related Mortgage and Mortgage Note) but delinquent on a contractual
basis for such Due Period and not previously recovered.
"Latest Possible Maturity Date": As determined as of the Cut-Off
Date, the Distribution Date following the fourth anniversary of the scheduled
maturity date of the Mortgage Loan having the latest scheduled maturity date
as of the Cut-Off Date.
"Liquidated Mortgage Loan": As to any Distribution Date, any Mortgage
Loan in respect of which the Servicer has determined, in accordance with the
servicing procedures specified herein, as of the end of the related Prepayment
Period, that all Liquidation Proceeds that it expects to recover with respect
to the liquidation of such Mortgage Loan or disposition of the related REO
Property have been recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such
Mortgage Loan is removed from the Trust Fund by reason of its being purchased,
sold or replaced pursuant to or as contemplated by Section 2.03 or Section
10.01. With respect to any REO Property, either of the following events: (i) a
Final Recovery Determination is made as to such REO Property; or (ii) such REO
Property is removed from the Trust Fund by reason of its being sold or
purchased pursuant to Section 3.23 or Section 10.01 hereof.
"Liquidation Proceeds": The amount (other than amounts received in
respect of the rental of any REO Property prior to REO Disposition) received
by the 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 3.23 or Section 10.01 hereof.
"Liquidation Report": A report to be provided by the Servicer upon
request by the Trustee substantially in the form attached hereto in Exhibit M.
"Loan 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 for such Mortgage Loan
following the Cut-Off Date shall be the rate set forth in the Mortgage Loan
Schedule as the Loan 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 plus the related Gross
Margin subject to the limitations set forth in the related Mortgage Note. With
respect to each Mortgage Loan that becomes an REO Property, as of any date of
determination, the annual rate determined in accordance with the immediately
preceding sentence as of the date such Mortgage Loan became an REO Property.
"Loan-to-Value Ratio": With respect to each Mortgage Loan and any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the Principal Balance of the Mortgage Loan at such date of
determination and the denominator of which is the Value of the related
Mortgaged Property.
"Losses": As defined in Section 9.03 hereof.
"Lost Note Affidavit": With respect to any Mortgage Loan as to which
the original Mortgage Note has been permanently lost or destroyed and has not
been replaced, an affidavit from the Seller certifying that the original
Mortgage Note has been lost, misplaced or destroyed (together with a copy of
the related Mortgage Note and indemnifying the Trust against any loss, cost or
liability resulting from the failure to deliver the original Mortgage Note) in
the form of Exhibit H hereto.
"Lower Tier REMIC": As defined in the Preliminary Statement.
"Lower Tier REMIC Regular Interest": As defined in the Preliminary
Statement.
"Majority Certificateholders": The Holders of Certificates evidencing
at least 51% of the Voting Rights.
"Maximum Loan Rate": With respect to any Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Loan Rate
thereunder.
"Minimum Loan Rate": With respect to any Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Loan Rate
thereunder.
"Monthly Interest Distributable Amount": With respect to each Class
of Certificates and any Distribution Date, the amount of interest accrued
during the related Accrual Period at the related Pass-Through Rate on the
Class Certificate Principal Balance or Class Certificate Notional Balance, as
applicable, of that Class immediately prior to that Distribution Date.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and interest on such Mortgage Loan that is
payable by the related Mortgagor from time to time under the related Mortgage
Note, determined: (a) after giving effect to (i) any Deficient Valuation
and/or Debt Service Reduction with respect to such Mortgage Loan and (ii) any
reduction in the amount of interest collectible from the related Mortgagor
pursuant to the Relief Act; (b) without giving effect to any extension granted
or agreed to by the Servicer pursuant to Section 3.01 hereof; and (c) on the
assumption that all other amounts, if any, due under such Mortgage Loan are
paid when due.
"Moody's": Moody's Investor Service Inc. and its successors.
"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 hereof
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03(d) hereof as from time to
time held as a part of the Trust Fund, the Mortgage Loans so held being
identified in the Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The Agreement between the Seller
and the Depositor, dated as of December 1, 2000, regarding the transfer of the
Mortgage Loans by the Seller to or at the direction of the Depositor.
"Mortgage Loan Schedule": As of any date, the list of Mortgage Loans
included in the Trust Fund on such date, attached hereto as Schedule I. The
Mortgage Loan Schedule shall be prepared by the Seller and shall set forth the
following information with respect to each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property
including the state and five-digit ZIP code;
(iv) a code indicating whether the Mortgaged Property was
represented by the borrower, at the time of
origination, as being owner-occupied;
(v) a code indicating whether the Residential Dwelling
constituting the Mortgaged Property is (a) a detached
single family dwelling, (b) a dwelling in a planned
unit development, (c) a condominium unit, (d) a two-
to four-unit residential property, (e) a townhouse or
(f) other type of Residential Dwelling;
(vi) the original months to maturity;
(vii) the stated remaining months to maturity from the
Cut-Off Date based on the original amortization
schedule;
(viii) the Loan-to-Value Ratio at origination;
(ix) the Loan Rate in effect immediately following the
Cut-Off Date;
(x) the date on which the first Monthly Payment is or was
due on the Mortgage Loan;
(xi) the stated maturity date;
(xii) the amount of the Monthly Payment due on the first
Due Date after the Cut-Off Date;
(xiii) the last Due Date on which a Monthly Payment was
actually applied to the unpaid Stated Principal
Balance;
(xiv) the original principal amount of the Mortgage Loan;
(xv) the Stated Principal Balance of the Mortgage Loan as
of the Close of Business on the Cut-Off Date and a
code indicating the purpose of the Mortgage Loan
(i.e., purchase financing, rate/term refinancing,
cash-out refinancing);
(xvi) the Index and Gross Margin specified in the related
Mortgage Note;
(xvii) the next Adjustment Date;
(xviii) the Maximum Loan Rate;
(xix) the Minimum Loan Rate;
(xx) the Value of the Mortgaged Property, if applicable;
(xxi) the sale price of the Mortgaged Property, if
applicable; and
(xxii) the program code.
The Mortgage Loan Schedule, as in effect from time to time, shall
also set forth the following information with respect to the Mortgage Loans in
the aggregate as of the Cut-Off Date: (1) the number of Mortgage Loans; (2)
the current Principal Balance of the Mortgage Loans; (3) the weighted average
Loan Rate of the Mortgage Loans; and (4) the weighted average maturity of the
Mortgage Loans. The Mortgage Loan Schedule shall be amended from time to time
by the Seller in accordance with the provisions of this Agreement.
"Mortgage Note": The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"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 Liquidation Proceeds": With respect to any Liquidated Mortgage
Loan or any other disposition of related Mortgaged Property (including REO
Property), the related Liquidation Proceeds net of Advances, related Servicing
Advances, related Servicing Fees and any other accrued and unpaid servicing
fees received and retained in connection with the liquidation of such Mortgage
Loan or Mortgaged Property.
"Net Loan Rate": With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the then applicable Loan Rate for such Mortgage Loan minus the
Servicing Fee Rate.
"Net Prepayment Interest Shortfalls": As to any Distribution Date,
the amount by which the aggregate of the Prepayment Interest Shortfalls during
the related Prepayment Period exceeds an amount equal to the Compensating
Interest Cap for such Distribution Date.
"Net WAC": With respect to any Distribution Date, the weighted
average of the difference between (x) the Loan Rates of the Mortgage Loans as
of the first day of the month preceding the month of that Distribution Date
(or, in the case of the first Distribution Date, the Cut-Off Date), and (y)
the related Expense Fee Rates, weighted on the basis of the Principal Balances
as of the first day of the month preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date, as
of the Cut-Off Date).
"New Lease": Any lease of REO Property entered into on behalf of the
Trust, including any lease renewed or extended on behalf of the Trust if the
Trust has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Advance or Servicing Advance previously
made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the Servicer, will not ultimately be recoverable from
Late Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage
Loan or REO Property as provided herein.
"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), or by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of the Servicer, the Seller or
the Depositor, as applicable.
"One-Year CMT": The weekly average yield on United States Treasury
securities adjusted to a constant maturity of one year as published by the
Federal Reserve Board in Statistical Release H.15(519).
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be a 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 Upper Tier REMIC or Lower Tier REMIC as a REMIC or
(b) compliance with the REMIC Provisions, must be an opinion of Independent
counsel.
"Option Period": The five business day period ending at the Close of
Business in New York City on the Distribution Date in August 2002.
"Optional Call": With respect to each Class A-1 and Class A-2
Certificate, the right granted by the Holder of such Certificate, by its
acceptance thereof, to the Standby Purchaser under the Put and Call Agreement,
upon the exercise by Holders of more than 90% of the aggregate outstanding
Certificate Principal Balance of the Class A-1 and Class A-2 Certificates of
the related Put Options, to require each Holder of a related Optional Call
Interest, to sell all, but not less than all, of such Optional Call Interest
to the Standby Purchaser on the Put and Call Date. With respect to each
Subordinate Certificate, the right granted by the Holder of such Certificate,
by its acceptance thereof, to the Standby Purchaser under the Put and Call
Agreement, upon the exercise by Holders of more than 90% of the aggregate
outstanding Certificate Principal Balance of the Subordinate Certificates of
the related Put Options, to require each Holder of a related Optional Call
Interest, to sell all, but not less than all, of such Optional Call Interest
to the Standby Purchaser on the Put and Call Date.
"Optional Call Interest": With respect to the Class A-1 and Class A-2
Certificates, each Class A-1 and Class A-2 Certificate in respect of which a
Holder has not exercised the related Put Option. With respect to the
Subordinate Certificates, each Subordinate Certificate in respect of which a
Holder has not exercised the related Put Option.
"Optional Termination Date": The first Distribution Date on which the
Servicer may opt to terminate this Agreement pursuant to Section 10.01 hereof.
"Original Applicable Credit Percentage": With respect to each Class
of Subordinate Certificates, the corresponding percentage set forth below
opposite its Class designation:
Class B-1 5.00%
Class B-2 3.00%
Class B-3 2.25%
Class B-4 1.50%
Class B-5 0.75%
Class B-6 0.40%
"Original Class Certificate Principal Balance": With respect to each
Class of Certificates other than the Class X Certificates, the corresponding
aggregate amount set forth opposite the Class designation of such Class in the
Preliminary Statement.
"Original Class Certificate Notional Balance" With respect to the
Class X Certificates, $553,500,000.
"Original Subordinated Principal Balance": The aggregate of the
Original Class Certificate Principal Balances of the Classes of Subordinate
Certificates.
"Outstanding Mortgage Loan": As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero, that was not the subject of a
Prepayment in Full prior to such Due Date and that did not become a Liquidated
Mortgage Loan prior to such Due Date.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
"Pass-Through Rate": With respect to each Class of Certificates and
any Distribution Date, the Class A-1 Certificate Pass-Through Rate, the Class
A-2 Certificate Pass-Through Rate, the Class A-R Certificate Pass-Through
Rate, the Subordinate Certificate Pass-Through Rate or the Class X Certificate
Pass-Through Rate, as applicable.
"Paying Agent": Any paying agent appointed pursuant to Section 5.05
hereof.
"Percentage Interest": With respect to any Certificate other than the
Class A-R Certificate, a fraction, expressed as a percentage, the numerator of
which is the Initial Certificate Principal Balance or Initial Certificate
Notional Balance, as applicable, represented by such Certificate and the
denominator of which is the Original Class Certificate Principal Balance or
Original Class Certificate Notional Balance, as applicable, of the related
Class. With respect to the Class A-R Certificate, 100%.
"Permitted Investments": Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued or managed by the Depositor, the Servicer, the Seller, the
Trustee or any of their respective Affiliates or for which an Affiliate of the
Trustee serves as an advisor:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) (A) demand and time deposits in, certificates of deposit
of, bankers' acceptances issued by or federal funds sold by any
depository institution or trust company (including the Trustee or
its agent acting in their respective commercial capacities)
incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
and/or state authorities, so long as, at the time of such investment
or contractual commitment providing for such investment, such
depository institution or trust company or its ultimate parent has a
short-term uninsured debt rating in one of the two highest available
rating categories of each Rating Agency and provided that each such
investment has an original maturity of no more than 365 days and (B)
any other demand or time deposit or deposit which is fully insured
by the FDIC;
(iii) repurchase obligations with a term not to exceed 30 days
with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting
as principal) rated A or higher by S&P, and its equivalent by
Moody's; provided, however, that collateral transferred pursuant to
such repurchase obligation must be of the type described in clause
(i) above and must (A) be valued daily at current market prices plus
accrued interest or (B) pursuant to such valuation, be equal, at all
times, to 105% of the cash transferred by the Trustee in exchange
for such collateral and (C), be delivered to the Trustee or, if the
Trustee is supplying the collateral, an agent for the Trustee, in
such a manner as to accomplish perfection of a security interest in
the collateral by possession of certificated securities;
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United
States of America or any State thereof and that are rated by the
Rating Agencies in its highest long-term unsecured rating categories
at the time of such investment or contractual commitment providing
for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date
of acquisition thereof) that is rated by the Rating Agencies in its
highest short-term unsecured debt rating available at the time of
such investment;
(vi) units of money market funds registered under the
Investment Company Act of 1940 including funds managed or advised by
the Trustee or an affiliate thereof having the highest applicable
rating from S&P and Moody's; and
(vii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to the Rating Agencies
in writing as a permitted investment of funds backing securities
having ratings equivalent to its highest initial ratings of the
Senior Certificates;
provided, however, that no instrument described hereunder shall evidence
either the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying
obligations.
"Permitted Transferee": Any Transferee of the Class A-R Certificate
other than a Disqualified Organization or a non-U.S. Person, except for a
non-U.S. Person whose income in respect of such Certificate would be
effectively connected income within the meaning of Treasury regulation ss.
1.860G-3(a)(4).
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Physical Certificates": The Private Certificates and the Class A-R
Certificate.
"Pool Balance": As to any Distribution Date, the aggregate of the
Principal Balances, as of the Due Date in the month preceding the month in
which such Distribution Date occurs, of the Mortgage Loans that were
Outstanding Mortgage Loans on that Due Date.
"Prepayment Assumption": As defined in the Prospectus Supplement.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was the subject of a Principal Prepayment in
full during the related Prepayment Period, an amount equal to the excess of
one month's interest at the applicable Net Loan Rate on the amount of such
Principal Prepayment over the amount of interest (adjusted to the Net Loan
Rate) actually paid by the related Mortgagor with respect to such Prepayment
Period. The obligations of the Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section 3.24.
"Prepayment Period": With respect to any Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs.
"Primary Insurance Policy": Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
"Principal Balance": As to any Mortgage Loan, other than a Liquidated
Mortgage Loan, and any day, the related Cut-Off Date Principal Balance, minus
all collections credited against the Principal Balance of such Mortgage Loan.
For purposes of this definition, a Liquidated Mortgage Loan shall be deemed to
have a Principal Balance equal to the Principal Balance of the related
Mortgage Loan as of the final recovery of related Liquidation Proceeds and a
Principal Balance of zero thereafter. As to any REO Property and any day, the
Principal Balance of the related Mortgage Loan immediately prior to such
Mortgage Loan becoming REO Property minus any REO Principal Amortization
received with respect thereto on or prior to such day.
"Principal Distribution Amount": With respect to any Distribution
Date, the sum of (a) each scheduled payment of principal collected or advanced
on the related Mortgage Loans by the Servicer in respect of the related Due
Period, (b) that portion of the Purchase Price, representing principal of any
repurchased Mortgage Loan, deposited to the Collection Account during the
related Prepayment Period, (c) the principal portion of any related
Substitution Adjustments deposited in the Collection Account during the
related Prepayment Period, (d) the principal portion of all Insurance Proceeds
received during the related Prepayment Period with respect to Mortgage Loans
that are not yet Liquidated Mortgage Loans, (e) the principal portion of all
related Net Liquidation Proceeds received during the related Prepayment Period
with respect to Liquidated Mortgage Loans, (f) the principal portion of all
partial and full principal prepayments of Mortgage Loans applied by the
Servicer during the related Prepayment Period, and (g) on the Distribution
Date on which the Trust is to be terminated pursuant to Section 10.01 hereof,
that portion of the Termination Price in respect of principal.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date and that is not accompanied by an amount of interest representing the
full amount of scheduled interest due on any Due Date in any month or months
subsequent to the month of prepayment.
"Private Certificates": The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates.
"Pro Rata Senior Percentage": With respect to any Distribution Date,
the percentage equivalent of a fraction the numerator of which is the
aggregate of the Class Certificate Principal Balances of the Classes of Senior
Certificates immediately prior to such Distribution Date and the denominator
of which is the Aggregate Stated Principal Balance of all Mortgage Loans for
such Distribution Date.
"Pro Rata Share": As to any Distribution Date, the Subordinated
Principal Distribution Amount and any Class of Subordinate Certificates, the
portion of the Subordinated Principal Distribution Amount allocable to such
Class, equal to the product of (a) the Subordinated Principal Distribution
Amount on such date and (b) a fraction, the numerator of which is the related
Class Certificate Principal Balance of that Class and the denominator of which
is the aggregate of the Class Certificate Principal Balances of all the
Classes of Subordinate Certificates.
"Prospectus Supplement": That certain Prospectus Supplement dated
December 15, 2000 relating to the initial sale of the Senior Certificates.
"Purchase Price": With respect to any Mortgage Loan or REO Property
to be purchased pursuant to or as contemplated by Section 2.03 or Section
10.01 hereof, and as confirmed by an Officers' Certificate from the Seller or
the Servicer, as applicable, to the Trustee, an amount equal to the sum of (i)
100% of the Principal Balance thereof as of the date of purchase (or such
other price as provided in Section 10.01), plus (ii) in the case of (x) a
Mortgage Loan, accrued interest on such Principal Balance at the applicable
Net Loan Rate from the Due Date as to which interest was last covered by a
payment by the Mortgagor or an Advance by the Servicer, which payment or
Advance had as of the date of purchase been distributed pursuant to Section
4.01 hereof, through the end of the calendar month in which the purchase is to
be effected, and (y) an REO Property, the sum of (1) accrued interest on such
Principal Balance at the applicable Net Loan Rate from the Due Date as to
which interest was last covered by a payment by the Mortgagor or an Advance by
the Servicer through the end of the calendar month immediately preceding the
calendar month in which such REO Property was acquired, plus (2) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the total of
all net rental income, Insurance Proceeds, Liquidation Proceeds and Advances
that as of the date of purchase had been distributed as or to cover REO
Imputed Interest pursuant to Section 4.04 hereof, plus (iii) any unreimbursed
Servicing Advances and Advances and any unpaid Expense Fees allocable to such
Mortgage Loan or REO Property, plus (iv) any amounts previously withdrawn from
the Collection Account in respect of such Mortgage Loan or REO Property
pursuant to Section 3.23 hereof, and plus (v) in the case of a Mortgage Loan
required to be purchased pursuant to Section 2.03 hereof, expenses reasonably
incurred or to be incurred by the Servicer or the Trustee in respect of the
breach or defect giving rise to the purchase obligation.
"Put and Call Agreement": The Put and Call Agreement, dated as of
December 1, 2000, between Fifth Third Bank and the Trustee substantially in
the form annexed hereto as Exhibit O.
"Put and Call Date": The Distribution Date in September 2002.
"Put and Call Purchase Price": With respect to any Class A-1 or Class
A-2 Certificate for which the related Certificateholder has exercised its Put
Option, or any Optional Call Interest in respect of which the Standby
Purchaser has exercised the related Optional Call, the sum of (i) 100% of the
outstanding Certificate Principal Balance of such Certificate on the Put and
Call Date (after giving effect to any principal distributions otherwise made
on such date) plus (ii) accrued and unpaid interest thereon at the applicable
Pass-Through Rate due on the Put and Call Date (after giving effect to any
interest distributions otherwise made on such date). With respect to any
Subordinate Certificate for which the related Certificateholder has exercised
its Put Option, or any Optional Call Interest in respect of which the Standby
Purchaser has exercised the related Optional Call, the sum of (i) 100% of the
outstanding Certificate Principal Balance of such Certificate on the Put and
Call Date (after giving effect to any principal distributions otherwise made
on such date) plus (ii) accrued and unpaid interest thereon at the applicable
Pass-Through Rate due on the Put and Call Date (after giving effect to any
interest distributions otherwise made on such date).
"Put Option": With respect to each Class A-1 and Class A-2
Certificate, the right granted by the Standby Purchaser under the Put and Call
Agreement to the Holder of such Certificate to require the Standby Purchaser
to purchase all or part of such Certificate on the Put and Call Date. With
respect to each Subordinate Certificate, the right granted by the Standby
Purchaser under the Put and Call Agreement to the Holder of such Certificate
to require the Standby Purchaser to purchase all or part of such Certificate
on the Put and Call Date.
"Put Option Notice": A form of notice in the form of Exhibit N
hereto.
"Qualified Insurer": A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over such insurer in connection
with the insurance policy issued by such insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a Fannie Mae-approved mortgage insurer and having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
"Qualified Substitute Mortgage Loan": A mortgage loan substituted for
a Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on
the date of such substitution, (i) have an outstanding principal balance,
after application of all scheduled payments of principal and interest due
during or prior to the month of substitution, not in excess of, and not more
than 5% less than, the Principal Balance of the Deleted Mortgage Loan as of
the Due Date in the calendar month during which the substitution occurs, (ii)
have a maximum mortgage loan rate not less than the Maximum Loan Rate of the
Deleted Mortgage Loan, (iii) have a minimum loan rate not less than the
Minimum Loan Rate of the Deleted Mortgage Loan, (iv) have a gross margin equal
to or greater than the Gross Margin of the Deleted Mortgage Loan, (v) have the
same Index as the Deleted Mortgage Loan, (vi) have its next adjustment date
not more than two months after the next Adjustment Date of 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) be
current as of the date of substitution, (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 determined by
the Seller to be at least equal to the risk grading assigned on the Deleted
Mortgage Loan, (xi) have been underwritten or re-underwritten by the Seller in
accordance with the same underwriting criteria and guidelines as the Deleted
Mortgage Loan and (xii) conform to each representation and warranty set forth
in Section 2.04 hereof applicable to the Deleted Mortgage Loan. In the event
that one or more mortgage loans are substituted for one or more Deleted
Mortgage Loans, the amounts described in clause (i) hereof shall be determined
on the basis of aggregate principal balances, the terms described in clause
(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, the risk gradings described
in clause (x) 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.
"Rating Agencies": S&P and Moody's or their respective successors. If
none of such agencies or their successors shall be in existence, "Rating
Agencies" shall include such nationally recognized statistical rating agency,
or other comparable Person, as shall have been designated by the Depositor,
notice of which designation shall be given to the Trustee and the Servicer.
"Realized Loss": With respect to any Liquidated Mortgage Loan, the
amount of loss realized equal to the portion of the Principal Balance
remaining unpaid after application of all Net Liquidation Proceeds in respect
of such Liquidated Mortgage Loan.
"Record Date": With respect to each Distribution Date and all Classes
of Certificates, the last Business Day of the calendar month preceding the
month in which such Distribution Date occurs.
"Refinancing Mortgage Loan": Any Mortgage Loan originated in
connection with the refinancing of an existing mortgage loan.
"Regular Certificate": Any Certificate other than the Class A-R
Certificate.
"Relief Act": The Soldiers' and Sailors Civil Relief Act of 1940, as
amended.
"Relief Act Reductions": With respect to any Distribution Date and
any Mortgage Loan as to which there has been a reduction in the amount of
interest collectible thereon for the most recently ended Due Period as a
result of the application of the Relief Act, the amount, if any, by which (i)
interest collectible on that Mortgage Loan during such Due Period is less than
(ii) one month's interest on the Principal Balance of such Mortgage Loan at
the Loan Rate for such Mortgage Loan before giving effect to the application
of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
"Remittance Report": A report prepared by the Servicer and delivered
to the Trustee pursuant to Section 4.05 hereof.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The account or accounts maintained by the Servicer in
respect of an REO Property pursuant to Section 3.23 hereof.
"REO Disposition": The sale or other disposition of an REO Property
on behalf of the Trust Fund.
"REO Imputed Interest": As to any REO Property, for any calendar
month during which such REO Property was at any time part of the Trust Fund,
one month's interest at the applicable Net Loan Rate on the Principal Balance
of such REO Property (or, in the case of the first such calendar month, of the
related Mortgage Loan if appropriate) as of the Close of Business on the Due
Date in such calendar month.
"REO Principal Amortization": With respect to any REO Property, for
any calendar month, the excess, if any, of (a) the aggregate of all amounts
received in respect of such REO Property during such calendar month, whether
in the form of rental income, sale proceeds (including, without limitation,
that portion of the Termination Price paid in connection with a purchase of
all of the Mortgage Loans and REO Properties pursuant to Section 10.01 hereof
that is allocable to such REO Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to Section 3.23 hereof in respect of the
proper operation, management and maintenance of such REO Property or (ii)
payable or reimbursable to the Servicer pursuant to Section 3.23 for unpaid
Servicing Fees in respect of the related Mortgage Loan and unreimbursed
Servicing Advances and Advances in respect of such REO Property or the related
Mortgage Loan, over (b) the REO Imputed Interest in respect of such REO
Property for such calendar month.
"REO Property": A Mortgaged Property acquired by the Servicer on
behalf of the Trust Fund through foreclosure or deed-in-lieu of foreclosure,
as described in Section 3.23 hereof.
"Request for Release": A release signed by a Servicing Officer, in
the form of Exhibit F attached hereto.
"Residential Dwelling": Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project, (iv) a manufactured home or
(v) a detached one-family dwelling in a planned unit development, none of
which is a co-operative or mobile home.
"Responsible Officer": When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the Chairman
or Vice Chairman of the Executive or Standing Committee of the Board of
Directors or Trustees, the President, any vice president, any assistant vice
president, the Secretary, any assistant secretary, the Treasurer, any
assistant treasurer, the Cashier, any assistant cashier, any trust officer or
assistant trust officer, the Controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and in each case having
direct responsibility for the administration of this Agreement and, with
respect to a particular matter, to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Restricted Classes": As defined in Section 4.01(e).
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
"Seller": Fifth Third Mortgage Company, an Ohio Corporation, and its
successors in interest, in its capacity as seller under this Agreement.
"Senior Certificate": Any one of the Class A-1 Certificates, Class
A-2 Certificates, Class X Certificates or the Class A-R Certificate.
"Senior Certificateholder": Any Holder of a Senior Certificate.
"Senior Percentage": Except as described below, the "Senior
Percentage" for any Distribution Date occurring before January 2011 will equal
100%. The Senior Percentage for any Distribution Date occurring (i) before
January 2011 but in or after December 2003 on which the Two Times Test is
satisfied, or (ii) in or after January 2011, is the Pro Rata Senior
Percentage. If the Two Times Test is satisfied prior to the Distribution Date
in December 2003, the Senior Percentage is the Pro Rata Senior Percentage plus
50% of an amount equal to 100% minus the related Pro Rata Senior Percentage
until the Distribution Date in December 2003.
"Senior Prepayment Percentage": With respect to any Distribution Date
during the ten years beginning on the first Distribution Date, 100%. Except as
provided herein, the Senior Prepayment Percentage for any Distribution Date
occurring on or after the tenth anniversary of the first Distribution Date
will be as follows: (i) from January 2011 through December 2011, the related
Senior Percentage plus 70% of the related Subordinate Percentage for that
Distribution Date; (ii) from January 2012 through December 2012, the related
Senior Percentage plus 60% of the related Subordinate Percentage for that
Distribution Date; (iii) from January 2013 through December 2013, the related
Senior Percentage plus 40% of the related Subordinate Percentage for that
Distribution Date; (iv) from January 2014 through December 2014, the related
Senior Percentage plus 20% of the related Subordinate Percentage for that
Distribution Date; and (v) from and after January 2015, the related Senior
Percentage for that Distribution Date; provided, however, that there shall be
no reduction in the Senior Prepayment Percentage unless both Step Down
Conditions are satisfied; and provided, further, that if on any Distribution
Date the Senior Percentage exceeds the initial Pro Rata Senior Percentage, the
Senior Prepayment Percentage for that Distribution Date will again equal 100%.
Notwithstanding the above, if on any Distribution Date the Two Times
Test is satisfied, the Senior Prepayment Percentage for such Distribution Date
will equal the related Senior Percentage.
"Senior Principal Distribution Amount": With respect to any
Distribution Date, the sum of:
(1) the Senior Percentage of all amounts described in clauses
(a) through (d) and (g) of the definition of "Principal Distribution
Amount" for that Distribution Date;
(2) with respect to each Mortgage Loan which became a
Liquidated Mortgage Loan during the related Prepayment Period, the
lesser of
(x) the related Senior Percentage of the Stated Principal
Balance of that Mortgage Loan and
either
(y) the related Senior Prepayment Percentage of the
amount of the Net Liquidation Proceeds allocable to
principal received with respect to that Mortgage Loan
or
(z) if an Excess Loss was sustained with respect to such
Liquidated Mortgage Loan during such related
Prepayment Period, the related Senior Percentage of
the amount of Net Liquidation Proceeds allocable to
principal received with respect to that Mortgage
Loan; and
(3) the related Senior Prepayment Percentage of the amounts
described in clause (f) of the definition of "Principal Distribution
Amount" for that Distribution Date;
provided, however, that if a Bankruptcy Loss that is an Excess Loss is
sustained with respect to any Mortgage Loan that is not a Liquidated Mortgage
Loan, such Senior Principal Distribution Amount will be reduced on such
Distribution Date by the related Senior Percentage of the principal portion of
such Bankruptcy Loss.
"Servicer": Fifth Third Bank, a state chartered Ohio banking
corporation, and its successors and assigns, or any successor servicer
appointed as herein provided.
"Servicer Affiliate": A Person (i) controlling, controlled by or
under common control with the Servicer or which is 50% or more owned by the
Servicer and (ii) which is qualified to service residential mortgage loans.
"Servicer Event of Termination": One or more of the events described
in Section 7.01 hereof.
"Servicer Remittance Date": With respect to any Distribution Date,
the day prior to such Distribution Date or, if such day is not a business day,
the first business day prior to such day, commencing in January 2001.
"Servicing Account": The account or accounts created and maintained
by the Servicer pursuant to Section 3.09 hereof.
"Servicing Advances": With respect to a Mortgage Loan, all customary,
reasonable and necessary "out of pocket" costs and expenses (including
reasonable attorneys' fees and expenses) incurred by the Servicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration, inspection and protection of the
related Mortgaged Property, (ii) any enforcement or judicial proceedings,
including foreclosures, (iii) the management and liquidation of the related
REO Property and (iv) compliance with the obligations under Sections 3.01,
3.09, 3.16, and 3.23 hereof.
"Servicing Fee": With respect to each Mortgage Loan 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 same
principal amount on which interest on such Mortgage Loan accrues for such
calendar month. The Servicing Fee for the Servicer may be retained by any
Sub-Servicer as its servicing compensation.
"Servicing Fee Rate": 0.25% 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 Standard": The standards set forth in Section 3.01 hereof.
"Special Hazard Coverage Termination Date": The date on which the
Special Hazard Loss Coverage Amount is reduced to zero.
"Special Hazard Loss": Any Realized Loss suffered by a Mortgaged
Property on account of direct physical loss but not including (i) any loss of
a type covered by a hazard insurance policy or a flood insurance policy
required to be maintained with respect to such Mortgaged Property pursuant to
Section 3.14 hereof to the extent of the amount of such loss covered thereby,
or (ii) any loss caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, the Servicer or any of their agents or employees (without regard to
any portion of the loss not covered by any errors and omissions policy);
(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for the
ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and whether
such loss be direct or indirect, proximate or remote or be in whole or in part
caused by, contributed to or aggravated by a peril covered by the definition
of the term "Special Hazard Loss";
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending or
expected attack:
1. by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air
forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority or
risks of contraband or illegal transportation or trade.
"Special Hazard Loss Coverage Amount": With respect to the first
Distribution Date, $5,826,316. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greater of (i) 1% of the
aggregate of the Principal Balances of the Mortgage Loans and (ii) twice the
Principal Balance of the largest Mortgage Loan and (b) the Special Hazard Loss
Coverage Amount as of the Closing Date less the amount, if any, of Special
Hazard Losses allocated to the Certificates since the Closing Date; provided,
however, that the Special Hazard Loss Coverage Amount may also be reduced
pursuant to a letter from each Rating Agency to the Trustee to the effect that
any such reduction will not result in the downgrading of the then current
ratings assigned by such Rating Agency to the Classes of Senior Certificates.
All Principal Balances for the purpose of this definition will be calculated
as of the first day of the calendar month preceding the month of such
Distribution Date after giving effect to scheduled payments on the Mortgage
Loans then due, whether or not paid.
"Special Hazard Mortgage Loan": A Liquidated Mortgage Loan as to
which a Special Hazard Loss has occurred.
"Standby Purchaser": Fifth Third Bank, or its successors in interest
pursuant to the Put and Call Agreement.
"Startup Day": As defined in Section 9.01(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, as shown in the Mortgage Loan Schedule,
minus, in the case of each Mortgage Loan, the sum of (i) the principal portion
of each Monthly Payment due on a Due Date subsequent to the Cut-Off Date, to
the extent received from the Mortgagor or advanced by the Servicer 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
hereof, 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 Due
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: (x) 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 (y) 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.
"Step Down Conditions": As of the first Distribution Date as to which
any decrease in any Senior Prepayment Percentage applies, (i) the outstanding
Principal Balance of all Mortgage Loans 60 days or more Delinquent, including
Mortgage Loans in respect of REO Properties (averaged over the preceding six
month period), as a percentage of the aggregate of the Class Certificate
Principal Balances of the Classes of Subordinate Certificates on such
Distribution Date, does not equal or exceed 50% and (ii) cumulative Realized
Losses with respect to the Mortgage Loans do not exceed (a) with respect to
each Distribution Date from January 2011 through December 2011, 30% of the
Original Subordinated Principal Balance, (b) with respect to each Distribution
Date from January 2012 through December 2012, 35% of the Original Subordinated
Principal Balance, (c) with respect to each Distribution Date from January
2013 through December 2013, 40% of the Original Subordinated Principal
Balance, (d) with respect to each Distribution Date from January 2014 through
December 2014, 45% of the Original Subordinated Principal Balance and (e) with
respect to each Distribution Date from and after January 2015, 50% of the
Original Subordinated Principal Balance.
"Subordinate Certificate": Any one of the Class B-1 Certificates,
Class B-2 Certificates, Class B-3 Certificates, Class B-4 Certificates, Class
B-5 Certificates or Class B-6 Certificates.
Subordinate Certificate Pass-Through Rate": For any Class of
Subordinate Certificates, the Net WAC.
"Subordinate Percentage": With respect to any Distribution Date, the
difference between 100% and the Senior Percentage for such Distribution Date.
"Subordinate Prepayment Percentage": With respect to any Distribution
Date, the difference between 100% and the related Senior Prepayment Percentage
for that Distribution Date.
"Subordinated Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of:
(1) the related Subordinate Percentage of all amounts described
in clauses (a) through (d) and (g) of the definition of "Principal
Distribution Amount" for that Distribution Date;
(2) with respect to each Mortgage Loan that became a Liquidated
Mortgage Loan during the related Prepayment Period, the amount of
the Net Liquidation Proceeds allocated to principal received with
respect thereto remaining after application thereof pursuant to
clause (2) of the definition of "Senior Principal Distribution
Amount" for that Distribution Date, up to the related Subordinate
Percentage of the Stated Principal Balance of such Mortgage Loan;
and
(3) the related Subordinated Prepayment Percentage of all
amounts described in clause (f) of the definition of "Principal
Distribution Amount" for that Distribution Date;
provided, however, that if a Bankruptcy Loss that is an Excess Loss is
sustained with respect to any Mortgage Loan that is not a Liquidated Mortgage
Loan, such Subordinated Principal Distribution Amount will be reduced on such
Distribution Date by the related Subordinate Percentage of the principal
portion of such Bankruptcy Loss.
"Sub-Servicer": Any Person with which the Servicer has entered into a
Sub-Servicing Agreement and which meets the qualifications of a Sub-Servicer
pursuant to Section 3.02.
"Sub-Servicing Account": An account established by a Sub-Servicer
that meets the requirements set forth in Section 3.08 and is otherwise
acceptable to the Servicer.
"Sub-Servicing Agreement": The written contract between the Servicer
and a Sub-Servicer relating to servicing and administration of certain
Mortgage Loans as provided in Section 3.02.
"Substitution Adjustment": As defined in Section 2.03(d) hereof.
"Tax Matters Person": The tax matters person appointed pursuant to
Section 9.01(e) hereof.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of the REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of each of the Upper Tier REMIC and Lower Tier
REMIC under the REMIC Provisions, together with any and all other information
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal,
state or local tax laws.
"Termination Price": As defined in Section 10.01(a) hereof.
"Three-Year CMT": The weekly average yield on United States Treasury
securities adjusted to a constant maturity of three years as published by the
Federal Reserve Board in Statistical Release H.15(519).
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in the Class A-R Certificate.
"Transfer Affidavit": As defined in Section 5.02(e)(ii) hereof.
"Trust": Fifth Third Bank Mortgage Loan Trust 2000-FTB1, the trust
created hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered
hereunder, with respect to which a REMIC election is to be made, such Trust
Fund consisting of: (i) such Mortgage Loans as from time to time are subject
to this Agreement, together with the Mortgage Files relating thereto, and
together with all collections thereon and proceeds thereof, (ii) any REO
Property, together with all collections thereon and proceeds thereof, (iii)
the Trustee's rights with respect to the Mortgage Loans under all insurance
policies required to be maintained pursuant to this Agreement and any proceeds
thereof, (iv) the Depositor's rights under the Mortgage Loan Purchase
Agreement (including any security interest created thereby) and (v) the
Collection Account, the Distribution Account (subject to the last sentence of
this definition), any REO Account and such assets that are deposited therein
from time to time and any investments thereof, together with any and all
income, proceeds and payments with respect thereto. Notwithstanding the
foregoing, however, the Trust Fund specifically excludes (1) all payments and
other collections of interest due on the Mortgage Loans on or before the
Cut-Off Date and principal received before the Cut-Off Date (except any
principal collected as part of a payment due on or after the Cut-Off Date) and
(2) all income and gain realized from Permitted Investments of funds on
deposit in the Collection Account and the Distribution Account.
"Trustee": The Chase Manhattan Bank, a New York banking corporation,
or any successor trustee appointed as herein provided.
"Trustee Fee": As to any Distribution Date, an amount equal to
one-twelfth of the Trustee Fee Rate multiplied by the aggregate of the Stated
Principal Balances of all the Mortgage Loans as of the beginning of the
related Due Period.
"Trustee Fee Rate": 0.0025% per annum.
"Two Times Test": As to any Distribution Date, (i) the Aggregate
Subordinate Percentage is at least two times the Aggregate Subordinate
Percentage as of the Closing Date; (ii) the aggregate of the Principal
Balances of all Mortgage Loans 60 days or more Delinquent, including Mortgage
Loans in respect of REO Properties (averaged over the preceding six-month
period), as a percentage of the aggregate of the Class Certificate Principal
Balances of the Subordinate Certificates, does not equal or exceed 50%; and
(iii) cumulative Realized Losses do not exceed 30% of the Original
Subordinated Principal Balance.
"Underwriter's Exemption": Prohibited Transaction Exemption 2000-58,
65 Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
"Uninsured Cause": Any cause of damage to a Mortgaged Property such
that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained pursuant to Section
3.14 hereof.
"United States Person" or "U.S. Person": A citizen or resident of the
United States, a corporation, partnership or other entity treated as a
corporation or partnership for federal income tax purposes (other than a
partnership that is not treated as a U.S. Person pursuant to any applicable
Treasury regulations) created or organized in, or under the laws of, the
United States, any state thereof or the District of Columbia (provided that,
for purposes solely of the restrictions on the transfer of the Class A-R
Certificate, no partnership or other entity treated as a partnership for
United States federal income tax purposes shall be treated as a United States
Person) or an estate the income of which from sources without the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States persons have authority to control all substantial
decisions of the trust. The term "United States" shall have the meaning set
forth in Section 7701 of the Code or successor provisions.
"Unpaid Interest Shortfall Amount": With respect to each Class of
Certificates and (i) the first Distribution Date, zero, and (ii) any
Distribution Date after the first Distribution Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Distributable Amount for that
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for that Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on that Class
in respect of interest pursuant to clause (a) of this definition on the
preceding Distribution Date.
"Upper Tier REMIC": As defined in the Preliminary Statement.
"Upper Tier REMIC Regular Interest": As defined in the Preliminary
Statement.
"Value": With respect to any Mortgage Loan and the related Mortgaged
Property, the lesser of:
(i) the 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 Fannie Mae and Freddie Mac, and (b) the value thereof
as determined by a review appraisal conducted by the Seller in the
event any such review appraisal determines an appraised value more
than 10% lower than the value thereof, in the case of a Mortgage Loan
with a Loan-to-Value Ratio less than or equal to 80%, or more than 5%
lower than the value thereof, in the case of a Mortgage Loan with a
Loan-to-Value Ratio greater than 80%, 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, that (A) in the case of a refinanced Mortgage Loan (which
is a Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property), such value of the Mortgaged Property is based solely upon
the lesser of (i) the value determined by an appraisal made for the originator
of such refinanced Mortgaged Loan at the time of origination of such
refinanced Mortgage Loan by an appraiser who met the minimum requirements of
Fannie Mae and Freddie Mac and (ii) the value thereof as determined by a
review appraisal conducted by the Seller in the event any such review
appraisal determines an appraised value more than 10% lower than the value
thereof, in the case of a Mortgage Loan with a Loan-to-Value Ratio less than
or equal to 80%, or more than 5% lower than the value thereof, in the case of
a Mortgage Loan with a Loan-to-Value Ratio greater than 80%, as determined by
the appraisal referred to in clause (ii)(A)(i) above, and (B) in the case of a
Mortgage Loan originated in connection with a "lease option purchase," such
value of the Mortgaged Property is based on the lower of the value determined
by an appraisal made for the originator of such Mortgage Loan at the time of
origination or the sale price of such Mortgaged Property if the "lease option
purchase price" was set less than 12 months prior to origination, and is based
on the value determined by an appraisal made for the originator of such
Mortgage Loan at the time of the origination if the "lease option purchase
price" was set 12 months or more prior to origination.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. For so long as the Class X
Certificates are outstanding, 1% of the voting rights shall be allocated to
the Class X Certificates (such Voting Rights to be allocated among the Holders
of Class X Certificates in accordance with their respective Percentage
Interests) and the remainder of the voting rights (or 100% thereof when the
Class X Certificates are no longer outstanding) shall be allocated among the
Classes of Certificates other than the Class X Certificates, pro rata, based
on a fraction, expressed as a percentage, the numerator of which is the Class
Certificate Principal Balance of such Class and the denominator of which is
the aggregate of the Class Certificate Principal Balances then outstanding;
provided, however, that the Class A-R Certificate and the Subordinate
Certificates shall not be entitled to any voting rights for so long as any
Senior Certificates (other than the Class A-R Certificate) remain outstanding;
and, provided further, that when none of the Regular Certificates is
outstanding, 100% of the voting rights shall be allocated to the Holder of the
Class A-R Certificate. The voting rights allocated to a Class of Certificates
shall be allocated among all Holders of such Class, pro rata, based on a
fraction the numerator of which is the Certificate Principal Balance or
Certificate Notional Balance of each Certificate of such Class and the
denominator of which is the Class Certificate Principal Balance or Class
Certificate Notional Balance of such Class; provided, however, that any
Certificate registered in the name of the Seller, the Servicer, the Depositor
or the Trustee or any of their respective affiliates shall not be included in
the calculation of Voting Rights.
SECTION 1.02. Accounting.
Unless otherwise specified herein, for the purpose of any definition
or calculation, whenever amounts are required to be netted, subtracted or
added or any distributions are taken into account such definition or
calculation and any related definitions or calculations shall be determined
without duplication of such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders all the right,
title and interest of the Depositor, including any security interest therein
for the benefit of the Depositor, in and to (i) each Mortgage Loan identified
on the Mortgage Loan Schedule, including the related Cut-Off Date Principal
Balance, all interest due thereon after the Cut-Off Date and all collections
in respect of interest and principal due after the Cut-Off Date; (ii) any real
property that secured each such Mortgage Loan and that has been acquired by
foreclosure or deed in lieu of foreclosure; (iii) the Depositor's interest in
any insurance policies in respect of the Mortgage Loans; (iv) all proceeds of
any of the foregoing; and (v) all other assets included or to be included in
the Trust Fund. Such assignment includes all interest and principal due to the
Depositor or the Servicer after the Cut-Off Date with respect to the Mortgage
Loans.
In connection with such transfer and assignment, the Seller, on
behalf of the Depositor, does hereby deliver on the Closing Date, unless
otherwise specified in this Section 2.01, to, and deposit with the Trustee the
following documents or instruments with respect to each Mortgage Loan (a
"Mortgage File") so transferred and assigned:
(i) the original Mortgage Note, endorsed either on its face or by
allonge attached thereto in the following form: "Pay to the
order of The Chase Manhattan Bank, as Trustee under the
Pooling and Servicing Agreement, dated as of December 1,
2000, Fifth Third Bank Mortgage Loan Trust 2000-FTB1,
Mortgage Pass-Through Certificates, Series 2000-FTB1,
without recourse" or, with respect to any lost Mortgage
Note, an original Lost Note Affidavit stating that the
original mortgage note was lost, misplaced or destroyed,
together with a copy of the related mortgage note; provided,
however, that such substitutions of Lost Note Affidavits for
original Mortgage Notes may occur only with respect to
Mortgage Loans the aggregate Original Principal Amount of
the Mortgage Loans which is less than or equal to 1.40% of
the Cut-Off Date Aggregate Principal Balance;
(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, has
been lost or is not otherwise available, a copy of such
Mortgage or power of attorney, as the case may be, a copy of
the original submitted for recording, together with an
affidavit of the Seller to the effect that such copy is true
and complete;
(iii) an original Assignment of Mortgage, in blank, but otherwise
in form and substance acceptable for recording;
(iv) except for Mortgage Loans not originated by Fifth Third
Mortgage Company or any of its affiliates, an original or a
true and complete copy of any intervening Assignment of
Mortgage, showing a complete chain of assignments;
(v) the original or a true and complete copy of lender's title
insurance policy or, if no such policy has been obtained, a
title opinion; and
(vi) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any.
The Seller shall deliver the required documents specified in clause
(i) above to the Trustee prior to the Closing Date and shall deliver all other
required documents to the Trustee within 60 days following the Closing Date.
The Trustee agrees to execute and deliver to the Depositor on or
prior to the Closing Date an acknowledgment of receipt of the original
Mortgage Note (with any exceptions noted), substantially in the form attached
as Exhibit G-3 hereto.
If, as of the date when all required documents are required to have
been delivered to the Trustee, any of the documents referred to in Section
2.01(ii) above has been submitted for recording but either (x) has not been
returned from the applicable public recording office or (y) has been lost or
such public recording office has retained the original of such document, the
obligations of the Seller to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Trustee, no later than the date when all
required documents are required to have been delivered to the Trustee, of a
copy of each such document together with an affidavit of the Seller to the
effect that such copy is a true and complete copy of the original that was
submitted for recording and, in the case of (x) above, delivery to the
Trustee, promptly upon receipt thereof, of either the original or a copy of
such document (if the applicable public recording office has retained the
original of such document). If the original lender's title insurance policy,
or a true and complete copy thereof, was not delivered pursuant to Section
2.01(v) above solely because such policy had not been received following the
request therefor, the Seller shall deliver or cause to be delivered to the
Trustee the original or a copy of a written commitment or interim binder or
preliminary report of title issued by the title insurance or escrow company,
with the original or a true and complete copy thereof to be delivered to the
Trustee, promptly upon receipt thereof. The Seller shall deliver or cause to
be delivered to the Trustee, promptly upon receipt thereof, any other
documents constituting a part of a Mortgage File received with respect to any
Mortgage Loan sold to the Depositor by the Seller, including, but not limited
to, any original documents evidencing an assumption or modification of any
Mortgage Loan.
The Seller shall cause each Assignment of Mortgage referred to in
Section 2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv)
hereof to be recorded if at any time the long-term debt rating of Fifth Third
Bank assigned by Moody's falls below "A3" or assigned by S&P falls below "A-"
(a "Trigger Event"); provided, however, that the Seller need not cause to be
recorded any Assignment which relates to a Mortgage Loan in any jurisdiction
under the laws of which, as evidenced by an Opinion of Counsel delivered by
the Seller to the Trustee and the Rating Agencies, the recordation of such
Assignment is not necessary to protect the Trustee's interest in the related
Mortgage Loan. The Seller shall be required to deliver such Assignments for
recording or Opinion of Counsel to the Trustee and the Rating Agencies within
30 days of the occurrence of a Trigger Event. In the event that any such
Assignment submitted for recording is lost or returned unrecorded because of a
defect therein, the Seller shall promptly have a substitute Assignment
prepared or have such defect cured, as the case may be, and thereafter cause
each such Assignment to be duly recorded. The Trustee shall not be deemed to
have notice of a Trigger Event unless it receives written notice or has actual
knowledge of the same.
Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File, the Seller
shall have 120 days to cure such defect or deliver such missing document to
the Trustee. If the Seller does not cure such defect or deliver such missing
document within such time period, the Seller shall either repurchase or
substitute for such Mortgage Loan in accordance with Section 2.03 hereof.
The Depositor herewith delivers to the Trustee an executed copy of
the Mortgage Loan Purchase Agreement.
The Servicer shall, with respect to each Mortgage Loan, forward to
the Trustee original documents evidencing an assumption, modification,
consolidation or extension of such Mortgage Loan entered into in accordance
with this Agreement within two weeks of their execution; provided, however,
that the Servicer shall provide the Trustee with a true and complete copy of
any such document submitted for recordation within two weeks of its execution,
and shall provide the original of any document submitted for recordation or a
copy of such document certified by the appropriate public recording office to
be a true and complete copy of the original within 90 days of its submission
for recordation (or, if a delay is caused by the public recording office,
promptly upon the Servicer's receipt of such document). In the event that the
Servicer cannot provide a copy of such document certified by the public
recording office within such 90 day period, the Servicer shall deliver to the
Trustee, within such 90 day period, an Officers' Certificate of the Servicer
which shall (A) identify the recorded document, (B) state that the recorded
document has not been delivered to the Trustee due solely to a delay caused by
the public recording office, (C) state the amount of time generally required
by the applicable recording office to record and return a document submitted
for recordation, if known, and (D) specify the date the applicable recorded
document is expected to be delivered to the Trustee, if known, and, upon
receipt of a copy of such document certified by the public recording office,
the Servicer shall immediately deliver such document to the Trustee. In the
event that the appropriate public recording office will not certify as to the
accuracy of such document, the Servicer shall deliver a copy of such document
certified by an officer of the Servicer to be a true and complete copy of the
original to the Trustee.
SECTION 2.02. Acceptance by Trustee.
The Trustee acknowledges the receipt of the Mortgage Notes and,
subject to the provisions of Section 2.01 and subject to the review described
below and any exceptions noted on the exception report described in the next
paragraph below, of the documents referred to in Section 2.01 above and all
other assets included in the definition of "Trust Fund" and declares that it
holds and will hold such documents and the other documents delivered to it
constituting a Mortgage File, and that it holds or will hold all such assets
and such other assets included in the definition of "Trust Fund" in trust for
the exclusive use and benefit of all present and future Certificateholders.
The Trustee further agrees, for the benefit of the
Certificateholders, to review each Mortgage File delivered to it and to
certify and deliver to the Depositor, the Servicer and each Rating Agency in
substantially the form attached hereto as Exhibit G-1, 90 days of the Closing
Date (and, with respect to any Qualified Substitute Mortgage, within 30 days
after the assignment thereof) that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in the exception report annexed thereto
as not being covered by such certification), (i) all documents required to be
delivered to it pursuant to Section 2.01 (i) through (v) of this Agreement are
in its possession, (ii) such documents have been reviewed by it and have not
been mutilated, damaged or torn and relate to such Mortgage Loan and (iii)
based on its examination and only as to the foregoing, the information set
forth in the Mortgage Loan Schedule that corresponds to the information set
forth in items (i), (ii), (iii), (x) and (xi) of the definition of the
"Mortgage Loan Schedule" accurately reflects information set forth in the
Mortgage File. It is herein acknowledged that, in conducting such review, the
Trustee is under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they
are genuine, enforceable, or appropriate for the represented purpose or that
they have actually been recorded or that they are other than what they purport
to be on their face or to determine whether any Mortgage File should include
the documents specified in 2.01(vi).
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 G-2 evidencing the completeness of the Mortgage
Files, with any applicable exceptions noted thereon.
If, in the process of reviewing the Mortgage Files and making or
preparing, as the case may be, the certifications referred to above, the
Trustee finds any document or documents constituting a part of a Mortgage File
to be missing or defective in any material respect, at the conclusion of its
review the Trustee shall so notify the Seller, the Depositor and the Servicer.
In performing any such review, the Trustee may conclusively rely on the Seller
as to the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents listed in
Section 2.01(i) through (v) have been received and further confirming that any
and all documents delivered pursuant to Section 2.01(i) through (v) have been
executed and relate to the Mortgage Loans identified in the Mortgage Loan
Schedule. 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.
In addition, upon the discovery by the Seller, the Depositor or the Servicer
(or upon receipt by the Trustee of written notification of such breach) of a
breach of any of the representations and warranties made by the Seller in the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan that
materially adversely affects such Mortgage Loan or the interests of the
related Certificateholders in such Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties to this
Agreement.
The Depositor and the Trustee intend that the assignment and transfer
herein contemplated constitute a sale of the Mortgage Loans, the related
Mortgage Notes and the related documents, conveying good title thereto free
and clear of any liens and encumbrances, from the Depositor to the Trustee and
that such property not be part of the Depositor's estate or property of the
Depositor in the event of any insolvency by the Depositor. In the event that
such conveyance is deemed to be, or to be made as security for, a loan, the
parties intend that the Depositor shall be deemed to have granted and does
hereby grant to the Trustee a first priority perfected security interest in
all of the Depositor's right, title and interest in and to the Mortgage Loans,
the related Mortgage Notes and the related documents, and that this Agreement
shall constitute a security agreement under applicable law.
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by the
Seller.
(a) Upon discovery or receipt of written notice of any materially
defective document in, or that a document is missing from, a Mortgage File or
of the breach by the Seller of any representation, warranty or covenant under
the Mortgage Loan Purchase Agreement or in Section 2.04 or Section 2.08 hereof
in respect of any Mortgage Loan which materially adversely affects the value
of that Mortgage Loan or the interest therein of the Certificateholders, the
Trustee shall promptly notify the Seller and the Servicer of such defect,
missing document or breach, and request that the Seller deliver such missing
document or cure such defect or breach within 90 days from the date that the
Seller was notified of such missing document, defect or breach, and, if the
Seller does not deliver such missing document or cure such defect or breach in
all material respects during such period, the Trustee shall enforce the
Seller's obligation under the Mortgage Loan Purchase Agreement and cause the
Seller to repurchase that Mortgage Loan from the Trust Fund at the Purchase
Price on or prior to the Determination Date following the expiration of such
90 day period (subject to Section 2.03(e) below); provided, however, that, in
connection with any such breach that could not reasonably have been cured
within such 90 day period, if the Seller shall have commenced to cure such
breach within such 90 day period, the Seller shall be permitted to proceed
thereafter diligently and expeditiously to cure the same within the additional
period provided under the Mortgage Loan Purchase Agreement; and, provided
further, that, in the case of the breach of any representation, warranty or
covenant made by the Seller in Section 3.01 of the Mortgage Loan Purchase
Agreement, the Seller shall be obligated to cure such breach or purchase the
affected Mortgage Loans. Furthermore, the Trustee shall enforce the Seller's
obligation under the Mortgage Loan Purchase Agreement and cause the Seller to
repurchase from the Trust Fund at the Purchase Price each Mortgage Loan that
is 90 days or more Delinquent as of any Due Date and as to which any
intervening Assignment is missing from the related Mortgage File not later
than the fifth Business Day following the end of the immediately preceding Due
Period. The Purchase Price for each 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 to the Seller
the related Mortgage File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Seller shall
furnish to it and as shall be necessary to vest in the Seller any Mortgage
Loan released pursuant hereto and the Trustee shall have no further
responsibility with regard to such Mortgage File (it being understood that the
Trustee shall have no responsibility for determining the sufficiency of such
assignment for its intended purpose). In lieu of repurchasing any such
Mortgage Loan as provided above, the Seller may cause such Mortgage Loan to be
removed from the Trust Fund (in which case it shall become a Deleted Mortgage
Loan) and substitute one or more Qualified Substitute Mortgage Loans in the
manner and subject to the limitations set forth in Section 2.03(d) below. It
is understood and agreed that the obligation of the Seller to cure or to
repurchase (or to substitute for) any Mortgage Loan as to which a document is
missing, a material defect in a constituent document exists or as to which
such a breach has occurred and is continuing shall constitute the sole remedy
against the Seller respecting such omission, defect or breach available to the
Trustee on behalf of the Certificateholders.
The Trustee shall enforce the obligations of the Seller under the
Mortgage Loan Purchase Agreement including, without limitation, any obligation
of the Seller to purchase a Mortgage Loan on account of missing or defective
documentation or on account of a breach of a representation, warranty or
covenant as described in this Section 2.03(a).
(b) [Reserved].
(c) Within 90 days of the earlier of discovery by the Servicer or
receipt of notice by the Servicer of the breach of any representation,
warranty or covenant of the Servicer set forth in Section 2.05 that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the Servicer shall cure such breach in all material respects or purchase
the affected Mortgage Loan at the Purchase Price.
(d) Any substitution of Qualified Substitute Mortgage Loans for
Deleted Mortgage Loans made pursuant to Section 2.03(a) above must be effected
prior to the last Business Day that is within two years after the Closing
Date. As to any Deleted Mortgage Loan for which the Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, such substitution shall be
effected by the Seller delivering to the Trustee, for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
Assignment to the Trustee, and such other documents and agreements, with all
necessary endorsements thereon, as are required by Section 2.01 hereof,
together with an Officers' Certificate stating that each such Qualified
Substitute Mortgage Loan satisfies the definition thereof and specifying the
Substitution Adjustment (as described below), if any, in connection with such
substitution. The Trustee shall acknowledge receipt for such Qualified
Substitute Mortgage Loan or Loans and, within 30 days thereafter, shall review
such documents as specified in Section 2.01(i)-(v) hereof and deliver to the
Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a
certification substantially in the form attached hereto as Exhibit G-1, with
any exceptions noted thereon. Within one year of the date of substitution, the
Trustee shall deliver to the Servicer a certification substantially in the
form of Exhibit G-2 hereto with respect to such Qualified Substitute Mortgage
Loan or Loans, with any exceptions noted thereon. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution
are not part of the Trust Fund and will be retained by the Seller. For the
month of substitution, distributions to Certificateholders will reflect the
collections and recoveries in respect of such Deleted Mortgage Loan in the Due
Period preceding the month of substitution and the Depositor or the Seller, as
the case may be, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Seller
shall give or cause to be given written notice to the Certificateholders that
such substitution has taken place, shall amend the Mortgage Loan Schedule to
reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage Loan or
Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the
Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or
Loans shall constitute part of the Trust Fund and shall be subject in all
respects to the terms of this Agreement and, in the case of a substitution
effected by the Seller, the Mortgage Loan Purchase Agreement, including, in
the case of a substitution effected by the Seller all representations and
warranties thereof included in the Mortgage Loan Purchase Agreement and all
representations and warranties thereof set forth in Section 2.04 hereof, in
each case as of the date of substitution.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer
shall determine the amount (each, a "Substitution Adjustment"), if any, by
which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds
the aggregate, as to each such Qualified Substitute Mortgage Loan, of the
principal balance thereof as of the date of substitution, together with one
month's interest on such principal balance at the applicable Net Loan Rate. On
the date of such substitution, the Seller will deliver or cause to be
delivered to the Servicer for deposit in the Collection Account an amount
equal to the related Substitution Adjustment, if any, and the Trustee, upon
receipt of the related Qualified Substitute Mortgage Loan or Loans and
certification by the Servicer of such deposit, shall release to the Seller the
related Mortgage File or Files and shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, as the Seller shall
deliver to it and as shall be necessary to vest therein any Deleted Mortgage
Loan released pursuant hereto.
In addition, the Seller shall obtain at its own expense and deliver
to the Trustee an Opinion of Counsel to the effect that such substitution
(either specifically or as a class of transactions) will not cause (a) any
federal tax to be imposed on the Trust Fund, including without limitation, any
federal tax imposed on "prohibited transactions" under Section 860F(a)(l) of
the Code or on "contributions after the startup date" under Section 860G(d)(l)
of the Code, or (b) the Upper Tier REMIC or the Lower Tier REMIC to fail to
qualify as a REMIC at any time that any Certificate is outstanding. If such
Opinion of Counsel can not be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be given.
(e) Upon discovery by the Seller, 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 Seller shall repurchase or, subject to
the limitations set forth in Section 2.03(d), substitute one or more Qualified
Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the
earlier of discovery or receipt of such notice with respect to such affected
Mortgage Loan. Any such repurchase or substitution shall be made in the same
manner as set forth in Section 2.03(a) above, if made by the Seller. The
Trustee shall reconvey to the Seller the Mortgage Loan to be released pursuant
hereto in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty.
(f) The Seller hereby agrees that with respect to each Mortgage Loan
that converts from a variable Loan Rate to a fixed Loan Rate during any Due
Period pursuant to the terms of such Mortgage Loan, it will repurchase such
Mortgage Loan not later than the 5th day following the end of such Due Period
at a price equal to the Purchase Price on the date of such conversion. Amounts
in respect of such price shall be delivered to the Servicer for deposit to the
Collection Account.
Any amounts received as payment in respect of any such Mortgage Loan
repurchased pursuant to the preceding paragraph after the date of repurchase
(other than the amount referred to in the preceding paragraph), shall not be a
part of the Trust Fund and shall be paid by the Servicer to the Seller or, if
such amounts have been deposited into the Collection Account, shall be
withdrawn therefrom by the Servicer and paid by the Servicer to the Seller.
Promptly after the purchase referred to in this Section 2.03(f), the
Trustee shall execute such documents as are presented to it by the Servicer on
behalf of the Seller and are reasonably necessary to convey the purchased
Mortgage Loan to the Seller.
SECTION 2.04. Representations and Warranties of the Seller with
Respect to the Mortgage Loans.
The Seller hereby represents and warrants to the Trustee for the
benefit of the Certificateholders that, as of the Closing Date or as of such
other date specifically provided herein, the representations and warranties
made by the Seller pursuant to Section 3.01 of the Mortgage Loan Purchase
Agreement are hereby being made to the Trustee and are true and correct as of
the Closing Date.
With respect to the representations and warranties incorporated in
this Section 2.04 that are made to the best of the Seller's knowledge or as to
which the Seller has no knowledge, if it is discovered by the Depositor, the
Seller, the Servicer or the Trustee that the substance of such representation
and warranty is inaccurate and such inaccuracy materially and adversely
affects the value of the related Mortgage Loan or the interest therein of the
Certificateholders then, notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty being inaccurate
at the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
Within 90 days of its discovery or its receipt of notice of any such
missing or materially defective documentation or any such breach of a
representation or warranty, the Seller shall promptly deliver such missing
document or cure such defect or breach in all material respects or, in the
event such defect or breach cannot be cured, the Seller shall repurchase the
affected Mortgage Loan or cause the removal of such Mortgage Loan from the
Trust Fund and substitute for it one or more Qualified Substitute Mortgage
Loans, in either case, in accordance with Section 2.03 hereof.
It is understood and agreed that the representations and warranties
incorporated in this Section 2.04 shall survive delivery of the Mortgage Files
to the Trustee and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or assignment. Upon
discovery by any of the Depositor, the Servicer, the Seller or the Trustee of
a breach of any of the foregoing representations and warranties which
materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Certificateholders, the party discovering such breach
shall give prompt written notice to the other parties, and in no event later
than two Business Days from the date of such discovery. It is understood and
agreed that the obligations of the Seller set forth in Section 2.03(a) hereof
to cure, substitute for or repurchase a related Mortgage Loan pursuant to the
Mortgage Loan Purchase Agreement constitute the sole remedies available to the
Certificateholders or to the Trustee on their behalf respecting a breach of
the representations and warranties incorporated in this Section 2.04.
SECTION 2.05. Representations, Warranties and Covenants of the
Servicer.
The Servicer hereby represents, warrants and covenants to the
Trustee, for the benefit of each of the Trustee and 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 under the laws of the jurisdiction of its formation
and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing or is
exempt from such licensure, qualification or requirement of good
standing in the states where the Mortgaged Property is located if
the laws of such state require licensing or qualification in order
to conduct business of the type conducted by the Servicer or is a
condition to the enforceability or validity of each Mortgage Loan;
the Servicer has the power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement)
by the Servicer and the consummation of the transactions
contemplated hereby have been duly and validly authorized and are
part of its official records; this Agreement constitutes the valid,
binding and enforceable obligation of the Servicer, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or the rights of federally insured financial institutions;
and all requisite corporate action has been taken by the Servicer to
make this Agreement valid and binding upon the Servicer in
accordance with its terms;
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer and
will not result in the breach of any term or provision of the
charter or by-laws of the Servicer or result in the breach of any
term or provision of, or conflict with or constitute a default under
or result in the acceleration of any obligation under, any
agreement, indenture or loan or credit agreement or other instrument
to which the Servicer or its property is subject, or result in the
violation of any law, rule, regulation, order, judgment or decree to
which the Servicer or its property is subject;
(iii) The execution and delivery of this Agreement by the
Servicer and the performance and compliance with its obligations and
covenants hereunder do not require the consent or approval of any
governmental authority or, if such consent or approval is required,
it has been obtained;
(iv) This Agreement, and all documents and instruments
contemplated hereby which are executed and delivered by the
Servicer, constitute and will constitute valid, legal and binding
obligations of the Servicer, enforceable in accordance with their
respective terms, except as the enforcement thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally, or the rights of creditors of federally insured financial
institutions, and general principles of equity;
(v) [Reserved];
(vi) The Servicer does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(vii) There is no action, suit, proceeding or investigation
pending or, to its knowledge, threatened against the Servicer that,
either individually or in the aggregate, (A) could reasonably be
expected to prohibit or materially and adversely affect the
performance by the Servicer of its obligations under, or validity or
enforceability of, this Agreement, or (B) could reasonably be
expected to result in any material impairment of the right or
ability of the Servicer to carry on its business substantially as
now conducted, or (C) could reasonably be expected to result in any
material liability on the part of the Servicer, or (D) would draw
into question the validity or enforceability of this Agreement or of
any action taken or to be taken in connection with the obligations
of the Servicer contemplated herein, or (E) would otherwise be
likely to impair materially the ability of the Servicer to perform
under the terms of this Agreement; and
(viii) Neither this Agreement nor any information, certificate
of an officer, statement furnished in writing or report delivered to
the Trustee by the Servicer in connection with the transactions
contemplated hereby contains any untrue statement of a material
fact.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
Mortgage Files to the Trustee and shall inure to the benefit of the Trustee,
the Depositor and the Certificateholders. Upon discovery by any of the
Depositor, the Servicer, the Seller or the Trustee of a breach of any of the
foregoing representations, warranties and covenants which materially and
adversely affects the value of any Mortgage Loan or the interests therein of
the Certificateholders, the party discovering such breach shall give prompt
written notice (but in no event later than two Business Days following such
discovery) to the Depositor, the Servicer, the Seller and the Trustee.
SECTION 2.06. Representations and Warranties of the Depositor.
The Depositor represents and warrants to the Trust and the Trustee on
behalf of the Certificateholders as follows:
(i) this agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general an except as such
enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity);
(ii) immediately prior to the sale and assignment by the
Depositor to the Trustee on behalf of the Trust of each Mortgage
Loan, the Depositor had good and marketable title to each Mortgage
Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other
interest of any nature;
(iii) as of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on
behalf of the Trust;
(iv) the Depositor has not transferred the Mortgage Loans to
the Trustee on behalf of the Trust with any intent to hinder, delay
or defraud any of its creditors;
(v) the Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with full corporate power and authority to own its assets
and conduct its business as presently being conducted;
(vi) the Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is
a party or by which it or its properties may be bound, which default
might result in any material adverse changes in the financial
condition, earnings, affairs or business of the Depositor or which
might materially and adversely affect the properties or assets,
taken as a whole, of the Depositor;
(vii) the execution, delivery and performance of this Agreement
by the Depositor, and the consummation of the transactions
contemplated thereby, do not and will not result in a material
breach or violation of any of the terms or provisions of, or, to the
knowledge of the Depositor, constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party or by
which the Depositor is bound or to which any of the property or
assets of the Depositor is subject, nor will such actions result in
any violation of the provisions of the certificate of incorporation
or by-laws of the Depositor or, to the best of the Depositor's
knowledge without independent investigation, any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its properties
or assets (except for such conflicts, breaches, violations and
defaults as would not have a material adverse effect on the ability
of the Depositor to perform its obligations under this Agreement);
(viii) to the best of the Depositor's knowledge without any
independent investigation, no consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or
the consummation by the Depositor of the other transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, registrations or qualifications as (a) may be
required under State securities or "blue sky" laws, (b) have been
previously obtained or (c) the failure of which to obtain would not
have a material adverse effect on the performance by the Depositor
of its obligations under, or the validity or enforceability of, this
Agreement; and
(ix) there are no actions, proceedings or investigations
pending before or, to the Depositor's knowledge, threatened by any
court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the
subject: (a) which if determined adversely to the Depositor would
have a material adverse effect on the business, results of
operations or financial condition of the Depositor; (b) asserting
the invalidity of this Agreement or the Certificates; (c) seeking to
prevent the issuance of the Certificates or the consummation by the
Depositor of any of the transactions contemplated by this Agreement,
as the case may be; or (d) which might materially and adversely
affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement.
SECTION 2.07. Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery to it of the Mortgage Files, subject to the provisions of
Sections 2.01 and 2.02 hereof, together with the assignment to it of all other
assets included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such assignment and delivery and in exchange therefor, the
Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed, authenticated and delivered to or upon
the order of the Depositor, the Certificates in authorized denominations. The
interests evidenced by the Certificates constitute the entire beneficial
ownership interest in the Trust Fund.
SECTION 2.08. Representations and Warranties of the Seller.
The Seller hereby represents and warrants to the Trust and the
Trustee on behalf of the Certificateholders that as of the Closing Date or as
of such date specifically provided herein:
(i) The Seller is duly organized, validly existing and in good
standing and has the power and authority to own its assets and to
transact the business in which it is currently engaged. The Seller
is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by it
or properties owned or leased by it requires such qualification and
in which the failure to so qualify would have a material adverse
effect on (a) its business, properties, assets or condition
(financial or other), (b) the performance of its obligations under
this Agreement, (c) the value or marketability of the Mortgage
Loans, or (d) its ability to foreclose on the related Mortgaged
Properties to the extent such foreclosure is conducted by the
Servicer.
(ii) The Seller has the power and authority to make, execute,
deliver and perform this Agreement and to consummate all of the
transactions contemplated hereunder and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement which is part of its official records. When executed and
delivered, this Agreement will constitute the Seller's legal, valid
and binding obligations enforceable in accordance with its terms,
except as enforcement of such terms may be limited by (1)
bankruptcy, insolvency, reorganization, receivership, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and the rights of creditors of federally insured financial
institutions and by the availability of equitable remedies, (2)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (3) public policy
considerations underlying the securities laws, to the extent that
such policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide
indemnification from securities laws liabilities.
(iii) The Seller holds all necessary licenses, certificates and
permits from all governmental authorities necessary for conducting
its business as it is presently conducted. It is not required to
obtain the consent of any other party or any consent, license,
approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(iv) The execution, delivery and performance of this Agreement
by the Seller will not conflict with or result in a breach of, or
constitute a default under, any provision of any existing law or
regulation or any order or decree of any court applicable to the
Seller or any of its properties or any provision of its articles of
incorporation, charter or by-laws, or constitute a material breach
of, or result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to any mortgage,
indenture, contract or other agreement to which it is a party or by
which it may be bound.
(v) No certificate of an officer, written statement or written
report delivered pursuant to the terms hereof of the Seller contains
any untrue statement of a material fact or omits to state any
material fact necessary to make the certificate, statement or report
not misleading.
(vi) The transactions contemplated by this Agreement are in the
ordinary course of the Seller's business.
(vii) The Seller is not insolvent, nor will the Seller be made
insolvent by the transfer of the Mortgage Loans to the Depositor,
nor is the Seller aware of any pending insolvency of the Seller.
(viii) The Seller is not in violation of, and the execution and
delivery of this Agreement by the Seller and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court, or any
order or regulation of any federal, state, municipal or governmental
agency having jurisdiction, which violation would materially and
adversely affect the Seller's financial condition (financial or
otherwise) or operations, or materially and adversely affect the
performance of any of its duties hereunder.
(ix) There are no actions or proceedings against the Seller, or
pending or, to its knowledge, threatened, before any court,
administrative agency or other tribunal; nor, to the Seller's
knowledge, are there any investigations (i) that, if determined
adversely, would prohibit the Seller from entering into this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) that, if
determined adversely, would prohibit or materially and adversely
affect the Seller's ability to perform any of its respective
obligations under, or the validity or enforceability of, this
Agreement.
(x) The Seller did not transfer the Mortgage Loans to the
Depositor with any intent to hinder, delay or defraud any of its
creditors.
(xi) The Seller acquired title to the Mortgage Loans in good
faith, without notice of any adverse claims.
(xii) The transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by the Seller to the Depositor are not
subject to the bulk transfer laws or any similar statutory
provisions in effect in any applicable jurisdiction.
SECTION 2.09. Covenants of the Seller. The Seller hereby covenants
that, except for the transfer hereunder, the Seller will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any lien on any Mortgage Loan, or any interest therein; the
Seller will notify the Trustee, as assignee of the Depositor, and the Servicer
of the existence of any lien on any Mortgage Loan immediately upon discovery
thereof, and the Seller will defend the right, title and interest of the
Trust, as assignee of the Depositor, in, to and under the Mortgage Loans,
against all claims of third parties claiming through or under the Seller;
provided, however, that nothing in this Section 2.09 shall prevent or be
deemed to prohibit the Seller from suffering to exist upon any of the Mortgage
Loans any liens for municipal or other local taxes and other governmental
charges if such taxes or governmental charges shall not at the time be due and
payable or if the Seller shall currently be contesting the validity thereof in
good faith by appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer.
The Servicer shall service and administer each Mortgage Loan 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 such Mortgage Loan and, to
the extent consistent with such terms, in the same manner in which it services
and administers similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of mortgage lenders
and loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any Sub-Servicer, any
Servicer Affiliate or any Affiliate of any Sub-Servicer may have
with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Servicer Affiliate;
(iii) the Servicer's obligation to make Advances or Servicing
Advances; or
(iv) the Servicer's or any Sub-Servicer's right to receive
compensation for its services hereunder or with respect to any
particular transaction.
To the extent consistent with the foregoing, the Servicer shall seek
to maximize the timely and complete recovery of principal and interest on the
Mortgage Notes. Subject only to the above-described servicing standards and
the terms of this Agreement and of the Mortgage Loans, the Servicer shall have
full power and authority, acting alone or through Sub-Servicers as provided in
Section 3.02 hereof, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary
or desirable. Without limiting the generality of the foregoing, the Servicer
in its own name or in the name of a Sub-Servicer is hereby authorized and
empowered by the Trustee, when the Servicer believes it appropriate in its
best judgment in accordance with the servicing standards set forth above, to
execute and deliver, on behalf of the Certificateholders and the Trustee, and
upon notice to the Trustee, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans and the related
Mortgaged Properties and to institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of the
Trustee and Certificateholders. 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 hereof, the Trustee shall execute,
at the written request of the Servicer, and furnish to the Servicer and any
Sub-Servicer any special or limited powers of attorney and other documents
prepared by the Servicer and necessary or appropriate to enable the Servicer
or any Sub-Servicer to carry out their servicing and administrative duties
hereunder; provided, however, such limited powers of attorney or other
documents shall be prepared by the Servicer and submitted to the Trustee for
execution. The Trustee shall not be liable for the actions of the Servicer or
any Sub-Servicer under such powers of attorney.
Subject to Section 3.09 hereof, in accordance with the standards of
the preceding paragraph, the Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes
and assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11
hereof. Any cost incurred by the Servicer or by any Sub-Servicer in effecting
the timely payment of taxes and assessments on a Mortgaged Property shall not,
for the purpose of calculating distributions to Certificateholders, be added
to the unpaid Principal Balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit.
Notwithstanding anything in this Agreement to the contrary, Servicer
may not make any future advances with respect to a Mortgage Loan and shall not
(i) permit any modification with respect to any Mortgage Loan that would
change the Loan Rate, reduce or increase the Principal Balance (except for
reductions resulting from actual payments of principal) or change the final
maturity date on such Mortgage Loan (unless, as provided in Section 3.07
hereof, the Mortgagor is in default with respect to the Mortgage Loan or such
default is, in the judgment of the Servicer, reasonably foreseeable) or (ii)
permit any modification, waiver or amendment of any term of any Mortgage Loan
that would both (A) effect an exchange or reissuance of such Mortgage Loan
under Section 1001 of the Code (or Treasury regulations promulgated
thereunder) and (B) cause the Upper Tier REMIC or the Lower Tier REMIC to fail
to qualify as a REMIC under the Code or the imposition of any tax on
"prohibited transactions" or "contributions after the startup date" under the
REMIC Provisions.
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.
(a) The Servicer may enter into Sub-Servicing Agreements with
Sub-Servicers for the servicing and administration of the Mortgage Loans;
provided, however, that such agreements would not result in a withdrawal or a
downgrading by the Rating Agencies of the rating on any Class of Certificates.
Each Sub-Servicer shall be (i) authorized to transact business in the
state or states where the Mortgaged Properties it is to service are situated,
if and to the extent required by applicable law to enable the Sub-Servicer to
perform its obligations hereunder and under the Sub-Servicing Agreement and
(ii) a mortgage servicer approved by Fannie Mae or Freddie Mac. Each
Sub-Servicing Agreement must impose on the Sub-Servicer requirements
conforming to the provisions set forth in Section 3.08 hereof and provide for
servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Servicer will examine each Sub-Servicing Agreement and will be familiar
with the terms thereof. The terms of any Sub-Servicing Agreement will not be
inconsistent with any of the provisions of this Agreement. The Servicer and
the Sub-Servicers may enter into and make amendments to the related
Sub-Servicing Agreements or enter into different forms of Sub-Servicing
Agreements; provided, however, that any such amendments or different forms
shall be consistent with and not violate the provisions of this Agreement, and
that no such amendment or different form shall be made or entered into which
could be reasonably expected to be materially adverse to the interests of the
Certificateholders without the consent of the Holders of Certificates entitled
to at least 66% of the Voting Rights; provided, further, that the consent of
the Holders of Certificates entitled to at least 66% of the Voting Rights
shall not be required (i) to cure any ambiguity or defect in a Sub-Servicing
Agreement, (ii) to correct, modify or supplement any provisions of a
Sub-Servicing Agreement, or (iii) to make any other provisions with respect to
matters or questions arising under a Sub-Servicing Agreement, which, in each
case, shall not be inconsistent with the provisions of this Agreement. Any
variation without the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights from the provisions set forth in Section 3.08
hereof relating to insurance or priority requirements of the Sub-Servicing
Account, or credits and charges to the Sub-Servicing Account or the timing and
amount of remittances by a Sub-Servicer to the Servicer, are conclusively
deemed to be inconsistent with this Agreement and therefore prohibited. The
Servicer shall deliver to the Trustee copies of all of its Sub-Servicing
Agreements, and any amendments or modifications thereof, promptly upon the
Servicer's execution and delivery of such instruments.
(b) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee and the Certificateholders, shall enforce the
obligations of each Sub-Servicer under the Sub-Servicing Agreement including,
without limitation, any obligation to make advances in respect of delinquent
payments as required by a Sub-Servicing Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements, and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor only (i) from
a general recovery resulting from such enforcement, to the extent, if any,
that such recovery exceeds all amounts due in respect of the related Mortgage
Loans, or (ii) from a specific recovery of costs, expenses or attorneys' fees
against the party against whom such enforcement is directed.
SECTION 3.03. Successor Sub-Servicers.
The Servicer shall be entitled to terminate any of the Sub-Servicing
Agreements and the rights and obligations of any Sub-Servicer pursuant to any
of the Sub-Servicing Agreements in accordance with the terms and conditions of
such Sub-Servicing Agreement. In the event of termination of any Sub-Servicer,
all servicing obligations of such Sub-Servicer shall be assumed simultaneously
by the Servicer without any act or deed on the part of such Sub-Servicer or
the Servicer, and the Servicer either shall service directly the related
Mortgage Loans or shall enter into a Sub-Servicing Agreement with a successor
Sub-Servicer which qualifies under Section 3.02 hereof.
Any Sub-Servicing Agreement shall include the provision that such
agreement may be immediately terminated by the Servicer or the Trustee (if the
Trustee is acting as successor Servicer) without fee, in accordance with the
terms of this Agreement, in the event that the Servicer (or the Trustee, if
such party is then acting as successor Servicer) shall, for any reason, no
longer be a Servicer (including termination due to a Servicer Event of
Termination).
SECTION 3.04. Liability of the Servicer.
Notwithstanding any Sub-Servicing Agreement or the provisions of this
Agreement relating to agreements or arrangements between the Servicer and a
Sub-Servicer or reference to actions taken through a Sub-Servicer or
otherwise, the Servicer shall remain obligated and primarily liable to the
Trustee and the Certificateholders for the servicing and administering of the
Mortgage Loans in accordance with the provisions of Section 3.01 hereof,
without diminution of such obligation or liability by virtue of any such
Sub-Servicing Agreements or arrangements or by virtue of indemnification from
the Sub-Servicer, and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the
Mortgage Loans. The Servicer shall be entitled to enter into any agreement
with a Sub-Servicer for indemnification of the Servicer by such Sub-Servicer
and nothing contained in this Agreement shall be deemed to limit or modify
such indemnification.
SECTION 3.05. No Contractual Relationship Between Sub-Servicers and
the Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to any Mortgage Loans involving a
Sub-Servicer in its capacity as such shall be deemed to be between the
Sub-Servicer and the Servicer alone, and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to the
Sub-Servicer except as set forth in Section 3.06 hereof. The Servicer shall be
solely liable for all fees owed by it to any of its Sub-Servicers,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements
by Trustee.
In the event that the Servicer shall for any reason no longer be the
Servicer (including by reason of the occurrence of a Servicer Event of
Termination), the Trustee, in its capacity as successor Servicer, shall
thereupon assume all of the rights and obligations of the Servicer under each
Sub-Servicing Agreement into which the Servicer may have entered, unless the
Trustee, in its capacity as successor Servicer, elects to terminate any such
Sub-Servicing Agreement in accordance with its terms as provided in Section
3.03 hereof. Upon such assumption, the successor Servicer shall be deemed,
subject to Section 3.03, to have assumed all of the departing Servicer's
interest therein and to have replaced the departing Servicer as a party to
each related Sub-Servicing Agreement to the same extent as if each such
Sub-Servicing Agreement had been assigned to the assuming party, except that
(i) the departing Servicer shall not thereby be relieved of any liability or
obligations under any related Sub-Servicing Agreement that arose before it
ceased to be the Servicer and (ii) no successor Servicer shall be deemed to
have assumed any liability or obligation of the departing Servicer that arose
before it ceased to be the Servicer.
The Servicer at its expense shall deliver to the assuming party all
documents and records relating to each of its Sub-Servicing Agreements and the
related Mortgage Loans then being serviced and an accounting of amounts
collected and held by or on behalf of it, and otherwise use its best efforts
to effect the orderly and efficient transfer of such Sub-Servicing Agreements
to the assuming party.
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the related Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement
and the terms and provisions of any applicable insurance policies, follow such
collection procedures as it would follow with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Consistent with
the foregoing, the Servicer may in its discretion (i) waive any late payment
charge or, if applicable, any penalty interest, or (ii) extend the due dates
for the Monthly Payments due on a Mortgage Note for a period of not greater
than 180 days; provided, however, that any extension pursuant to clause (ii)
above shall not affect the amortization schedule of any Mortgage Loan for
purposes of any computation hereunder, except as provided below. In the event
of any such arrangement pursuant to clause (ii) above, the Servicer shall make
timely advances on such Mortgage Loan during such extension pursuant to
Section 4.04 hereof and in accordance with the amortization schedule of such
Mortgage Loan without modification thereof by reason of such arrangement.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in
default or, in the judgment of the Servicer, such default is reasonably
foreseeable, the Servicer, consistent with the standards set forth in Section
3.01 hereof, may also waive, modify or vary any term of such Mortgage Loan
(including modifications that would change the Loan Rate, adjust the Principal
Balance and Monthly Payment in order to capitalize certain arrearages, forgive
the payment of principal or interest or extend the final maturity date of such
Mortgage Loan), accept payment from the related Mortgagor of an amount less
than the Stated Principal Balance in final satisfaction of such Mortgage Loan,
or consent to the postponement of strict compliance with any such term or
otherwise grant indulgence to any Mortgagor (any and all such waivers,
modifications, variances, forgiveness of principal or interest, postponements,
or indulgences collectively referred to herein as "forbearance"); provided,
however, that in no event shall the Servicer grant any such forbearance (other
than as permitted by the second sentence of this Section) with respect to any
one Mortgage Loan more than once in any 12-month period or more than three
times over the life of such Mortgage Loan. The Servicer's analysis supporting
any forbearance and the conclusion that any forbearance meets the standards of
Section 3.01 hereof (including the standard that such forbearance will
maximize the timely and complete recovery of principal and interest on the
Mortgage Notes) shall be reflected in writing in the related Mortgage File.
SECTION 3.08. Sub-Servicing Account.
In those cases where a Sub-Servicer is servicing a Mortgage Loan
pursuant to a Sub-Servicing Agreement, the Sub-Servicer will be required to
establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
comply with all requirements of this Agreement relating to the Collection
Account. The Sub-Servicer shall deposit in the clearing account in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Sub-Servicer's receipt thereof, all
proceeds of Mortgage Loans received by the Sub-Servicer less its servicing
compensation to the extent permitted by the Sub-Servicing Agreement, and shall
thereafter deposit such amounts in the Sub-Servicing Account, in no event more
than two Business Days after the receipt of such amounts. The Sub-Servicer
shall thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the Servicer for deposit in the Collection Account not later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on the related Mortgage Loans when its Sub-Servicer receives
such payments.
SECTION 3.09. Collection of Taxes, Assessments and Similar Items;
Servicing Account.
The Servicer shall establish and maintain, or cause to be established
and maintained, one or more accounts (collectively, the "Servicing Account"),
into which all Escrow Payments collected on account of the Mortgage Loans
shall be deposited and retained. The Servicing Account shall be an Eligible
Account. The Servicer shall deposit in the clearing account in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Servicer's receipt thereof, all Escrow
Payments collected on account of the Mortgage Loans and shall thereafter
deposit such Escrow Payments in the Servicing Account, in no event more than
two Business Days after the receipt of such Escrow Payments, 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 payment of taxes, assessments, hazard insurance premiums,
and comparable items in a manner and at a time that assures that the lien
priority of the Mortgage is not jeopardized (or, with respect to the payment
of taxes, in a manner and at a time that avoids the loss of the Mortgaged
Property due to a tax sale or the foreclosure as a result of a tax lien); (ii)
reimburse the Servicer (or a Sub-Servicer to the extent provided in the
related Sub-Servicing Agreement) out of related collections for any Servicing
Advances made pursuant to Section 3.01 hereof (with respect to taxes and
assessments) and Section 3.14 hereof (with respect to hazard insurance); (iii)
refund to Mortgagors any sums as may be determined to be overages; (iv) pay
interest, if required and as described below, to Mortgagors on balances in the
Servicing Account; or (v) clear and terminate the Servicing Account at the
termination of the Servicer's obligations and responsibilities in respect of
the Mortgage Loans under this Agreement in accordance with Article X hereof.
The Servicer will be responsible for the administration of the Servicing
Account and will be obligated to make Servicing Advances to such accounts when
and as necessary to avoid the lapse of insurance coverage on the Mortgaged
Property, or which the Servicer knows, or in the exercise of the required
standard of care of the Servicer hereunder should know, is necessary to avoid
the loss of the Mortgaged Property due to a tax sale or the foreclosure as a
result of a tax lien. If any such payment has not been made and the Servicer
receives notice of a tax lien with respect to the Mortgage being imposed, the
Servicer will, within ten business days of such notice, advance or cause to be
advanced funds necessary to discharge such lien on the Mortgaged Property. As
part of its servicing duties, the Servicer or any Sub-Servicers shall pay to
the Mortgagors interest on funds in the related Servicing Account, to the
extent required by law and, to the extent that interest earned on funds in
such Servicing Account is insufficient, to pay such interest from its or their
own funds, without any reimbursement therefor.
SECTION 3.10. Collection Account and Distribution Account.
(a) On behalf of the Trust Fund, the Servicer shall establish and
maintain, or cause to be established and maintained, one or more accounts
(collectively, the "Collection Account"), held in trust for the benefit of the
Trustee and the Certificateholders. The Servicer shall deposit into the
Collection Account, no later than two Business Days following the Closing
Date, any amounts representing payments of principal due in respect of the
Mortgage Loans after the Cut-Off Date and received by the Servicer prior to
the Closing Date and any amounts representing payments of interest due in
respect of the Mortgage Loans after the Cut-Off Date and received by the
Servicer prior to the Closing Date. Thereafter, on behalf of the Trust Fund,
the Servicer shall deposit or cause to be deposited in the clearing account in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and
in no event more than one Business Day after the Servicer's receipt thereof,
and shall thereafter deposit in the Collection Account, in no event more than
two Business Days after the Servicer's receipt thereof, as and when received
or as otherwise required hereunder, the following payments and collections
received or made by it subsequent to the Cut-Off Date (other than in respect
of principal or interest on the Mortgage Loans due on or before the Cut-Off
Date) or payments (other than Principal Prepayments) received by it on or
prior to the Cut-Off Date but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments on the 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 in connection with a purchase of Mortgage Loans and
REO Properties pursuant to Section 10.01 hereof);
(iv) any amounts required to be deposited pursuant to Section
3.12 hereof in connection with any losses realized on Permitted
Investments with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer
pursuant to the second paragraph of Section 3.14(a) hereof in
respect of any blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased
in accordance with Section 2.03 or Section 10.01 hereof;
(vii) all amounts required to be deposited in connection with
Substitution Adjustments pursuant to Section 2.03 hereof;
(viii) any Advances in respect of Mortgage Loans, as required
pursuant to Section 4.05 hereof; and
(ix) any amounts to be paid in connection with a purchase of
Mortgage Loans and REO Properties pursuant to Section 3.16(c)
hereof.
The foregoing requirements for deposit in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
assumption fees, insufficient funds charges, prepayment premiums or other
ancillary income, with respect to any Mortgage Loan, need not be deposited by
the Servicer in the Collection Account and may be retained by the Servicer as
additional compensation. In the event that 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 (collectively, the "Distribution Account"), held
in trust for the benefit of the Trustee and 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 the Close
of Business in the City of New York on the Servicer Remittance Date, that
portion of the Available Funds (calculated without regard to the references in
the definition thereof to amounts that may be withdrawn from the Distribution
Account) for the related Distribution Date then on deposit in the Collection
Account.
(c) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12
hereof. The Servicer shall give notice to the Trustee of the location of the
Collection Account 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 to the Trustee for deposit in an account (which may be the
Distribution Account and must satisfy the standards for the Distribution
Account as set forth in the definition thereof) and for all purposes of this
Agreement shall be deemed to be a part of the Collection Account; provided,
however, that the Trustee shall have the sole authority to withdraw any funds
held in the Distribution Account pursuant to this subsection (d). In the event
that 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 the Servicer any such amount, any provision herein to the
contrary notwithstanding. In addition, the Servicer, with respect to items (i)
through (iii) below, shall deliver to the Trustee from time to time for
deposit, and the Trustee, with respect to items (i) through (iii) below, shall
so deposit, in the Distribution Account:
(i) any amounts required to be deposited pursuant to Section
3.23(d) or (f) hereof in connection with any REO Property;
(ii) any amounts to be paid in connection with a purchase of
Mortgage Loans and REO Properties pursuant to Section 10.01 hereof;
and
(iii) any Compensating Interest to be deposited pursuant to
Section 3.24 hereof in connection with any Prepayment Interest
Shortfall in respect of any Mortgage Loans.
(e) The Servicer shall deposit in the Collection Account any amounts
required to be deposited pursuant to Section 3.12(b) hereof in connection with
losses realized on Permitted Investments with respect to funds held in the
Collection Account.
SECTION 3.11. Withdrawals from the Collection Account and
Distribution Account.
(a) The Servicer shall, from time to time, make withdrawals from the
Collection Account for any of the following purposes or as described in
Section 4.05 hereof:
(i) to remit to the Trustee for deposit in the Distribution
Account the amounts required to be so remitted pursuant to Section
3.10(b) hereof or permitted to be so remitted pursuant to the first
sentence of Section 3.10(d) hereof;
(ii) subject to Section 3.16(d) hereof, to reimburse 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, Liquidation Proceeds and Insurance Proceeds on
Mortgage Loans with respect to which such Advances were made in
accordance with the provisions of Section 4.05;
(iii) subject to Section 3.16(d), to pay the Servicer or any
Sub-Servicer (a) any unpaid Servicing Fees, (b) any unreimbursed
Servicing Advances with respect to each Mortgage Loan, but only to
the extent of any Late Collections, Liquidation Proceeds and
Insurance Proceeds received with respect to such Mortgage Loan, and
(c) any Servicing Advances with respect to the final liquidation of
a Mortgage Loan that are Nonrecoverable Advances, but only to the
extent that Late Collections, Liquidation Proceeds and Insurance
Proceeds received with respect to such Mortgage Loan are
insufficient to reimburse the Servicer or any Sub-Servicer for
Servicing Advances;
(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 or the Seller, as applicable, with
respect to each Mortgage Loan that has previously been purchased or
replaced pursuant to Section 2.03 or Section 3.16(c) hereof all
amounts received thereon subsequent to the date of purchase or
substitution, as the case may be;
(vi) to reimburse the Servicer for any Advance previously made
by it which the Servicer has determined to be a Nonrecoverable
Advance in accordance with the provisions of Section 4.05;
(vii) to pay or to reimburse the Servicer for Servicing
Advances made by it in respect of expenses incurred in connection
with any Mortgage Loan pursuant to Section 3.16(b) hereof;
(viii) to pay or reimburse the Seller and the Trustee pursuant
to Section 9.01(c) and 9.01(f), respectively,
(ix) to pay the Trustee the amounts payable to it pursuant to
Section 8.05, and
(x) to clear and terminate the Collection Account pursuant to
Section 10.01 hereof.
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) and (vii) 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 subclause (vi) above; provided, however, that
an Officers' Certificate in the form described under Section 4.05(d) shall
suffice for such written notification to the Trustee in respect hereof.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account, for any of the following purposes, without priority:
(i) to make distributions in accordance with Section 4.01
hereof;
(ii) to pay any amounts in respect of taxes pursuant to Section
9.01(g) hereof; and
(iii) to clear and terminate the Distribution Account pursuant
to Section 10.01 hereof.
SECTION 3.12. Investment of Funds in the Collection Account.
(a) The Servicer may direct any depository institution maintaining
the Collection Account (each, for purposes of this Section 3.12, an
"Investment Account"), to invest the funds in each Investment Account in one
or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, unless such funds are invested in
Permitted Investments managed or advised by the Trustee or one of its
Affiliates, in which case such Permitted Investments may mature on the date on
which such funds are required to be withdrawn from such account pursuant to
this Agreement. Funds in the Distribution Account may be held uninvested. All
such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee (in its capacity as such), or in the name of a nominee of
the Trustee. The Trustee may be entitled to sole possession or control (except
with respect to investment direction of funds held in the Collection Account
and any income and gain realized thereon) over each such investment, and any
certificate, securities entitlement or other instrument evidencing any such
investment shall be delivered directly to the Trustee or its agent, together
with any document of transfer necessary to transfer title to such investment
to the Trustee or its nominee. In the event amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable
on demand, the Servicer shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (A) all amounts then payable thereunder and (B) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by a Responsible Officer of the Trustee that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and any REO Account held by or on behalf
of the Servicer shall be for the benefit of the Servicer and shall be subject
to its withdrawal in accordance with Section 3.11 or Section 3.23 hereof, as
applicable. The Servicer shall deposit in the Collection Account or any REO
Account, as applicable, the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All benefit derived from funds deposited in the Distribution
Account shall be for the benefit of the Trustee.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.01 and Section 8.02(e),
upon the request of the Holders of Certificates representing more than 50% of
the Voting Rights allocated to any Class of Certificates, shall take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate proceedings.
SECTION 3.13. [Reserved].
SECTION 3.14. Maintenance of Hazard Insurance Policies, Primary
Insurance Policies and Errors and Omissions and Fidelity Coverage.
(a) The Servicer shall cause to be maintained, for each Mortgage
Loan, fire insurance with extended coverage on all buildings upon the
Mortgaged Property in an amount which is at least equal to the lesser of the
current Principal Balance of such Mortgage Loan and the amount necessary to
fully compensate for any damage or loss to the improvements that are a part of
such property on a replacement cost basis, in each case in an amount not less
than such amount as is necessary to avoid the application of any coinsurance
clause contained in the related hazard insurance policy. The Servicer shall
also cause to be maintained fire insurance with extended coverage on each REO
Property in an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements which are a part of such property and (ii)
the outstanding Principal Balance of the related Mortgage Loan at the time it
became an REO Property. 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 hereof,
if received in respect of a Mortgage Loan, or in the related REO Account,
subject to withdrawal pursuant to Section 3.23 hereof, if received in respect
of an REO Property. Any cost incurred by the Servicer in maintaining any such
insurance in respect of a Mortgage Loan shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
Principal Balance of such Mortgage Loan, notwithstanding that the terms of
such Mortgage Loan so permit. It is understood and agreed that no earthquake
or other additional insurance is to be required of any Mortgagor other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged
Property or REO Property is at any time in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards and flood insurance has been made available, the Servicer will cause
to be maintained a flood insurance policy in respect thereof. Such flood
insurance shall be in an amount equal to the lesser of (i) the unpaid
Principal Balance of the related Mortgage Loan and (ii) the maximum amount of
such insurance available for the related Mortgaged Property under the national
flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program).
If a Mortgage is secured by a unit in a condominium, the Servicer
shall have received a certificate of insurance evidencing a master policy held
by the owner's association and naming the Servicer as loss payee. All policies
required hereunder shall name the Servicer as loss payee and shall be endorsed
with standard mortgage clauses, which shall provide for at least 30 days'
prior written notice of any cancellation, reduction in amount or material
change in coverage. The Servicer shall not interfere with a Mortgagor's
freedom of choice in selecting an insurance carrier or agent; provided,
however, that Servicer shall not accept any such insurance policies from
insurance companies unless such companies satisfy the requirements of Fannie
Mae or Freddie Mac and are licensed to do business in the jurisdiction in
which the related Mortgaged Property is located. Any amounts collected by the
Servicer under any such policies (other than the amounts to be deposited in
the Escrow Account and to be applied to the restoration or repair of the
related Mortgaged Property) or property acquired in liquidation of the
Mortgage Loan, or amounts released to the Mortgagor in accordance with the
Servicer's normal servicing procedures) shall be deposited in the Collection
Account. Any cost incurred by the Servicer in maintaining any such insurance
in respect of a Mortgage Loan shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to the Trustee
for their benefit, be added to the Principal Balance of such Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. Such costs
shall be recoverable by the Servicer out of late payments by the related
Mortgagor or out of Liquidation Proceeds to the extent permitted by Section
3.10 hereof. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer having a General Policy Rating of A+ or better in
Best's Key Rating Guide (or such other rating that is comparable to such
rating) insuring against hazard losses on all of the Mortgage Loans, the
Servicer shall conclusively be deemed to have satisfied its obligations as set
forth in the first two sentences of the first two paragraphs of this Section
3.14, it being understood and agreed that such policy may contain a deductible
clause, in which case the Servicer shall, in the event that there shall not
have been maintained on the Mortgaged Properties or REO Properties 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 not take any action which would result in
non-coverage under any applicable Primary Insurance Policy of any loss which,
but for the actions of the Servicer, would have been covered thereunder. The
Servicer shall not cancel or refuse to renew any such Primary Insurance Policy
that is in effect at the date of the initial issuance of the Certificates and
is required to be kept in force hereunder unless the replacement Primary
Insurance Policy for such canceled or non-renewed policy is maintained with a
Qualified Insurer.
The Servicer shall not be required to maintain any Primary Insurance
Policy (i) with respect to any Mortgage Loan with a Loan-to-Value Ratio less
than or equal to 80% as of any date of determination or, based on a new
appraisal, if the Principal Balance of such Mortgage Loan represents 80% or
less of the new appraised value, (ii) if maintaining such Primary Insurance
Policy is prohibited by applicable law, or (iii) if such Mortgage Loan did not
have a Primary Insurance Policy at origination.
The Servicer agrees to effect the timely payment of the premiums on
each Primary Insurance Policy, and such costs not otherwise recoverable shall
be recoverable by the Servicer from the related Liquidation Proceeds.
(c) In connection with its activities as Servicer of the Mortgage
Loans, the Servicer agrees to present on behalf of itself, the Trustee and
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take such reasonable action as shall be necessary to
permit recovery under any Primary Insurance Policies respecting defaulted
Mortgage Loans. Any amounts collected by the Servicer under any Primary
Insurance Policies shall be deposited in the Collection Account.
(d) 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 the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Fannie Mae or Freddie Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from Fannie Mae or Freddie Mac. The Servicer shall also maintain a fidelity
bond in the form and amount that would meet the requirements of Fannie Mae or
Freddie Mac, unless the Servicer has obtained a waiver of such requirements
from Fannie Mae or Freddie Mac. The Servicer shall be deemed to have complied
with this provision if a Servicer Affiliate 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. The
Servicer shall also cause each Sub-Servicer to maintain a policy of insurance
covering errors and omissions and a fidelity bond which would meet such
requirements.
SECTION 3.15. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
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 be required to take such action if in its
sole business judgment the Servicer believes it is not in the best interests
of the Trust Fund and shall not exercise any such rights if prohibited by law
from doing so. If 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 underwriting
criteria of the Servicer and has a credit risk rating at least equal to that
of the original Mortgagor. 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, modification or substitution of liability
agreement shall 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 Loan 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, modification or assumption agreement has been
completed by forwarding to the Trustee the executed original of such
substitution, modification or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered
a part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, 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 related 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, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans (including selling
any such Mortgage Loans other than converting the ownership of the related
properties) as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07 hereof. 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 as
contemplated in Section 3.11 and Section 3.23 hereof. The foregoing is subject
to the provision that, in any case in which Mortgaged Property shall have
suffered damage from an Uninsured Cause, the 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, the Trust Fund or the Certificateholders would be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
from time to time, or any comparable law, unless the Servicer has also
previously determined, based on its reasonable judgment and a report prepared
by a Person who regularly conducts environmental audits using customary
industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any
hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or regulation, or that if any
such materials are present for which such action could be required,
that it would be in the best economic interest of the Trust Fund to
take such actions with respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by this
Section 3.16 shall be advanced by the Servicer, subject to the Servicer's
right to be reimbursed therefor from the Collection Account as provided in
Section 3.11(a)(vii) above, such right of reimbursement being prior to the
rights of Certificateholders to receive any amount in 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 the Trust Fund; provided that any amounts disbursed
by the Servicer pursuant to this Section 3.16(b) shall constitute Servicing
Advances, subject to Section 4.05(d) hereof. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Servicer, subject
to the Servicer's right to be reimbursed therefor from the Collection Account
as provided in Section 3.11(a)(iii) and (a)(vii) hereof, such right of
reimbursement being prior to the rights of Certificateholders to receive any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
(c) The Servicer may, at its option, purchase any Mortgage Loan or
related REO Property that is 90 days or more Delinquent, which the Servicer
determines in good faith will otherwise become subject to foreclosure
proceedings (evidence of such determination to be delivered in writing to the
Trustee prior to purchase), at a price equal to the Purchase Price; provided,
however, that the Servicer shall purchase any such Mortgage Loans or related
REO Properties on the basis of delinquency, purchasing the most delinquent
Mortgage Loans or related REO Properties first. The Purchase Price for any
Mortgage Loan or related REO Property purchased hereunder shall be deposited
in the Collection Account. The Trustee, upon receipt of such deposit, shall
release or cause to be released to the Servicer 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 it title to any Mortgage Loan or related REO Property released
pursuant hereto.
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds or Liquidation Proceeds, in respect of any Mortgage Loan,
will be applied in the following order of priority: first, to reimburse the
Servicer or any Sub-Servicer for any unreimbursed Servicing Advances and
Advances, pursuant to Section 3.11(a)(ii) or (a)(iii) hereof; second, to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than the
full amount of accrued and unpaid interest due on such Mortgage Loan, the
amount of such recovery will be allocated by the Servicer as follows: first,
to unpaid Servicing Fees; and second, to the balance of the interest then due
and owing. The portion of the recovery so allocated to unpaid Servicing Fees
shall be reimbursed to the Servicer or any Sub-Servicer pursuant to Section
3.11(a)(iii).
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Servicer shall deliver to the Trustee
two executed copies of a Request for Release in the form of Exhibit F (which
shall include a certification to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Collection Account pursuant to Section 3.10 hereof 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, within five Business Days, release and send the related Mortgage File
to the Servicer by overnight mail, at the expense of 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.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection
under any insurance policy relating to the Mortgage Loans, the Trustee shall,
upon any request made by or on behalf of the Servicer and delivery to the
Trustee of two copies of a Request for Release in the form of Exhibit F,
release the related Mortgage File to 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, or caused to be delivered, to
the Trustee two copies of an additional Request for Release certifying as to
such liquidation or action or proceedings. Upon the request of the Trustee,
the Servicer shall provide notice to the Trustee of the name and address of
the Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that
are required to be deposited into the Collection Account have been so
deposited, or that such Mortgage Loan has become an REO Property, any
outstanding Requests for Release with respect to such Mortgage Loan shall be
released by the Trustee to the Servicer or its designee.
(c) Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the Servicer or any Sub-Servicer, as the case may
be, copies of, any court pleadings, requests for trustee's sale or other
documents prepared by the Servicer and necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action
brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or rights provided by the Mortgage Note or Mortgage or otherwise available at
law or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the
lien of the Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale.
(d) Each Request for Release delivered to the Trustee hereunder shall
be signed by a Servicing Officer or shall be delivered in a mutually agreed
upon electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer.
SECTION 3.18. Servicing Compensation.
As compensation for its activities hereunder, the Servicer shall be
entitled to the Servicing Fee with respect to each Mortgage Loan payable
solely from payments of interest in respect of the Mortgage Loans; provided,
however, that the Servicing Fee shall be reduced with respect to each
Distribution Date, by an amount equal generally to the aggregate of the
Prepayment Interest Shortfalls, if any, with respect to the Mortgage Loans
serviced by the Servicer and such Distribution Date, but the aggregate
reductions shall not exceed an amount equal to the Compensating Interest Cap
for such Distribution Date before reduction thereof in respect of such
Prepayment Interest Shortfalls as further set forth in Section 3.24 hereof.
Additional servicing compensation in the form of late payment
charges, assumption fees, insufficient funds charges, prepayment premiums or
other ancillary income shall be retained by the Servicer only to the extent
such fees or charges are received by the Servicer. The Servicer shall also be
entitled pursuant to Section 3.11(a)(iv) hereof to withdraw from the
Collection Account and, pursuant to Section 3.23(b) hereof, to withdraw from
any REO Account, as additional servicing compensation, interest or other
income earned on deposits therein, subject to Section 3.12 and Section 3.24
hereof. 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 20 days after each Distribution Date, the Servicer
shall forward, upon request, to the Trustee and the Depositor the most current
available bank statement for the Collection Account. Copies of such statement
shall be provided by the Trustee to any Certificateholder and to any Person
identified to the Trustee as a prospective transferee of a Certificate, upon
request at the expense of the requesting party, provided such statement is
delivered by the Servicer to the Trustee.
SECTION 3.20. Statement as to Compliance.
The Servicer shall deliver to the Trustee and the Depositor not later
than 90 days following the end of the fiscal year of the Servicer (which is
the calendar year), commencing with the fiscal year that begins in 2001, 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 Accountant's Servicing Report.
Not later than 90 days following the end of each fiscal year of the
Servicer, commencing with the fiscal year that begins in 2001, the Servicer at
its own 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 that 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. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted
in accordance with the same standards (rendered within one year of such
report) with respect to those Sub-Servicers. Copies of such statement shall be
provided by the Trustee to any Certificateholder upon request at the expense
of the Servicer provided that such statement is delivered by the Servicer to
the Trustee.
SECTION 3.22. Access to Certain Documentation; Filing of Reports by
Trustee.
(a) 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; provided that, in the case of a Certificateholder or a
Person identified to the Servicer as a prospective transferee of a
Certificate, the Servicer may, as a condition to making any such information
available, require that such Certificateholder or Person execute a
confidentiality agreement in a form acceptable to the Servicer.
(b) Within 15 days after each Distribution Date, the Trustee shall,
in accordance with industry standards, file with the Commission, via the
Electronic Data Gathering and Retrieval System (EDGAR), a Form 8-K with a copy
of the statement to the Certificateholders for such Distribution Date as an
exhibit thereto. The Trustee shall, in accordance with industry standards,
file a Form 15 Suspension Notification with respect to the Trust Fund, if
applicable. The Trustee shall file a Form 10-K, in substance conforming to
industry standards, with respect to the Trust Fund. The Depositor hereby
grants to the Trustee a limited power of attorney to execute and file each
such document on behalf of the Depositor. Such power of attorney shall
continue until either the earlier of (i) receipt by the Trustee from the
Depositor of written termination of such power of attorney and (ii) the
termination of the Trust Fund. The Depositor and the Servicer agree to furnish
to the Trustee promptly, from time to time upon request, such further
information, reports, and financial statements within its control related to
this Agreement and the Mortgage Loans as the Trustee reasonably deems
appropriate to prepare and file all necessary reports with the Commission. The
Trustee shall have no responsibility to file any items other than those
specified in this section.
SECTION 3.23. Title, Management and Disposition of REO Property.
(a) The deed or certificate of sale of any REO Property shall be
taken in the name of the Trustee, or its nominee, in trust for the benefit of
the Certificateholders. The Servicer, on behalf of the Lower Tier REMIC, shall
either sell any REO Property by the end of the third full taxable year after
the taxable year in which the REMIC acquires ownership of such REO Property
for purposes of Section 860G(a)(8) of the Code or request from the Internal
Revenue Service, no later than 61 days before the day on which the three-year
grace period would otherwise expire, an extension of such three-year period,
unless the Servicer shall have delivered to the Trustee an Opinion of Counsel,
addressed to the Trustee and the Depositor, to the effect that the holding by
the REMIC of such REO Property subsequent to three years after its acquisition
will not result in the imposition on the Lower Tier REMIC of taxes on
"prohibited transactions" thereof, as defined in Section 860F of the Code, or
cause the Lower Tier REMIC 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 the REMIC of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code, or any "net income from foreclosure
property" which is subject to taxation under the REMIC Provisions.
(b) The Servicer shall separately account for all funds collected and
received by it in connection with the operation of any REO Property and shall
establish and maintain, or cause to be established and maintained, with
respect to REO Properties an account held in trust for the Trustee for the
benefit of the Certificateholders (each such account, an "REO Account"), which
shall be an Eligible Account. 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 Servicer 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 in
the clearing account in which it customarily deposits payments and collections
on mortgage loans in connection with its mortgage loan servicing activities on
a daily basis, and in no event more than one Business Day after the Servicer's
receipt thereof, and shall thereafter deposit in the REO Account, in no event
more than two Business Days after the Servicer's receipt thereof, all revenues
received by it with respect to an REO Property and shall withdraw therefrom
funds necessary for the proper operation, management and maintenance of such
REO Property including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with respect to an
REO Property are insufficient for the purposes set forth in clauses (i)
through (iii) above with respect to such REO Property, the 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 such
REO Property and if, in the Servicer's judgment, the payment of such amounts
will be recoverable from the rental or sale of such REO Property.
Notwithstanding the foregoing, Servicer shall not:
(i) authorize the Trust Fund to enter into, renew or extend any
New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents
from Real Property;
(ii) authorize any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize any construction on any REO Property, other
than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of such
building or other improvement was completed before default on the
related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) authorize any Person to Directly Operate any REO Property
on any date more than 90 days after its date of acquisition by the
Trust Fund;
unless, in any such case, the Servicer has obtained an Opinion of Counsel,
provided to the Trustee, to the effect that such action will not cause such
REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code at any time that it is held by the Lower
Tier REMIC, 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:
(v) the terms and conditions of any such contract shall not be
inconsistent herewith;
(vi) 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;
(vii) 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
(viii) 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 hereof is sufficient to pay such fees;
provided, however, that to the extent that any payments made by such
Independent Contractor would constitute Servicing Advances if made by the
Servicer, such amounts shall be reimbursable as Servicing Advances made by the
Servicer.
(d) In addition to the withdrawals permitted under Section 3.23(c)
hereof, the Servicer may from time to time make withdrawals from the
applicable REO Account for any REO Property: (i) to pay itself or any
Sub-Servicers unpaid Servicing Fees in respect of the related Mortgage Loan;
and (ii) to reimburse itself or any Sub-Servicers for unreimbursed Servicing
Advances and Advances made in respect of such REO Property or the related
Mortgage Loan. On the Servicer Remittance Date, the Servicer shall withdraw
from each REO Account and deposit into the Distribution Account in accordance
with Section 3.10(d)(i) hereof, for distribution on the related Distribution
Date in accordance with Section 4.01 hereof, the income from the related REO
Property received during the prior calendar month, net of any withdrawals made
pursuant to Section 3.23(c) hereof or this Section 3.23(d).
(e) Subject to the time constraints set forth in Section 3.23(a)
hereof, each REO Disposition shall be carried out by the 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 Servicing Standard.
(f) The proceeds from the REO Disposition, net of any amount required
by law to be remitted to the Mortgagor under the related Mortgage Loan and net
of any payment or reimbursement to the Servicer or any Sub-Servicer as
provided above, shall be deposited in the Distribution Account in accordance
with Section 3.10(d)(i) hereof on the Servicer Remittance Date in the month
following the receipt thereof for distribution on the related Distribution
Date in accordance with Section 4.01 hereof. Any REO Disposition shall be for
cash only (unless changes in the REMIC Provisions made subsequent to the
Startup Day allow a sale for other consideration).
(g) 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.
No later than the Servicer Remittance Date, the Servicer shall remit
to the Collection Account an amount ("Compensating Interest") equal to the
lesser of (i) the aggregate of the Prepayment Interest Shortfalls for the
related Distribution Date and (ii) the Compensating Interest Cap for the
related Due Period.
The Servicer shall not have the right to reimbursement for any
amounts remitted to the Trustee in respect of Compensating Interest. Such
amounts so remitted shall be included in Available Funds and distributed
therewith on the next Distribution Date. 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 Adjustments.
In the event that a shortfall in any collection on or liability with
respect to the Mortgage Loans in the aggregate results from or is attributable
to adjustments to Stated Principal Balances that were made by the Servicer in
a manner not consistent with the terms of the related Mortgage Notes 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 the Servicer or this Agreement.
Notwithstanding the foregoing, this Section 3.26 shall not limit the ability
of the Servicer to seek recovery of any such amounts from the related
Mortgagor under the terms of the related Mortgage Note, as permitted by law.
SECTION 3.27. Solicitations.
From and after the Closing Date, the Servicer agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
and any Servicer Affiliates, or by any independent contractors or independent
mortgage brokerage companies on the Servicer's behalf, to personally, by
telephone or mail, solicit the Mortgagor under any Mortgage Loan for the
purpose of refinancing such Mortgage Loan; provided, however, that the
Servicer may solicit any Mortgagor for whom the Servicer has received a
request for verification of mortgage, a request for demand for payoff, a
mortgagor initiated written or verbal communication indicating a desire to
prepay the related Mortgage Loan, or the mortgagor initiates a title search;
and provided, further, it is understood and agreed that promotions undertaken
by a Servicer or any Servicer Affiliates that (i) concern optional insurance
products or other additional products or (ii) are generally directed to the
customers of the Servicer or the Servicer Affiliates (including customers
meeting certain defined parameters), including, without limitation, mass
mailings based on commercially acquired mailing lists, newspaper, radio and
television advertisements shall not constitute solicitation under this
Section, nor is the Servicer prohibited from responding to unsolicited
requests or inquiries made by a Mortgagor or an agent of a Mortgagor.
ARTICLE IV
FLOW OF FUNDS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall withdraw funds on
deposit in the Distribution Account to the extent of the Available Funds for
such Distribution Date and make the following disbursements and transfers in
the order of priority set forth below and to the extent of such funds, based
upon information provided to the Trustee pursuant to Section 4.05(a) hereof:
(i) to the Holder of the Class A-R Certificate, the related
Interest Distributable Amount for that date;
(ii) to the Holders of the Class A-1, Class A-2 and Class X
Certificates, the related Interest Distributable Amounts for that
date, pro rata (based on the Interest Distributable Amount to which
each such Class is entitled);
(iii) from the Principal Distribution Amount for such
Distribution Date, an amount equal to the Senior Principal
Distribution Amount for that date, as follows:
(A) first, to the Holder of Class A-R Certificate, until
the Class Certificate Principal Balance of such Class is
reduced to zero;
(B) second, to the Holders of the Class A-1 Certificates,
until the Class Certificate Principal Balance of such Class is
reduced to zero; and
(C) third, to the Holders of the Class A-2 Certificates,
until the Class Certificate Principal Balance of such Class is
reduced to zero;
(iv) the Available Funds remaining after giving effect to
the distributions specified in subsections (i), (ii) and (iii) above,
to the Certificateholders in the following order of priority:
(A) to the Servicer, the amount to which the Servicer
shall be entitled, by way of indemnification, pursuant to
Section 6.03;
(B) to the Holders of the Class B-1 Certificates, the
related Interest Distributable Amount for that date;
(C) to the Holders of the Class B-1 Certificates, an
amount allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to zero;
(D) to the Holders of the Class B-2 Certificates, the
related Interest Distributable Amount for that date;
(E) to the Holders of the Class B-2 Certificates, an
amount allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to zero;
(F) to the Holders of the Class B-3 Certificates, the
related Interest Distributable Amount for that date;
(G) to the Holders of the Class B-3 Certificates, an
amount allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to zero;
(H) to the Holders of the Class B-4 Certificates, the
related Interest Distributable Amount for that date;
(I) to the Holders of the Class B-4 Certificates, an
amount allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to zero;
(J) to the Holders of the Class B-5 Certificates, the
related Interest Distributable Amount for that date;
(K) to the Holders of the Class B-5 Certificates, an
amount allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to zero;
(L) to the Holders of the Class B-6 Certificates, the
related Interest Distributable Amount for that date;
(M) to the Holders of the Class B-6 Certificates, an
amount allocable to principal equal to its Pro Rata Share for
such Distribution Date until the Class Certificate Principal
Balance of such Class is reduced to zero; and
(N) to the Holder of the Class A-R Certificate, any
Available Funds then remaining.
(b) Amounts to be paid to the Holders of a Class of Certificates
shall be payable with respect to all Certificates of that Class, pro rata,
based on the Certificate Principal Balance or Certificate Notional Balance, as
applicable, of each Certificate of that Class.
(c) [Reserved].
(d) On each Distribution Date, the Interest Distributable Amounts for
the Classes of Senior Certificates and Subordinate Certificates on such
Distribution Date shall be reduced by the pro rata share of each such Class
in:
(i) Net Prepayment Interest Shortfalls and Relief Act
Reductions, based on such Class's Interest Distributable Amount
without taking into account such Net Prepayment Interest Shortfalls
and Relief Act Reductions;
(ii) after the Special Hazard Coverage Termination Date, with
respect to each Mortgage Loan that became a Special Hazard Mortgage
Loan during the related Prepayment Period, the excess of one month's
interest at the related Net Loan Rate on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in such month over
the amount of Liquidation Proceeds applied as interest on such
Mortgage Loan with respect to such related Prepayment Period;
(iii) after the Bankruptcy Coverage Termination Date, with
respect to each Mortgage Loan that became subject to a Bankruptcy
Loss during the related Prepayment Period, the interest portion of
the related Debt Service Reduction or Deficient Valuation; and
(iv) after the Fraud Coverage Termination Date, with respect to
each Mortgage Loan that became a Fraud Loan during the related
Prepayment Period, the excess of one month's interest at the related
Net Loan Rate on the Stated Principal Balance of such Mortgage Loan
as of the Due Date in such month over the amount of Liquidation
Proceeds applied as interest on such Mortgage Loan with respect to
such month.
(e) Notwithstanding the priority and allocation set forth in Section
4.01(a)(iv) above, if with respect to any Class of Subordinate Certificates on
any Distribution Date the sum of the related Class Subordination Percentages
of such Class and of all other Classes of Subordinate Certificates which have
a higher numerical Class designation than such Class (the "Applicable Credit
Percentage") is less than the Original Applicable Credit Percentage for such
Class, no distribution of Principal Prepayments will be made to any such
Classes (the "Restricted Classes") and the amount of such Principal Prepayment
otherwise distributable to the Restricted Classes shall be distributed to any
Classes of Subordinate Certificates having lower numerical Class designations
than such Class, pro rata, based on the Class Certificate Principal Balances
of the respective Classes immediately prior to such Distribution Date and
shall be distributed in the sequential order provided in Section 4.01(a)(iv)
above.
(f) Distributions on Physical Certificates. The Trustee shall make
distributions in respect of a Distribution Date to each Certificateholder of
record on the related Record Date (other than as provided in Section 10.01
hereof respecting the final distribution), in the case of Certificateholders
of the Physical Certificates, by check or money order mailed to such
Certificateholder at the address appearing in the Certificate Register, or by
wire transfer. Distributions among Certificateholders of a Class shall be made
in proportion to the Percentage Interests evidenced by the Certificates of
that Class held by such Certificateholders.
(g) Distributions on Book-Entry Certificates. Each distribution with
respect to a Book-Entry Certificate shall be paid to the Depository, which
shall credit the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing
funds to the Certificate Owners that it represents. All such credits and
disbursements with respect to a Book-Entry Certificate are to be made by the
Depository and the Depository Participants in accordance with the provisions
of the Certificates. None of the Trustee, the Depositor, the Servicer or the
Seller shall have any responsibility therefor.
SECTION 4.02. [Reserved].
SECTION 4.03. Allocation of Realized Losses and Excess Losses.
(a) On or prior to each Determination Date, the Servicer shall
determine the total amount of Realized Losses, including Excess Losses, with
respect to the Mortgage Loans and the related Distribution Date, and provide
such information to the Trustee, accompanied by its Officers' Certificate.
(b) Realized Losses, Bankruptcy Losses, Fraud Losses and Special
Hazard Losses with respect to any Distribution Date shall be allocated as
follows:
(i) Realized Losses, Bankruptcy Losses, Fraud Losses and
Special Hazard Losses (other than Excess Losses) shall be allocated:
first, to the Subordinate Certificates in reverse order of
their respective numerical Class designations (beginning
with the Class of Subordinate Certificates with the highest
numerical Class designation) until the Class Certificate
Principal Balance of each such Class is reduced to zero; and
second, to the Senior Certificates other than the Class X
Certificates, pro rata, until the Class Certificate
Principal Balance of each Class of Senior Certificates is
reduced to zero;
(ii) any Excess Losses on the Mortgage Loans shall be allocated
to the Senior Certificates and the Subordinate Certificates, pro
rata, on the basis of the respective Class Certificate Principal
Balances of the Classes of Senior Certificates and Subordinate
Certificates.
(c) The Class Certificate Principal Balance of the Class of
Subordinate Certificates then outstanding with the highest numerical Class
designation shall be reduced on each Distribution Date by the amount, if any,
by which the aggregate of the Class Certificate Principal Balances of all
outstanding Classes of Certificates (after giving effect to the distribution
of principal and the allocation of Realized Losses, Bankruptcy Losses, Fraud
Losses and Special Hazard Losses and Excess Losses on such Distribution Date)
exceeds the aggregate of the Stated Principal Balances of all the Mortgage
Loans for the following Distribution Date.
(d) Any Realized Loss, Bankruptcy Loss, Fraud Loss, Special Hazard
Loss or Excess Loss allocated to a Class of Certificates or any reduction in
the Class Certificate Principal Balance of a Class of Certificates pursuant to
Section 4.03(b) or (c) shall be allocated among the Certificates of such
Class, pro rata, in proportion to their respective Certificate Principal
Balances.
(e) Any allocation of Realized Losses to a Certificate or any
reduction in the Certificate Principal Balance of a Certificate pursuant to
Section 4.03(b) or (c) shall be accomplished by reducing the Certificate
Principal Balance thereof immediately following the distributions made on the
related Distribution Date in accordance with the definition of "Certificate
Principal Balance".
SECTION 4.04. Statements.
(a) On each Distribution Date, based, as applicable, on information
provided to it by the Servicer in the Remittance Report, the Trustee shall
prepare and make available on its website at www.chase.com/sfa, a statement
(the "Distribution Date Statement") as to the distributions made on such
Distribution Date:
(i) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates allocable to
principal;
(ii) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates allocable to
interest;
(iii) the Pro Rata Senior Percentage, Senior Percentage, Senior
Prepayment Percentage, Subordinate Percentage and Subordinate
Prepayment Percentage for the following Distribution Date;
(iv) the aggregate amount of servicing compensation received by
the Servicer during the related Due Period and such other customary
information as the Trustee deems necessary or desirable, or which a
Certificateholder reasonably requests, to enable Certificateholders
to prepare their tax returns;
(v) the aggregate amount of Advances for the related Due Period
and the amount of unreimbursed Advances;
(vi) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, each as of
the related Determination Date;
(vii) the Pool Balance and Net WAC at the Close of Business at
the end of the related Due Period;
(viii) the number, weighted average remaining term to maturity
and weighted average Loan Rate of the Mortgage Loans as of the
related Due Date;
(ix) the number and aggregate unpaid principal balance of
Mortgage Loans (a) 30 to 59 days Delinquent, (b) 60 to 89 days
Delinquent, (c) 90 or more days Delinquent, (d) as to which
foreclosure proceedings have been commenced and (e) in bankruptcy,
in each case as of the Determination Date preceding such
Distribution Date;
(x) with respect to any Mortgage Loan that became a REO
Property during the preceding calendar month, the loan number of
such Mortgage Loan and the Principal Balance of such Mortgage Loan
as of the date it became a REO Property;
(xi) the book value of any REO Property as of the Close of
Business on the last Business Day of the calendar month preceding
the Distribution Date, and, cumulatively, the total number and
cumulative principal balance of all REO Properties as of the Close
of Business of the last day of the preceding Due Period;
(xii) the aggregate amount of Principal Prepayments made during
the related Prepayment Period;
(xiii) the aggregate amount of Realized Losses incurred during
the related Due Period and the cumulative amount of Realized Losses;
(xiv) the aggregate amount of extraordinary Trust Fund expenses
withdrawn from the Collection Account for such Distribution Date;
(xv) the Class Certificate Principal Balance of each Class of
Certificates (other than the Class X Certificates) and the Class
Certificate Notional Balance of the Class X Certificates, after
giving effect to any distributions made thereon, on such
Distribution Date;
(xvi) the Interest Distributable Amount in respect of each
Class of the Certificates, for such Distribution Date and the
respective portions thereof, if any, remaining unpaid following the
distributions made in respect of such Certificates on such
Distribution Date;
(xvii) the aggregate amount of any Prepayment Interest
Shortfalls and the Unpaid Interest Shortfall Amount for such
Distribution Date, to the extent not covered by payments by the
Servicer pursuant to Section 3.24 hereof;
(xviii) if applicable, whether the Step Down Conditions have
been met;
(xix) the Available Funds;
(xx) the Pass-Through Rate for each Class of Certificates for
such Distribution Date; and
(xxi) the aggregate Principal Balance of Mortgage Loans
purchased by the Servicer or the Seller during the related Due
Period, and indicating the Section of this Agreement requiring or
allowing the purchase of each such Mortgage Loan.
Holders that are unable to use the above distribution options are
entitled to have a paper copy mailed to them via first class mail by notifying
the Trustee in writing and requesting same. The Trustee shall have the right
to change the way Distribution Date Statements are distributed in order to
make such distribution more convenient and/or more accessible to the Holders
and the Trustee shall provide timely and adequate notification to the Holders
regarding any such changes. The Trustee's obligations pursuant to this Section
4.04 are limited to the extent of its receipt of all necessary information
from the Servicer. The Trustee may fully rely upon and shall have no liability
with respect to information provided by the Servicer.
In the case of information furnished pursuant to subclauses (i) and
(ii) above, the amounts shall be expressed in a separate section of the report
as a dollar amount for each Class for each $1,000 original dollar amount as of
the Cut-Off Date.
(b) Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon written request, furnish to each Person who at
any time during the calendar year was a Certificateholder of a Regular
Certificate, if requested in writing by such Person, such information as is
reasonably necessary to provide to such Person a statement containing the
information set forth in subclauses (i) through (iii) above, aggregated for
such calendar year or applicable portion thereof during which such Person was
a Certificateholder. Such obligation of the Trustee shall be deemed to have
been satisfied to the extent that substantially comparable information shall
be prepared and furnished by the Trustee to Certificateholders pursuant to any
requirements of the Code as are in force from time to time.
(c) On each Distribution Date, the Trustee shall supply an electronic
tape to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg
Financial Markets, Inc.
SECTION 4.05. Remittance Reports; Advances.
(a) No later than the fifth Business Day of each calendar month, the
Servicer shall deliver to the Trustee, by telecopy or electronic mail (or by
such other means as the Servicer and the Trustee may agree from time to time),
a remittance report (the "Remittance Report") with respect to the related
Distribution Date. Not later than the Close of Business New York time three
Business Days prior to the related Distribution 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 hereof (including, but not limited to information concerning
Advances), and to prepare the Distribution Date Statements contemplated by
Section 4.04 hereof. The Trustee shall not be responsible to recompute,
recalculate or verify any information provided to it by the Servicer.
(b) The amount of Advances to be made by the Servicer for any
Distribution Date shall equal, subject to Section 4.05(d) below, the sum of
(i) the aggregate amount of Monthly Payments (net of the related Servicing
Fee) due during the related Due Period in respect of the Mortgage Loans, which
Monthly Payments were Delinquent on a contractual basis as of the Close of
Business on the related Determination Date and (ii) with respect to each REO
Property, which REO Property was acquired during or prior to the related Due
Period and as to which REO Property an REO Disposition did not occur during
the related Due Period, an amount equal to the excess, if any, of the REO
Imputed Interest on such REO Property for the most recently ended calendar
month, over the net income from such REO Property transferred to the
Distribution Account pursuant to Section 3.23 hereof for distribution on such
Distribution Date.
On or before the Close of Business in the City of New York on each
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 either (i)
from its own funds or (ii) from the Collection Account, to the extent of funds
held therein for future distribution (in which case it will cause to be made
an appropriate entry in the records of the Collection Account that amounts
held for future distribution have been, as permitted by this Section 4.05,
used by the Servicer in discharge of any such Advance) or (iii) in the form of
any combination of (i) and (ii) aggregating the total amount of Advances to be
made by the Servicer with respect to the Mortgage Loans and REO Properties.
Any amounts held for future distribution and so used shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by deposit in
the Collection Account on or before any future Servicer Remittance Date to the
extent that the Available Funds for the related Distribution Date (determined
without regard to Advances to be made on the Servicer Remittance Date) shall
be less than the total amount that would be distributed to the Classes of
Certificateholders pursuant to Section 4.01 on such Distribution Date if such
amounts held for future distributions had not been so used to make Advances.
The Trustee will promptly provide notice to the Servicer by telecopy 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, as set forth in the related Remittance Report.
(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 serviced by the Servicer,
shall continue until the Mortgage Loan is paid in full or until the recovery
of all Liquidation Proceeds thereon.
(d) Notwithstanding anything herein to the contrary, no Advance or
Servicing Advance shall be required to be made hereunder by 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 delivered to the Depositor and the Trustee.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
Each of the Class A-1 and Class A-2 Certificates shall be
substantially in the form annexed hereto as Exhibit A, the Class A-R
Certificate shall be substantially in the form annexed hereto as Exhibit B,
each of the Subordinate Certificates shall be substantially in the form
annexed hereto as Exhibit C, and the Class X Certificates shall be
substantially in the form annexed hereto as Exhibit D. Each of the
Certificates shall, on original issue, be executed, authenticated and
delivered by the Trustee to or upon the order of the Depositor concurrently
with the sale and assignment to the Trustee of the Trust Fund. Each Class of
the Regular Certificates shall be initially evidenced by one or more
Certificates representing a Percentage Interest with a minimum dollar
denomination of $25,000 and integral dollar multiples of $1 in excess thereof,
except that one Certificate of each such Class of Certificates may be in a
different denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Class Certificate Principal Balance
or Class Certificate Notional Balance of such Class on the Closing Date. The
Class A-R Certificate is issuable only in a Percentage Interest of 100%.
The Certificates shall be executed on behalf of the Trust by manual
or facsimile signature on behalf of the Trustee by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures were affixed, authorized to sign on
behalf of the Trustee shall bind the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement or be valid for any purpose, unless such
Certificate shall have been manually authenticated by the Trustee
substantially in the form provided for herein, and such authentication upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. Subject to
Section 5.02(c), the Senior Certificates (other than the Class A-R
Certificate) shall be Book-Entry Certificates. The Class A-R Certificate and
the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates shall be Physical Certificates.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall cause to be kept at the Corporate
Trust Office a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for
the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall initially serve as
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Certificate Registrar maintained for such purpose
pursuant to the foregoing paragraph (or the deemed surrender of a Certificate
pursuant to Section 8.17(g)) and, in the case of a Private Certificate or
Class A-R Certificate, upon satisfaction of the conditions set forth below,
the Trustee on behalf of the Trust shall execute, authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same aggregate Percentage Interest.
At the option of the Certificateholders, Certificates may be
exchanged for other Certificates in authorized denominations and the same
aggregate Percentage Interests, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute on behalf of the Trust and
authenticate and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall (if so required by
the Trustee or the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer satisfactory to the Trustee
and the Certificate Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing.
(b) Except as provided in paragraph (c) below, the Book-Entry
Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration of such
Certificates may not be transferred by the Trustee or the Certificate
Registrar except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Certificates; (iii) ownership and transfers of
registration of such Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee shall for all purposes deal with
the Depository as representative of the Certificate Owners of the Certificates
for purposes of exercising the rights of Holders under this Agreement, and
requests and directions for and votes of such representative shall not be
deemed to be inconsistent if they are made with respect to different
Certificate Owners; (vi) the Trustee and the Certificate Registrar may rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and
Persons shown on the books of such indirect participating firms as direct or
indirect Certificate Owners; and (vii) the direct participants of the
Depository shall have no rights under this Agreement under or with respect to
any of the Certificates held on their behalf by the Depository, and the
Depository may be treated by the Trustee, the Certificate Registrar and their
respective agents, employees, officers and directors as the absolute owner of
the Certificates for all purposes whatsoever.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owners. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners that it represents or of brokerage firms for which it acts
as agent in accordance with the Depository's normal procedures. The parties
hereto are hereby authorized to execute a Letter of Representations with the
Depository or take such other action as may be necessary or desirable to
register a Book-Entry Certificate to the Depository. In the event of any
conflict between the terms of any such Letter of Representation and this
Agreement, the terms of this Agreement shall control.
(c) If (i)(x) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to discharge properly
its responsibilities as Depository and (y) the Trustee or the Depositor is
unable to locate a qualified successor, (ii) the Depositor, at its sole
option, with the consent of the Trustee, elects to terminate the book-entry
system through the Depository or (iii) after the occurrence of a Servicer
Event of Termination, the Certificate Owners of each Book-Entry Certificate
representing Percentage Interests of such Classes aggregating not less than
51% advises the Trustee and Depository through the Financial Intermediaries
and the Depository Participants in writing that the continuation of a
book-entry system through the Depository to the exclusion of definitive, fully
registered certificates (the "Definitive Certificates") to Certificate Owners
is no longer in the best interests of the Certificate Owners. Upon surrender
to the Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall, at the Depositor's expense, in the case of (ii) above, or
the Seller's expense, in the case of (i) and (iii) above, execute on behalf of
the Trust and authenticate the Definitive Certificates. Neither the Depositor
nor the Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, the Trustee, the
Certificate Registrar, the Servicer, any Paying Agent and the Depositor shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) Except with respect to the initial transfer of the Subordinate
Certificates, no transfer, sale, pledge or other disposition of any Private
Certificate shall be made unless such disposition is exempt from the
registration requirements of the 1933 Act, and any applicable state securities
laws or is made in accordance with the 1933 Act and laws. In the event of any
such transfer, (i) unless such transfer is made in reliance upon Rule 144A (as
evidenced by the investment letter delivered to the Trustee, in substantially
the form attached hereto as Exhibit J under the 1933 Act), the Trustee and the
Depositor shall require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to
the Trustee and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from
the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor or (ii) the
Trustee shall require the transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit K) and the transferee to
execute an investment letter (in substantially the form attached hereto as
Exhibit J) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which investment letter shall not be an
expense of the Trustee or the Depositor. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee, the Seller, the Servicer and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of an ERISA-Restricted Certificate that is also a
Physical Certificate shall be made unless the Trustee shall have received
either (i) a representation from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor (such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I hereto), to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975 of the Code, nor a person acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect
such transfer or (ii) if the ERISA-Restricted Certificate has been the subject
of an ERISA Qualifying Underwriting and the purchaser is an insurance company,
a representation that the purchaser is an insurance company which is
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption ("PTCE") 95-60 and that the purchase and holding
of such Certificates are covered under Sections I and III of PTCE 95-60 or
(iii) an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of either the Trustee or the Trust, addressed
to the Trustee, to the effect that the purchase and holding of such
ERISA-Restricted Certificate will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, will not
result in the assets of the Trust being deemed to be "plan assets" and subject
to the prohibited transaction provisions of ERISA and the Code and will not
subject the Trustee, the Servicer or the Depositor to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
Notwithstanding anything else to the contrary herein, any purported transfer
of an ERISA-Restricted Certificate that is also a Physical Certificate to an
employee benefit plan subject to ERISA or Section 4975 of the Code without the
delivery to the Trustee of an Opinion of Counsel satisfactory to the Trustee
as described above shall be void and of no effect.
In the case of an ERISA-Restricted Certificate that is also a
Book-Entry Certificate, for purposes of clauses (i) or (ii) of the first
sentence of the preceding paragraph, such representations shall be deemed to
have been made to the Trustee by the transferee's acceptance of such
ERISA-Restricted Certificate that is also a Book-Entry Certificate (or the
acceptance by a Certificate Owner of the beneficial interest in such
Certificate).
To the extent permitted under applicable law (including, but not
limited to, ERISA), neither the Trustee nor the Certificate Registrar shall
have any liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to the Holder
thereof or taking any other action with respect to such Holder under the
provisions of this Agreement so long as the transfer was registered by the
Trustee or the Certificate Registrar in accordance with the foregoing
requirements. In addition, neither the Trustee nor the Certificate Registrar
shall be required to monitor, determine or inquire as to compliance with the
transfer restrictions with respect to any ERISA-Restricted Certificates in the
form of Book-Entry Certificates, and neither the Trustee nor the Certificate
Registrar shall have any liability for transfers of Book-Entry Certificates or
any interests therein made in violation of the restrictions on transfer
described in the Prospectus Supplement and this Agreement.
(e) Each Person who has or who acquires any Ownership Interest in the
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably appointed the Depositor or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause (v)
below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in the Class A-R Certificate are expressly
subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
the Class A-R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in the Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of the Class A-R Certificate
unless, in addition to the certificates required to be delivered
under subsection (b) above, the Trustee shall have been furnished
with an affidavit ("Transfer Affidavit") of the initial owner or
proposed transferee in the form attached hereto as Exhibit L.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Class A-R Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to it,
in form and substance satisfactory to it, of each of the following:
A. a Transferor Certificate in the form of Exhibit
K hereto from the proposed transferee to the effect that
such transferee is a Permitted Transferee and that it is not
acquiring an Ownership Interest in the Class A-R Certificate
that is the subject of the proposed transfer as a nominee,
trustee or agent for any Person who is not a Permitted
Transferee; and
B. a covenant of the proposed transferee to the
effect that the proposed transferee agrees to be bound by and
to abide by the transfer restrictions applicable to the
Class A-R Certificate.
(iv) Any attempted or purported Transfer of any Ownership
Interest in the Class A-R Certificate in violation of the provisions
of this Section shall be absolutely null and void and shall vest no
rights in the purported transferee. If any purported transferee
shall, in violation of the provisions of this Section, become a
Holder of the Class A-R Certificate, then the prior Holder of the
Class A-R Certificate that is a Permitted Transferee shall, upon
discovery that the registration of Transfer of the Class A-R
Certificate was not in fact permitted by this Section, be restored
to all rights as Holder thereof retroactive to the date of
registration of transfer of the Class A-R Certificate. Neither the
Trustee nor the Certificate Registrar shall have any liability to
any Person for any registration of Transfer of the Class A-R
Certificate that is in fact not permitted by this Section or for
making any distributions due on the Class A-R Certificate to the
Holder thereof or taking any other action with respect to such
Holder under the provisions of this Agreement so long as the Trustee
received the documents specified in clause (iii). The Trustee shall
be entitled to recover from any Holder of the Class A-R Certificate
that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on the Class A-R
Certificate. Any such distributions so recovered by the Trustee
shall be distributed and delivered by the Trustee to the last Holder
of the Class A-R Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires
any Ownership Interest in the Class A-R Certificate in violation of
the restrictions in this Section, then the Trustee shall have the
right but not the obligation, without notice to the Holder of the
Class A-R Certificate or any other Person having an Ownership
Interest therein, to notify the Depositor to arrange for the sale of
the Class A-R Certificate. The proceeds of such sale, net of
commissions (which may include commissions payable to the Depositor
or its affiliates in connection with such sale), expenses and taxes
due, if any, will be remitted by the Trustee to the previous Holder
of the Class A-R Certificate that is a Permitted Transferee, except
that in the event that the Trustee determines that the Holder of the
Class A-R Certificate may be liable for any amount due under this
Section or any other provisions of this Agreement, the Trustee may
withhold a corresponding amount from such remittance as security for
such claim. The terms and conditions of any sale under this clause
(v) shall be determined in the sole discretion of the Trustee and it
shall not be liable to any Person having an Ownership Interest in
the Class A-R Certificate as a result of its exercise of such
discretion.
(vi) If any Person other than a Permitted Transferee acquires
any Ownership Interest in the Class A-R Certificate in violation of
the restrictions in this Section, then the Trustee upon receipt of
reasonable compensation will provide to the Internal Revenue
Service, and to the persons specified in Sections 860E(e)(3) and (6)
of the Code, information needed to compute the tax imposed under
Section 860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee and the Servicer, in form and substance satisfactory to the Trustee,
(i) written notification from the Rating Agencies that the removal of the
restrictions on Transfer set forth in this Section will not cause such Rating
Agency to downgrade its rating of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause either REMIC hereunder
to fail to qualify as a REMIC.
(f) No service charge shall be made for any registration of transfer
or exchange of Certificates of any Class, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled by the Certificate Registrar and disposed of pursuant to
its standard procedures.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate and (ii) there is
delivered to the Trustee, the Depositor and the Certificate Registrar such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser,
the Trustee shall execute on behalf of the Trust, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Percentage Interest. Upon the
issuance of any new Certificate under this Section, the Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) in connection therewith. Any duplicate Certificate
issued pursuant to this Section, shall constitute complete and indefeasible
evidence of ownership in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Servicer, the Depositor, the Trustee, the Certificate Registrar,
any Paying Agent and any agent of the Servicer, the Depositor, the Certificate
Registrar, any Paying Agent or the Trustee may treat the Person, including a
Depository, in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
4.01 hereof and for all other purposes whatsoever, and none of the Servicer,
the Trust, the Trustee, the Certificate Registrar, the Paying Agent or any
agent of any of them shall be affected by notice to the contrary.
SECTION 5.05. Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to Certificateholders
from the Distribution Account pursuant to Section 4.01 hereof and shall report
the amounts of such distributions to the Trustee. The duties of the Paying
Agent may include the obligation (i) to withdraw funds from the Collection
Accounts pursuant to Section 3.11(a) hereof and for the purpose of making the
distributions referred to above and (ii) to distribute statements and provide
information to Certificateholders as required hereunder. The Paying Agent
hereunder shall at all times be an entity duly incorporated and validly
existing under the laws of the United States of America or any state thereof,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal or state authorities. The Paying Agent
shall initially be the Trustee. The Trustee may appoint a successor to act as
Paying Agent, which appointment shall be reasonably satisfactory to the
Depositor.
(b) The Trustee shall cause the Paying Agent (if other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent shall hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders and shall agree that it shall comply
with all requirements of the Code regarding the withholding of payments in
respect of federal income taxes due from Certificate Owners and otherwise
comply with the provisions of this Agreement applicable to it.
ARTICLE VI
THE SELLER, THE SERVICER AND THE DEPOSITOR
SECTION 6.01. Liability of the Seller, the Servicer and the
Depositor.
The Seller and the Servicer shall be liable in accordance herewith
only to the extent of the obligations specifically imposed upon and undertaken
by the Seller or the Servicer, as the case may be, herein. The Depositor shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Depositor herein.
SECTION 6.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Seller, the Servicer or the Depositor.
Any entity into which the Seller, the Servicer or the Depositor may
be merged or consolidated, or any entity resulting from any merger, conversion
or consolidation to which the Seller, the Servicer or the Depositor shall be a
party, or any corporation succeeding to the business of the Seller, the
Servicer or the Depositor, shall be the successor of the Seller, the Servicer
or the Depositor, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that the successor Servicer shall satisfy all the requirements of Section 7.02
hereof with respect to the qualifications of a successor Servicer.
SECTION 6.03. Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the Trust
or the Certificateholders for any action taken or for refraining from the
taking of any action by the Servicer in good faith pursuant to this Agreement,
or for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of its willful misfeasance, bad faith or
negligence in the performance of duties of the Servicer or by reason of the
Servicer's failure to perform its obligations and duties hereunder; provided,
further, that this provision shall not be construed to entitle the Servicer to
indemnity in the event that amounts advanced by the Servicer to retire any
senior lien exceed Liquidation Proceeds (in excess of related liquidation
expenses) realized with respect to the related Mortgage Loan. The preceding
sentence shall not limit the obligations of the Servicer pursuant to Section
6.05 hereof. The Servicer and any director or officer or employee or agent of
the Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Servicer and any director or officer or employee or agent of
the Servicer shall be indemnified by the Trust and held harmless against any
loss, liability or expense incurred in connection with any audit, controversy
or judicial proceeding relating to a governmental taxing authority or any
legal action relating to this Agreement or the Certificates, other than any
loss, liability or expense related to any specific Mortgage Loan or Mortgage
Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) and any loss, liability or expense
incurred by reason of its willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of its failure to perform its
obligations and duties hereunder. The Servicer shall be under no obligation to
appear in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder, provided, however, that the Servicer may
undertake any such action which it may deem necessary or desirable in respect
of this Agreement, and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. The Servicer's right to
indemnity or reimbursement pursuant to this Section shall be subject to the
payment priority described in Section 4.01(a) hereof and shall survive any
resignation or termination of the Servicer pursuant to Section 6.04 or 7.01
hereof with respect to any losses, expenses, costs or liabilities arising
prior to such resignation or termination (or arising from events that occurred
prior to such resignation or termination). This paragraph shall apply to the
Servicer solely in its capacity as Servicer hereunder and in no other
capacities.
SECTION 6.04. Servicer Not to Resign.
Subject to the provisions of Section 7.01 and Section 6.02 hereof,
the Servicer shall not resign from the obligations and duties hereby imposed
on it except (i) upon determination that the performance of the Servicer's
obligations or duties hereunder are no longer permissible under applicable law
or are in material conflict by reason of applicable law with any other
activities carried on by the Servicer or its subsidiaries or Affiliates, the
other activities of the Servicer so causing such a conflict being of a type
and nature carried on by the Servicer or its subsidiaries or the Servicer
Affiliates at the date of this Agreement or (ii) upon satisfaction of the
following conditions: (a) the Servicer has proposed a successor Servicer to
the Trustee in writing and such proposed successor Servicer is acceptable to
the Trustee, (b) each Rating Agency shall have delivered a letter to the
Trustee prior to the appointment of the successor Servicer stating that the
proposed appointment of such successor Servicer as the Servicer hereunder will
not result in the reduction or withdrawal of the then current rating of the
Regular Certificates; provided, however, that no such resignation by the
Servicer shall become effective until such successor servicer or, in the case
of clause (i) above, the Trustee shall have assumed the Servicer's
responsibilities and obligations hereunder or, in the case of clause (ii)
above, the Trustee shall have designated a successor servicer in accordance
with Section 7.02 hereof. Any such resignation shall not relieve the resigning
Servicer of responsibility for any of the obligations specified in Sections
7.01 and 7.02 hereof as obligations that survive the resignation or
termination of the Servicer. Any such determination permitting the resignation
of the Servicer pursuant to clause (i) above shall be evidenced by an Opinion
of Counsel to such effect delivered to the Trustee.
SECTION 6.05. Delegation of Duties.
In the ordinary course of business, the Servicer at any time may
delegate any of its duties hereunder to any Person, including any Servicer
Affiliates, who agrees to conduct such duties in accordance with standards
comparable to those set forth in Section 3.01 hereof. Such delegation shall
not relieve the Servicer of its liabilities and responsibilities with respect
to such duties and shall not constitute a resignation within the meaning of
Section 6.04 hereof. The Servicer shall provide the Trustee with 60 days prior
written notice prior to the delegation of any of its duties to any Person
other than any of the Servicer's Affiliates or their respective successors and
assigns.
ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Events of Termination.
(a) If any one of the following events (each, a "Servicer Event of
Termination") shall occur and be continuing:
(i) the failure by the Servicer to make any Advance or to
deposit in the Collection Account or the Distribution Account any
deposit required to be made under the terms of this Agreement; or
(ii) the failure by the Servicer to make any required Servicing
Advance which failure continues unremedied for a period of 60 days,
or the failure by the Servicer duly to observe or perform, in any
material respect, any other covenants, obligations or agreements of
the Servicer as set forth in this Agreement, which failure continues
unremedied for a period of 60 days, after the date (A) on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Trustee or to the
Servicer and the Trustee by Holders of Regular Certificates
evidencing at least 25% of the Voting Rights or (B) actual knowledge
of such failure by a Servicing Officer of the Servicer; or
(iii) the entry against the Servicer of a decree or order by a
court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of the
Servicer's affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 days; or
(iv) the Servicer shall voluntarily go into liquidation,
consent to the appointment of a conservator or receiver or
liquidator or similar person in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings
of or relating to the Servicer or of or relating to all or
substantially all of the Servicer's property; or a decree or order
of a court or agency or supervisory authority having jurisdiction in
the premises for the appointment of a conservator, receiver,
liquidator or similar person in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of the Servicer's affairs,
shall have been entered against the Servicer and such decree or
order shall have remained in force undischarged, unbonded or
unstayed for a period of 60 days; or 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;
(b) then, and in each and every such case, so long as a Servicer
Event of Termination shall not have been remedied within the applicable grace
period in the case of (ii), (iii) and (iv) above, the Trustee may, and at the
direction of the Holders of each Class of Regular Certificates evidencing
Percentage Interests aggregating not less than 51%, by notice then given in
writing to the Servicer (and to the Trustee if given by Holders of
Certificates) shall, terminate all of the rights and obligations of the
Servicer as the servicer under this Agreement. Any such notice to the Servicer
shall also be given to the Rating Agencies, the Depositor and the Seller. On
or after the receipt by the Servicer (and by the Trustee if such notice is
given by the Holders) of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Certificates or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the terminated Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement of each Mortgage Loan and related documents or otherwise. The
Servicer agrees to cooperate with the Trustee in effecting the termination of
the responsibilities and rights of the Servicer hereunder, including, without
limitation, the delivery to the Trustee of all documents and records requested
by it to enable it to assume the Servicer's functions under this Agreement
within ten Business Days subsequent to such notice, the transfer within one
Business Day subsequent to such notice to the Trustee for the administration
by it of all cash amounts that shall at the time be held by the Servicer and
to be deposited by it in the Collection Account, the Distribution Account, any
REO Account or the Servicing Account or that have been deposited by the
Servicer in such accounts or thereafter received by the Servicer with respect
to the Mortgage Loans or any REO Property received by the Servicer. All
reasonable costs and expenses (including attorneys' fees) incurred in
connection with transferring the Servicer's duties and the Mortgage Files to
the successor Servicer and amending this Agreement to reflect such succession
as Servicer pursuant to this Section shall be paid by the predecessor Servicer
(or if the predecessor Servicer is the Trustee, the initial Servicer) upon
presentation of reasonable documentation of such costs and expenses.
SECTION 7.02. Trustee to Act; Appointment of Successor.
(a) From and after the date the Servicer (and the Trustee, if notice
is sent by the Holders) receives a notice of termination pursuant to Section
7.01 or the date of determination permitting a resignation pursuant to Section
6.04, the Trustee (or any successor Servicer appointed by the Trustee in
accordance with this Section 7.02) shall be the successor in all respects to
the Servicer in its capacity as a servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof arising on and after its
succession. As compensation therefor, the Trustee shall be entitled to such
compensation as the Servicer would have been entitled to hereunder if no such
notice of termination had been given. Notwithstanding the above, (i) if the
Trustee is unwilling to act as successor Servicer or (ii) if the Trustee is
legally unable so to act, the Trustee shall appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution, bank or other mortgage loan or home equity loan servicer having a
net worth of not less than $15,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder; provided, however, that the
appointment of any such successor Servicer shall not result in the
qualification, reduction or withdrawal of the ratings that are in effect on
the Certificates by the Rating Agencies as evidenced by a letter to such
effect from the Rating Agencies. Pending appointment of a successor to the
Servicer hereunder, unless the Trustee is prohibited by law from so acting,
the Trustee shall act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the successor shall be entitled to
receive compensation out of payments on Mortgage Loans in an amount equal to
the compensation which the predecessor Servicer would otherwise have received
pursuant to Section 3.18 hereof. The successor Servicer shall be entitled to
withdraw from the Collection Account all reasonable costs and expenses
associated with the transfer of servicing to a successor Servicer. The
appointment of a successor Servicer shall not affect any liability of the
predecessor Servicer which may have arisen under this Agreement prior to its
termination as Servicer, including without limitation any liability to pay any
deductible under an insurance policy pursuant to Section 3.14 hereof or to
indemnify the Trustee pursuant to Section 8.05 hereof), nor shall any
successor Servicer be liable for any acts or omissions of the predecessor
Servicer or for any breach by the Servicer of any of its representations or
warranties contained herein or in any related document or agreement. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
(b) Any successor, including the Trustee, to the Servicer shall,
during the term of its service as the Servicer, continue to service and
administer the Mortgage Loans for the benefit of Certificateholders, and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as the Servicer hereunder and
a Fidelity Bond in respect of its officers, employees and agents to the same
extent as the Servicer is so required pursuant to Section 3.14 hereof.
SECTION 7.03. Waiver of Servicer Events of Termination.
The Majority Certificateholders may, on behalf of all
Certificateholders, by notice in writing to the Servicer and the Trustee,
waive any events permitting removal of the Servicer as a servicer pursuant to
this Article VII, provided, however, that the Majority Certificateholders may
not waive an event that results in a failure to make any required distribution
on a Certificate without the consent of the Holder of such Certificate. Upon
any waiver of a Servicer Event of Termination, such event shall cease to exist
and any Servicer Event of Termination arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other event or impair any right consequent thereto
except to the extent expressly so waived. Notice of any such waiver shall be
given by the Trustee to the Rating Agencies.
SECTION 7.04. Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to the
Servicer pursuant to this Article VII or Section 6.04 hereof, the Trustee
shall give prompt written notice thereof to the Certificateholders at their
respective addresses appearing in the Certificate Register and to the Rating
Agencies.
(b) No later than 60 days after the occurrence of any event which
constitutes or which, with notice or a lapse of time or both, would constitute
a Servicer Event of Termination for five Business Days after a Responsible
Officer of the Trustee becomes aware of the occurrence of such an event, the
Trustee shall transmit by mail to all Certificateholders notice of such
occurrence unless such Servicer Event of Termination shall have been waived or
cured.
SECTION 7.05. Survivability of Servicer Liabilities.
Notwithstanding anything herein to the contrary, upon termination of
the Servicer hereunder, any liabilities of the Servicer which accrued prior to
such termination shall survive such termination.
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of a Servicer Event of
Termination and after the curing or waiver of all Servicer Events of
Termination which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement. If a
Servicer Event of Termination has occurred (which has not been cured or
waived) of which a Responsible Officer has actual knowledge, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that the Trustee will not be responsible for the accuracy or content of any
such resolutions, certificates, statements, opinions, reports, documents or
other instruments. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner the Trustee shall notify
the Certificateholders of such instrument in the event that the Trustee, after
so requesting, does not receive a satisfactorily corrected instrument within a
reasonable amount of time.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) prior to the occurrence of a Servicer Event of Termination
of which a Responsible Officer has actual knowledge, and after the
curing of all such Servicer Events of Termination which may have
occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement;
(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining or investigating the facts related thereto;
(iii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the consent or at the direction of Holders
of Certificates as provided herein relating to the time, method and
place of conducting any remedy pursuant to this Agreement, or
exercising or omitting to exercise any trust or power conferred upon
the Trustee, under this Agreement;
(iv) the Trustee shall not be charged with, or deemed to have
knowledge of, any Servicer Event of Termination unless a Responsible
Officer of the Trustee at the Corporate Trust Office obtains actual
knowledge of such failure or the Trustee receives written notice of
such failure from the Servicer or the Majority Certificateholders.
In the absence of receipt of such notice or actual knowledge, the
Trustee may conclusively assume that no Servicer Event of
Termination has occurred; 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 to 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 to the maintenance of any such
recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (B) to see to any insurance, (C) to see
to 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 Distribution Account,
and (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.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of,
any of the obligations of 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.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01 hereof:
(a) the Trustee may request and rely upon, and shall be protected in
acting or refraining from acting upon, any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties, and the manner of
obtaining consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as the Trustee may prescribe;
(b) the Trustee may consult with counsel and any written advice of
its counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(c) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation hereunder or in relation hereto, at the request, order
or direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the right of the Trustee
to perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable for other than
its negligence or willful misconduct in the performance of any such act;
(d) 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;
(e) prior to the occurrence of a Servicer Event of Termination and
after the curing or waiver of all Servicer Events of Termination which may
have occurred, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or documents, unless requested in writing to do so by the
Majority Certificateholder; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security afforded to
it by the terms of this Agreement, the Trustee may require reasonable
indemnity against such cost, expense or liability as a condition to such
proceeding. The reasonable expense of every such examination shall be paid by
the Servicer or, if paid by the Trustee, shall be reimbursed by the Servicer
upon demand. Nothing in this clause (e) shall derogate from the obligation of
the Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors;
(f) the Trustee shall not be accountable, shall have no liability and
makes no representation as to any acts or omissions hereunder of the Servicer
until such time as the Trustee may be required to act as the Servicer pursuant
to Section 7.02 hereof and thereupon only for the acts or omissions of the
Trustee as the successor Servicer;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian; and
(h) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
authentication of the Trustee on the Certificates) shall be taken as the
statements of the Seller, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates (other than
the signature and authentication of the Trustee on the Certificates) or of any
Mortgage Loan or related document. The Trustee shall not be accountable for
the use or application by the Servicer, or for the use or application of any
funds paid to the Servicer in respect of Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Servicer. The Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage or any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the
Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence
and enforceability of any hazard insurance thereon (other than if the Trustee
shall assume the duties of the Servicer pursuant to Section 7.02 hereof and
then only for the acts or omissions of the Trustee as successor Servicer); the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume
the duties of a Servicer pursuant to Section 7.02 and then only for the acts
or omissions of the Trustee as successor Servicer); the compliance by the
Depositor, the Seller or the Servicer with any warranty or representation made
under this Agreement or in any related document or the accuracy of any such
warranty or representation prior to the Trustee's receipt of notice or other
discovery of any non-compliance therewith or any breach thereof; any
investment of monies by or at the direction of the Servicer or any loss
resulting therefrom, it being understood that the Trustee shall remain
responsible for any Trust property that it may hold in its individual
capacity; the acts or omissions of the Servicer (other than if the Trustee
shall assume the duties of the Servicer pursuant to Section 7.02 and then only
for the acts or omissions of the Trustee as the successor Servicer), any
Sub-Servicer or any Mortgagor; any action of the Servicer (other than if the
Trustee shall assume the duties of the Servicer pursuant to Section 7.02 and
then only for the acts or omissions of the Trustee as successor Servicer), or
any Sub-Servicer taken in the name of the Trustee; the failure of the Servicer
or any Sub-Servicer to act or perform any duties required of it as agent of
the Trustee hereunder; or any action by the Trustee taken at the instruction
of the Servicer (other than if the Trustee shall assume the duties of the
Servicer pursuant to Section 7.02 and then only for the actions of the Trustee
as the successor Servicer); provided, however, that the foregoing shall not
relieve the Trustee of its obligation to perform its duties under this
Agreement, including, without limitation, the Trustee's duty to review the
Mortgage Files, if so required pursuant to Section 2.01 hereof. The Trustee
shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder
(unless the Trustee shall have become the successor Servicer).
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact any banking and trust
business with the Seller, the Servicer, the Depositor or their Affiliates with
the same rights as it would have if it were not Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for all services rendered by the Trustee
in the exercise and performance of any of the powers and duties hereunder,
shall be entitled to withdraw from the Distribution Account on each
Distribution Date an amount equal to the Trustee Fee for such Distribution
Date. The Trust Fund shall pay or reimburse the Trustee upon request on any
Distribution Date for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Agreement in respect of which the Trustee has not been previously
reimbursed (including but not limited to Section 7.01 and Section 8.02(e)
hereof and including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith or which is the responsibility of Certificateholders
or the Trustee hereunder. On each such Distribution Date, the Servicer shall
withdraw from the Collection Account the amount of such payment or
reimbursement for such Distribution Date and remit such amounts to the
Trustee. In addition, the Seller and the Servicer covenant and agree to
indemnify the Trustee and its officers, directors, employees and agents from,
and hold it harmless against, any and all losses, liabilities, damages, claims
or expenses incurred in connection with any legal action relating to this
Agreement, the Trust Fund or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or negligence
of the Trustee in the performance of its duties hereunder or by reason of the
Trustee's reckless disregard of obligations and duties hereunder. This section
shall survive termination of this Agreement or the resignation or removal of
the Trustee hereunder.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an entity duly organized
and validly existing under the laws of the United States of America or any
state thereof, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and a minimum
long-term debt rating of BBB by S&P and Ba2 by Moody's, and in one of the two
highest short-term rating categories of both S&P and Moody's, and subject to
supervision or examination by federal or state authority. If such entity
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06, the combined capital and surplus of such entity
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The principal office of the
Trustee (other than the initial Trustee) shall be in a state with respect to
which an Opinion of Counsel has been delivered to such Trustee at the time
such Trustee is appointed Trustee to the effect that the Trust will not be a
taxable entity under the laws of such state. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07 hereof.
SECTION 8.07. Resignation or Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Seller,
the Servicer and the Rating Agencies. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof or if at any time the Trustee shall
be legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Depositor or the Servicer may remove the Trustee. If the Depositor or the
Servicer removes the Trustee under the authority of the immediately preceding
sentence, the Servicer shall promptly appoint a successor Trustee, with the
consent of the Depositor, which consent shall not be unreasonably withheld, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
The Majority Certificateholders may at any time remove the Trustee by
written instrument or instruments delivered to the Servicer, the Depositor and
the Trustee; the Servicer, with the consent of the Depositor, which consent
shall not be unreasonably withheld, shall thereupon use its best efforts to
appoint a successor trustee in accordance with this Section.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee
as provided in Section 8.08 hereof.
SECTION 8.08. Successor Trustee.
Any successor Trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor, the Seller, the
Servicer and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective, and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as Trustee. The Depositor, the Seller,
the Servicer and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 8.06 hereof and the
appointment of such successor Trustee shall not result in a downgrading of the
Senior Certificates by either Rating Agency, as evidenced by a letter from
each Rating Agency.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, the successor Trustee shall mail notice of the appointment
of a successor Trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to each Rating Agency.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided such entity shall be eligible under the
provisions of Section 8.06 and 8.08 hereof, without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust or any Mortgaged Property may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons, with the
consent of the Depositor, which consent shall not be unreasonably withheld,
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Servicer and the Trustee
may consider necessary or desirable. Any such co-trustee or separate trustee
shall be subject to the written approval of the Servicer. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by
it of a request to do so, or in the case of a Servicer Event of Termination
shall have occurred and be continuing with respect to the Servicer, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereof, and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08 hereof.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to
be performed (whether as Trustee hereunder or as successor to the
Servicer hereunder), the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Servicer and the Trustee, acting jointly, may at any
time accept the resignation of or remove any separate trustee or
co-trustee, except that if a Servicer Event of Termination shall
have occurred and be continuing with respect to the Servicer, the
Trustee acting alone may accept the resignation or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Depositor and the Servicer.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
SECTION 8.11. Limitation of Liability.
The Certificates are executed by the Trustee, not in its individual
capacity but solely as Trustee of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the
undertakings and agreements made on the part of the Trustee in the
Certificates is made and intended not as a personal undertaking or agreement
by the Trustee but is made and intended for the purpose of binding only the
Trust.
SECTION 8.12. Trustee May Enforce Claims Without Possession of
Certificates.
(a) All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee
shall be brought in its own name or in its capacity as Trustee for the benefit
of all Holders of such Certificates, subject to the provisions of this
Agreement. Any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursement and advances of the
Trustee, its agents and counsel, be for the ratable benefit or the
Certificateholders in respect of which such judgment has been recovered.
(b) The Trustee shall afford the Seller, the Depositor, the Servicer
and each Certificateholder upon reasonable notice during normal business hours
at its Corporate Trust Office or other office designated by the Trustee,
access to all records maintained by the Trustee in respect of its duties
hereunder and access to officers of the Trustee responsible for performing
such duties. Upon request, the Trustee shall furnish the Depositor, the
Servicer and any requesting Certificateholder with its most recent audited
financial statements. The Trustee shall cooperate fully with the Seller, the
Servicer, the Depositor and such Certificateholder and shall, subject to the
first sentence of this Section 8.12(b), make available to the Seller, the
Servicer, the Depositor and such Certificateholder for review and copying such
books, documents or records as may be requested with respect to the Trustee's
duties hereunder. The Seller, the Depositor, the Servicer and the
Certificateholders shall not have any responsibility or liability for any
action or failure to act by the Trustee and are not obligated to supervise the
performance of the Trustee under this Agreement or otherwise.
SECTION 8.13. Suits for Enforcement.
In case a Servicer Event of Termination or other default by the
Servicer or the Depositor hereunder shall occur and be continuing, the Trustee
may proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution
of any power granted in this Agreement or for the enforcement of any other
legal, equitable or other remedy, as the Trustee, being advised by counsel,
and subject to the foregoing, shall deem most effectual to protect and enforce
any of the rights of the Trustee and the Certificateholders.
SECTION 8.14. Waiver of Bond Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee post a bond or other surety with any
court, agency or body whatsoever.
SECTION 8.15. Waiver of Inventory, Accounting and Appraisal
Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
SECTION 8.16. Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or
more custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee, by entering into a Custodial Agreement. The custodian may at any
time be terminated by the Servicer or may resign, in each case upon 60 days'
notice to the Trustee, and a substitute custodian appointed therefor with the
consent of the Trustee, which consent shall not be unreasonably withheld.
Subject to this Article VIII, the Trustee agrees to comply with the terms of
each Custodial Agreement and to enforce the terms and provisions thereof
against the custodian for the benefit of the Certificateholders having an
interest in any Mortgage File held by such custodian. Each custodian shall be
a depository institution or trust company subject to supervision by federal or
state authority, shall have combined capital and surplus of at least
$15,000,000 and shall be qualified to do business in the jurisdiction in which
it holds any Mortgage File. The Servicer shall pay from its own funds, without
any right to reimbursement, the fees, costs and expenses of each custodian
(including the costs of custodian's counsel).
SECTION 8.17. Put and Call.
(a) During the Option Period, each Holder or, in respect of a
Certificate which is a Book-Entry Certificate, each Certificate Owner, of a
Certificate (other than a Class X or Class A-R Certificate), may exercise the
related Put Option by written notice to the Trustee or, to the extent that
such Certificate is a Book-Entry Certificate, to the Depository. Any such
written notice by a Holder or Certificate Owner to the Trustee must be
substantially in the form of the Put Option Notice and must be made at the
Corporate Trust Office of the Trustee. Any exercise by such Holder or
Certificate Owner of the related Put Option shall be void and without effect
unless, at all times during the period beginning on the date of such exercise
to and including the Put and Call Date, such Holder or Certificate Owner is
the beneficial owner of the relevant interest or interests in such
Certificate. Except as provided in the immediately preceding sentence, notice
by any such Holder or Certificate Owner of the exercise of the related Put
Option shall be irrevocable.
(b) Upon the exercise by Holders of the Class A-1 and Class A-2
Certificates of the Put Options in respect of more than 90% of the aggregate
outstanding Certificate Principal Balance of the Class A-1 and Class A-2
Certificates, the Standby Purchaser may exercise its related Optional Call
during the period commencing on the Business Day following the end of the
Option Period and ending on the day which is ten days prior to the Put and
Call Date by providing written notice to the Trustee during such period in
substantially the form of the Optional Call Notice; provided, however, that
such Optional Call shall be exercisable by the Standby Purchaser only with
respect to all, but no fewer than all, of the Class A-1 and Class A-2
Certificates in respect of which the related Put Options were not exercised
during the Option Period. Notice by the Standby Purchaser of the exercise of
the Optional Call shall be irrevocable.
(c) Upon the exercise by Holders of the Subordinate Certificates of
the Put Options in respect of more than 90% of the aggregate outstanding
Certificate Principal Balance of the Subordinate Certificates, the Standby
Purchaser may exercise its related Optional Call during the period commencing
on the Business Day following the end of the Option Period and ending on the
day which is ten days prior to the Put and Call Date by providing written
notice to the Trustee during such period in substantially the form of the
Optional Call Notice; provided, however, that such Optional Call shall be
exercisable by the Standby Purchaser only with respect to all, but no fewer
than all, of the Subordinate Certificates in respect of which the related Put
Options were not exercised during the Option Period. Notice by the Standby
Purchaser of the exercise of the Optional Call shall be irrevocable.
(d) At the end of the Option Period, based on information obtained by
the Trustee from the Depository with respect to Book-Entry Certificates, if
applicable, the Trustee shall notify the Standby Purchaser in writing, in a
manner consistent with the notification requirements of Section 10 of the Put
and Call Agreement, of the number of Certificateholders or Certificate Owners,
as applicable, who have exercised their respective Put Options and the
Percentage Interest of the Class Certificate Principal Balance of each such
Class held by such Certificateholders or Certificate Owners, as applicable.
(e) At least ten days prior to the Put and Call Date, the Trustee
shall, in a manner consistent with the notification requirements of Section
10.01(b), notify the Holder and the Depository of each Certificate as to which
the related Optional Call has been properly exercised by the Standby Purchaser
under Sections 8.17(b) and (c) of this Agreement and otherwise in accordance
with the Put and Call Agreement.
(f) Pursuant to Section 6(a) of the Put and Call Agreement, the
Standby Purchaser has agreed to deposit into the Distribution Account (by wire
transfer in immediately available funds to the Trustee), no later than one (1)
Business Day prior to the Put and Call Date, the Put and Call Purchase Price
for each Certificate for which the related Put Option has been exercised and
each Optional Call Interest in respect of which the Standby Purchaser has
exercised the related Optional Call. On the Put and Call Date, with respect to
each Certificate for which the related Put Option was exercised and each
Optional Call Interest for which the Optional Call was exercised, provided
that the Standby Purchaser shall have deposited the applicable Put and Call
Purchase Price into the Distribution Account on the Put and Call Date, the
Trustee shall withdraw from the Distribution Account the applicable Put and
Call Purchase Price and distribute it to the related Certificateholder by wire
transfer in immediately available funds for the account of such
Certificateholder, or by any other means of payment as specified by such
Certificateholder and at the address of such Holder appearing in the
Certificate Register, provided that such payment shall only be made after
presentation and surrender of the Certificate if the Certificates are no
longer Book-Entry Certificates. Subject to Section 8.02(c) hereof, the
Trustee, at the direction of any Certificateholder or Certificate Owner who
shall have exercised its Put Option, shall enforce the obligations of the
Standby Purchaser set forth in this Section 8.17.
(g) With respect to each Book-Entry Certificate in respect of which
the related Put Option has been exercised, or for which the Standby Purchaser
has exercised the related Optional Call, and, in each case, provided that the
Standby Purchaser shall have deposited the applicable Put and Call Purchase
Price into the Distribution Account on the Put and Call Date, the transfer of
each applicable Certificate Owner's interest in such Book-Entry Certificate to
the Standby Purchaser, as Certificate Owner, shall be effected by the
applicable Depository Participant (or the applicable indirect participant in
the Depository, as the case may be) upon notice by the Trustee. Upon such
transfer, the Certificate Owner of such Book-Entry Certificate prior to such
exercise of the related Put Option or Optional Call, as the case may be, shall
cease to hold its interest in such Book-Entry Certificate on or after the Put
and Call Date.
(h) Notwithstanding any provision herein to the contrary, with
respect to each Definitive Certificate in respect of which the related Put
Option has been exercised, or for which the Standby Purchaser has exercised
the related Optional Call, and, in each case, provided that the Standby
Purchaser shall have deposited the applicable Put and Call Purchase Price into
the Distribution Account on the Put and Call Date, the Holder of such
Definitive Certificate prior to such exercise of the related Put Option or
Optional Call, as the case may be, shall be deemed to have surrendered such
Definitive Certificate to the Certificate Registrar for transfer to the
Standby Purchaser. On such Put and Call Date, the Trustee shall cause the
Certificate Registrar to note in the Certificate Register the registration of
the transfer of such Definitive Certificate to the Standby Purchaser, and the
Standby Purchaser shall be recognized as the Record Holder of such Definitive
Certificate. Each Holder of a Certificate (other than a Class X or Class A-R
Certificate) is deemed, by acceptance of any such Certificate, to acknowledge
and accept the provisions of this Section 8.17(h).
(i) The Trustee shall treat each Put Option and Optional Call as
contractual rights combined with a regular interest within the meaning of
Treasury regulation ss. 1.860G-2(i) and will account for each Put Option and
Optional Call separately from the corresponding Certificate.
ARTICLE IX
REMIC ADMINISTRATION
SECTION 9.01. REMIC Administration.
(a) As set forth in the Preliminary Statement to this Agreement, two
REMIC elections shall be made by the Trustee on Form 1066 or other appropriate
federal tax or information return for the taxable year ending on the last day
of the calendar year in which the Certificates are issued. The regular
interests in each REMIC and the related residual interest shall be as
designated in the Preliminary Statement. Following the Closing Date, the
Trustee shall apply to the IRS for an employer identification number for each
REMIC created hereunder by means of a Form SS-4 or other acceptable method,
and shall timely complete and file a Form 8811.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC created hereunder within the meaning of section 86OG(a)(9) of the
Code.
(c) Except as provided in subsection (d) of this Section 9.01, the
Seller shall pay any and all tax related expenses (not including taxes) of
each REMIC created hereunder, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial
proceedings with respect to such REMIC that involve the Internal Revenue
Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Seller in fulfilling its duties
hereunder (including its duties as tax return preparer). The Seller shall be
entitled to reimbursement of expenses referred to in clause (i) above from the
Collection Account.
(d) The Trustee shall prepare, sign and file, all of the federal and
state tax and information returns of each REMIC created hereunder as the
direct representative. The expenses of preparing and filing such returns shall
be borne by the Trustee.
(e) The Holder of the Class A-R Certificate at any time holding the
largest Percentage Interest thereof shall be the "tax matters person" as
defined in the REMIC Provisions (the "Tax Matters Person") with respect to
each REMIC created hereunder and shall act as Tax Matters Person for each such
REMIC. The Trustee, as agent for the Tax Matters Person, shall perform on
behalf of each REMIC created hereunder all reporting and other tax compliance
duties that are the responsibility of each such REMIC under the Code, the
REMIC Provisions or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Among its other duties, if
required by the Code, the REMIC Provisions or other such guidance, the
Trustee, as agent for the Tax Matters Person, shall provide (i) to the
Treasury or other governmental authority such information as is necessary for
the application of any tax relating to the Transfer of the Class A-R
Certificate to any disqualified person or organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(f) The Trustee (to the extent that the affairs of the REMICs are
within its control and the scope of its specific responsibilities under the
Agreement), the Servicer and the Holders of Certificates shall take any action
or cause any REMIC created hereunder to take any action necessary to create or
maintain the status of each REMIC created hereunder as a REMIC under the REMIC
Provisions and shall assist each other as necessary to create or maintain such
status. Neither the Trustee, the Servicer nor the Holder of the Class A-R
Certificate shall take any action, cause any REMIC created hereunder to take
any action or fail to take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as the case may be, could
(i) endanger the status of any REMIC created hereunder as a REMIC or (ii)
result in the imposition of a tax upon any REMIC created hereunder (including
but not limited to the tax on prohibited transactions as defined in Code
Section 860F(a)(2) and the tax on prohibited contributions set forth on
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee and the Servicer have received an Opinion of Counsel (at
the expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition
of such a tax. In addition, prior to taking any action with respect to any
REMIC created hereunder or the assets therein, or causing any such REMIC to
take any action which is not expressly permitted under the terms of this
Agreement, any Holder of the Class A-R Certificate will consult with the
Trustee and the Servicer, or their respective designees, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur
with respect to any such REMIC, and no such Person shall take any such action
or cause any REMIC created hereunder to take any such action as to which the
Trustee or the Servicer has advised it in writing that an Adverse REMIC Event
could occur.
(g) Each Holder of the Class A-R Certificate shall pay when due any
and all taxes imposed on each REMIC created hereunder by federal or state
governmental authorities. To the extent that such Trust taxes are not paid by
the Class A-R Certificateholder, the Trustee shall pay any remaining REMIC
taxes out of current or future amounts otherwise distributable to the Holder
of the Class A-R Certificate or, if no such amounts are available, out of
other amounts held in the Distribution Account, and shall reduce amounts
otherwise payable to holders of regular interests in each such REMIC, as the
case may be.
(h) The Trustee, as agent for the Tax Matters Person, shall, for
federal income tax purposes, maintain books and records with respect to each
REMIC created hereunder on a calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC
created hereunder, except as expressly provided in this Agreement with respect
to Qualified Substitute Mortgage Loans.
(j) 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.
SECTION 9.02. Prohibited Transactions and Activities.
None of the Depositor, the Servicer and the Trustee shall sell,
dispose of, or substitute for any of the Mortgage Loans, except in a
disposition pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of any REMIC created
hereunder pursuant to Article X of this Agreement, (iv) a substitution
pursuant to Article II or Section 3.16 of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC created hereunder, nor sell or dispose of any investments
in the Distribution Account for gain, nor accept any contributions to any
REMIC created hereunder after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition,
substitution, or acceptance will not (a) affect adversely the status of any
REMIC created hereunder as a REMIC or of the interests therein other than the
Class A-R Certificate as the "residual interest" therein, (b) affect the
distribution of interest or principal on the Certificates, (c) result in the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement) or (d) cause any REMIC created
hereunder to be subject to a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
SECTION 9.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status.
In the event that any REMIC created hereunder fails to qualify as a
REMIC, lose its status as a REMIC, or incurs federal, state or local taxes as
a result of a prohibited transaction or prohibited contribution under the
REMIC Provisions due to the negligent performance by the Servicer of its
duties and obligations set forth herein, the Servicer shall indemnify the
Holder of the Class A-R Certificate against any and all losses, claims,
damages, liabilities or expenses ("Losses") resulting from such negligence;
provided, however, that the Servicer shall not be liable for any such Losses
attributable to the action or inaction of the Trustee, the Depositor or the
Holder of Class A-R Certificate, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of the Class A-R
Certificate on which the Servicer has relied. The foregoing shall not be
deemed to limit or restrict the rights and remedies of the Holder of the Class
A-R Certificate now or hereafter existing at law or in equity. Notwithstanding
the foregoing, however, in no event shall any Servicer have any liability (1)
for any action or omission that is taken in accordance with and in compliance
with the express terms of, or which is expressly permitted by the terms of,
this Agreement, (2) for any Losses other than arising out of a negligent
performance by the Servicer of its duties and obligations set forth herein,
and (3) for any special or consequential damages to Certificateholders (in
addition to payment of principal and interest on the Certificates).
SECTION 9.04. REO Property.
(a) Notwithstanding any other provision of this Agreement, the
Servicer, acting on behalf of the Trustee hereunder, shall not, and shall not
permit any Subservicer to, rent, lease, or otherwise earn income on behalf of
any REMIC created hereunder with respect to any REO Property that might cause
such REO Property to fail to qualify as "foreclosure" property within the
meaning of section 860G(a)(8) of the Code or result in the receipt by such
REMIC of any "income from non-permitted assets" within the meaning of section
860F(a)(2) of the Code or any "net income from foreclosure property" that is
subject to tax under the REMIC Provisions unless the Servicer has obtained an
Opinion of Counsel (a copy of which shall be delivered to the Trustee) to the
effect that, under the REMIC Provisions, such action would not adversely
affect the status of any REMIC created hereunder as a REMIC and any income
generated for such REMIC by the REO Property would not result in the
imposition of a tax upon such REMIC.
(b) The Servicer shall make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Servicer shall
dispose of any REO Property within three years of its acquisition by the Trust
Fund unless the Servicer on behalf of the Trust Fund has received a grant of
extension (a copy of which shall be provided to the Trustee) from the Internal
Revenue Service to the effect that, under the REMIC Provisions and any
relevant proposed legislation and under applicable state law, the REMIC may
hold REO Property for a longer period without adversely affecting such REMIC
status of any REMIC created hereunder or causing the imposition of a federal
or state tax upon such REMIC. If the Servicer has received such an extension,
then the Servicer shall continue to attempt to sell the REO Property for its
fair market value for such period longer than three years as such extension
permits (the "Extended Period"). If the Servicer has not received such an
extension and the Servicer is unable to sell the REO Property within 33 months
after its acquisition by the Trust Fund or if the Servicer has received such
an extension, and the Servicer is unable to sell the REO Property within the
period ending three months before the close of the Extended Period, the
Servicer shall before the end of the three year period or the Extended Period,
as applicable, (i) purchase such REO Property at a price equal to the REO
Property's fair market value or (ii) auction the REO Property to the highest
bidder (which may be the Servicer) in an auction reasonably designed to
produce a fair price prior to the expiration of the three-year period or the
Extended Period, as the case may be.
ARTICLE X
TERMINATION
SECTION 10.01. Termination.
(a) The respective obligations and responsibilities of the Seller,
the Servicer, the Depositor and the Trustee created hereby (other than the
obligation of the Trustee to make certain payments to Certificateholders after
the final Distribution Date and the obligation of the Servicer to send certain
notices as hereinafter set forth) shall terminate upon notice to the Trustee
upon the earliest of (i) the Distribution Date on which the Class Certificate
Principal Balance of each Class of Certificates has been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan, (iii) the
optional purchase by the Servicer of the Mortgage Loans as described below and
(iv) the Latest Possible Maturity Date. Notwithstanding the foregoing, in no
event shall the trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James's,
living on the date hereof.
The Servicer may, at its option, terminate this Agreement on any date
on which the aggregate of the Principal Balances of the Mortgage Loans on such
date is 10% or less of the aggregate of the Cut-Off Date Principal Balance of
the Mortgage Loans, by purchasing, on the next succeeding Distribution Date,
all of the outstanding Mortgage Loans and REO Properties at a price equal to
the sum of (i) the outstanding Stated Principal Balances of the Mortgage Loans
(other than in respect of REO Properties), (ii) the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Depositor
at the expense of the Depositor and (y) the Stated Principal Balance of each
Mortgage Loan related to any REO Property and (iii) in all cases, accrued and
unpaid interest thereon at the weighted average of the Net Loan Rates through
the end of the Due Period preceding the final Distribution Date, plus
unreimbursed Servicing Advances and any unpaid Servicing Fees allocable to
such Mortgage Loans and REO Properties (the "Termination Price").
In connection with any such purchase pursuant to the preceding
paragraph, the Servicer shall deposit in the Distribution Account all amounts
then on deposit in the Collection Account, which deposit shall be deemed to
have occurred immediately preceding such purchase.
(b) Notice of any termination pursuant to the second paragraph of
Section 10.01(a), specifying the Distribution Date (which shall be a date that
would otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon the
Trustee receiving notice of such date from the Servicer, by letter to the
Certificateholders mailed not earlier than the 15th day and not later than the
25th day of the month immediately preceding the month of such final
distribution specifying (1) the Distribution Date upon which final
distribution of the Certificates will be made upon presentation and surrender
of such Certificates at the Corporate Trust Office of the Trustee, (2) the
amount of any such final distribution and (3) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being
made only upon presentation and surrender of the Certificates at the Corporate
Trust Office of the Trustee.
(c) Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed to
such Holders in accordance with the provisions of Section 4.01 hereof for such
Distribution Date.
(d) In the event that all Certificateholders shall not surrender
their Certificates for final payment and cancellation on or before such final
Distribution Date, the Trustee shall promptly following such date cause all
funds in the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate account for the
benefit of such Certificateholders, and the Trustee shall give a second
written notice to the remaining Certificateholders, to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within nine months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Class A-R
Certificateholder shall be entitled to all unclaimed funds and other assets
which remain subject hereto, and the Trustee upon transfer of such funds shall
be discharged of any responsibility for such funds, and the Certificateholders
shall look to the Class A-R Certificateholder for payment.
SECTION 10.02. Additional Termination Requirements.
(a) In the event that the Servicer exercises its purchase option as
provided in Section 10.01, the Trust shall be terminated in accordance with
the following additional requirements, unless the Trustee shall have been
furnished with an Opinion of Counsel to the effect that the failure of the
Trust to comply with the requirements of this Section will not (i) result in
the imposition of taxes on "prohibited transactions" of the Trust as defined
in Section 860F of the Code or (ii) cause the REMIC constituting the Trust
Fund to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) within 90 days prior to the final Distribution Date, the
Trustee shall adopt and sign a plan of complete liquidation of the
REMIC meeting the requirements of a "Qualified Liquidation" under
Section 860F of the Code and any regulations thereunder;
(ii) at or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date,
the Trustee shall sell all of the assets of the Trust to the
Servicer for cash pursuant to the terms of the plan of complete
liquidation; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited to the Holders of each Class of the
Certificates, the related Class Certificate Principal Balance of the
Class, plus one month's interest thereon at the applicable
Pass-Through Rate, and the Trust shall terminate at such time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to appoint the Trustee as their attorney in fact to: (i) adopt such a
plan of complete liquidation (and the Certificateholders hereby appoint the
Trustee as their attorney in fact to sign such plan) as appropriate and (ii)
to take such other action in connection therewith as may be reasonably
required to carry out such plan of complete liquidation all in accordance with
the terms hereof.
ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment.
This Agreement may be amended from time to time by the Seller, the
Depositor, the Servicer and the Trustee; and without the consent of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement
any provisions herein which may be defective or inconsistent with any other
provisions herein or (iii) to make any other provisions with respect to
matters or questions arising under this Agreement, which shall not be
inconsistent with the provisions of this Agreement; provided, however, that
any such action listed in clause (i) through (iii) above shall be deemed not
to adversely affect in any material respect the interests of any
Certificateholder, if evidenced by (a)(i) written notice to the Depositor, the
Seller, the Servicer and the Trustee from the Rating Agencies that such action
will not result in the reduction or withdrawal of the rating of any
outstanding Class of Certificates with respect to which it is a Rating Agency
and (ii) receipt of an Officer's Certificate of the party requesting such
Amendment confirming that such action will not adversely affect in any respect
the interests of any Certificateholder or (b) an Opinion of Counsel delivered
to the Servicer and the Trustee to the effect that such action will not
adversely affect in any respect the interests of any Certificateholder and is
authorized and permitted pursuant to this Agreement.
In addition, this Agreement may be amended from time to time by the
Seller, the Depositor, the Servicer and the Trustee with the consent of the
Majority Certificateholders for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates;
provided, however, that no such amendment or waiver shall (x) reduce in any
manner the amount of, or delay the timing of, payments on the Certificates
that are required to be made on any Certificate without the consent of the
Holder of such Certificate, (y) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than
as described in clause (x) above, without the consent of the Holders of
Certificates of such Class evidencing at least a 66% Percentage Interest in
such Class, or (z) reduce the percentage of Voting Rights required by clause
(y) above without the consent of the Holders of all Certificates of such Class
then outstanding. Upon approval of an amendment, a copy of such amendment
shall be sent to the Rating Agencies.
Notwithstanding any provision of this Agreement to the contrary, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel, delivered by and at the expense of
the Person seeking such Amendment (unless such Person is the Trustee, in which
case the Trustee shall be entitled to be reimbursed for such expenses by the
Trust pursuant to Section 8.05 hereof), to the effect that such amendment will
not result in the imposition of a tax on any REMIC created hereunder pursuant
to the REMIC Provisions or cause any REMIC created hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding and that
the amendment is being made in accordance with the terms hereof.
Promptly after the execution of any such amendment the Trustee shall
furnish, at the expense of the Person that requested the amendment if such
Person is the Seller or the Servicer (but in no event at the expense of the
Trustee), otherwise at the expense of the Trust, a copy of such amendment and
the Opinion of Counsel referred to in the immediately preceding paragraph to
the Servicer and the Rating Agencies.
It shall not be necessary for the consent of Certificateholders under
this Section 12.01 to approve the particular form of any proposed amendment;
instead it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this 12.01 Section that affects its rights, duties and
immunities under this Agreement or otherwise.
SECTION 12.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Servicer
at the expense of the Trust, but only upon direction of Certificateholders
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall together constitute
but one and the same instrument.
SECTION 12.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not (i)
operate to terminate this Agreement or the Trust, (ii) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
the Trust or (iii) otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
Except as expressly provided for herein, no Certificateholder shall
have any right to vote or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third person by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 15 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more
Holders of Certificates shall have any right in any manner whatever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights
of the Holders of any other of such Certificates, or to obtain or seek to
obtain priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 12.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 12.04. Governing Law; Jurisdiction.
This Agreement shall be construed in accordance with the laws of the
State of New York, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws. With respect to
any claim arising out of this Agreement, each party irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in The City of New
York, and each party irrevocably waives any objection which it may have at any
time to the laying of venue of any suit, action or proceeding arising out of
or relating hereto brought in any such courts, irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in any inconvenient forum and further irrevocably waives the right to
object, with respect to such claim, suit, action or proceeding brought in any
such court, that such court does not have jurisdiction over such party,
provided that service of process has been made by any lawful means.
SECTION 12.05. Notices.
All directions, demands, notices, consents, waivers, authorizations
and communications hereunder shall be in writing and shall be deemed to have
been duly given if sent by facsimile, personally delivered at or mailed by
first class mail, postage prepaid, or by express delivery service, to (a) in
the case of the Seller, to Fifth Third Mortgage Company, c/o Fifth Third Bank,
38 Fountain Square Plaza, Cincinnati, Ohio 45263, Attention: General Counsel
(telecopy number 513-744-6757) or such other address or telecopy number as may
hereafter be furnished to the Depositor, the Trustee and the Servicer in
writing by the Seller, (b) in the case of the Servicer, to Fifth Third Bank,
38 Fountain Square Plaza, Cincinnati, Ohio 45263, Attention: General Counsel
(telecopy number 513-744-6757), or such other address or telecopy number as
may hereafter be furnished to the Seller, the Depositor and the Trustee in
writing by the Servicer, (c) in the case of the Trustee, to The Chase
Manhattan Bank, 450 West 33rd Street, 14th Floor, New York, New York
10001-2697, Attention: Capital Markets Fiduciary Services, Fifth Third Bank,
Series 2000-FTB1 (telecopy number 212-946-8191) or such other address or
telecopy number as may hereafter be furnished to the Depositor, the Seller and
the Servicer in writing by the Trustee, and (d) in the case of the Depositor,
to Greenwich Capital Acceptance, Inc., 600 Steamboat Road, Greenwich,
Connecticut 06830, Attention: Legal (telecopy number (203) 618-2132), or such
other address or telecopy number as may be furnished to the Seller, the
Servicer and the Trustee in writing by the Depositor. Any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Notice of any Servicer Event of Termination shall be
given by telecopy and by certified mail. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have duly been
given when mailed, whether or not the Certificateholder receives such notice.
A copy of any notice required to be telecopied hereunder shall also be mailed
to the appropriate party in the manner set forth above.
SECTION 12.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 12.07. Article and Section References.
All article and section references used in this Agreement, unless
otherwise provided, are to articles and sections in this Agreement.
SECTION 12.08. Notice to the Rating Agencies.
(a) Each of the Trustee and the Servicer shall be obligated to use
its best reasonable efforts promptly to provide notice to the Rating Agencies
with respect to each of the following of which a Responsible Officer of the
Trustee or the Servicer, as the case may be, has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Servicer Event of Termination that
has not been cured or waived;
(iii) the resignation or termination of the Servicer or the
Trustee;
(iv) the final payment to Holders of the Certificates of any
Class;
(v) any change in the location of any Account; and
(vi) if the Trustee is acting as the successor Servicer
pursuant to Section 7.02 hereof, any event that would result in the
inability of the Trustee to make Advances.
(b) The Servicer shall promptly furnish to each Rating Agency copies
of the following:
(i) each annual statement as to compliance described in Section
3.20 hereof;
(ii) each annual independent public accountants' servicing
report described in Section 3.21 hereof; and
(iii) each notice delivered pursuant to Section 7.01(a) hereof
which relates to the fact that the Servicer has not made an Advance.
Any such notice pursuant to this Section 12.08 shall be in writing
and shall be deemed to have been duly given if personally delivered or mailed
by first class mail, postage prepaid, or by express delivery service to
Standard & Poor's Ratings Services, 55 Water Street, New York, New York 10041
and to Moody's Investor Service Inc., 99 Church Street, New York, New York
10007.
SECTION 12.09. Further Assurances.
Notwithstanding any other provision of this Agreement, neither the
Regular Certificateholders nor the Trustee shall have any obligation to
consent to any amendment or modification of this Agreement unless they have
been provided reasonable security or indemnity against their out-of-pocket
expenses (including reasonable attorneys' fees) to be incurred in connection
therewith.
SECTION 12.10. Benefits of Agreement.
Nothing in this Agreement or in the Certificates, expressed or
implied, shall give to any Person, other than the Certificateholders and the
parties hereto and their successors hereunder, any benefit or any legal or
equitable right, remedy or claim under this Agreement.
SECTION 12.11. Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by the
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or
by agent duly appointed in writing, and such action shall become effective
when such instrument or instruments are delivered to the Trustee, the Seller
and each Servicer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "act"
of the Certificateholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and conclusive in favor
of the Trustee and the Trust, if made in the manner provided in this Section
12.11.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Whenever such execution is by a signer acting in a capacity other than his or
her individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by any Certificateholder shall bind every future Holder
of such Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee or
the Trust in reliance thereon, whether or not notation of such action is made
upon such Certificate.
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Seller, the Servicer and the
Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
FIFTH THIRD MORTGAGE COMPANY,
as Seller
By: /s/ James R. Hubbard
-------------------------
Name: James R. Hubbard
Title: Vice President
GREENWICH CAPITAL ACCEPTANCE, INC.,
as Depositor
By: /s/ John Graham
--------------------------
Name: John Graham
Title: Vice President
FIFTH THIRD BANK,
as Servicer
By: /s/ James R. Hubbard
---------------------------
Name: James R. Hubbard
Title: Vice President
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Kimberly K. Costa
-----------------------------
Name: Kimberly K. Costa
Title: Vice President
<PAGE>
STATE OF CONNECTICUT )
) ss.:
COUNTY OF FAIRFIELD )
On the 19 day of December 2000, before me, a notary public in and for
said State, personally appeared John Paul Graham known to me to be a Vice
President of Greenwich Capital Acceptance, Inc., a Delaware corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Deborah McMahon
---------------------
Deborah McMahon
Notary Public
My Commission Expires on
2/28/2004
<PAGE>
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the 20 day of December 2000, before me, a notary public in and for
said State, personally appeared James Hubbard known to me to be a Vice
President of Fifth Third Mortgage Company, an Ohio corporation that executed
the within instrument, and also known to me to be the person who executed it
on behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Therese Marie Paul
----------------------
Therese Marie Paul Attorney at Law
Notary Public, State of Ohio
My Commission has no Expiration Date
Section 147.03
<PAGE>
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the 20th day of December 2000, before me, a notary public in and
for said State, personally appeared James Hubbard known to me to be a Vice
President of Fifth Third Bank, an Ohio banking corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Therese Marie Paul
-------------------------
Therese Marie Paul Attorney at Law
Notary Public, State of Ohio
My Commission has no Expiration Date
Section 147.03
Notary Public
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the __ day of December 2000, before me, a notary public in and for
said State, personally appeared ______________ known to me to be a
______________ of The Chase Manhattan Bank, a New York banking corporation
that executed the within instrument, and also known to me to be the person who
executed it on behalf of 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
B&W Draft
December 20, 2000
EXHIBIT A
FORM OF CLASS A CERTIFICATE
CLASS A-[ ] CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
Certificate No. : [ ]
Cut-Off Date : [ ]
First Distribution Date : [ ]
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[ ]
Original Class Certificate
Principal Balance of this
Class : $[ ]
Percentage Interest : [ ]%
Pass-Through Rate : [ ]
CUSIP : [ ]
Class : [ ]
Assumed Final Distribution Date : [ ]
<PAGE>
Fifth Third Bank Mortgage Loan Trust 2000-FTB1,
Mortgage Pass-Through Certificates, Series 2000-FTB1
Class A-[ ]
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of first lien adjustable rate mortgage
loans (the "Mortgage Loans") purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of this
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by the Depositor, the Seller, the Servicer or the Trustee referred to below or
any of their respective affiliates.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Greenwich Capital Acceptance,
Inc. (the "Depositor"). The Trust was created pursuant to a Pooling and
Servicing Agreement dated as of December 1, 2000 (the "Agreement") among the
Depositor, Fifth Third Mortgage Company, as seller (the "Seller"), Fifth Third
Bank, as servicer ("Fifth Third"), and The Chase Manhattan Bank, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate also incorporates the terms, provisions and
conditions of the Put and Call Agreement, dated as of December 1, 2000 (the
"Put and Call Agreement"), between Fifth Third Bank, as put provider and call
holder (the "Standby Purchaser") and the Trustee, to which agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
The Holder of this Certificate has the right (the "Put Option"),
during the five Business Day period (the "Option Period") ending at 5:00 p.m.,
New York City time, on the Distribution Date in August 2002, to require the
Standby Purchaser to purchase all or part of this Certificate. Upon the
exercise of the foregoing right by the Holder of this Certificate, the Standby
Purchaser shall be required to so purchase all or a part of this Certificate,
as applicable, on the Distribution Date in September 2002 (the "Put and Call
Date"). Upon the exercise by Holders of more than 90% of the aggregate Class
Certificate Principal Balance of the Class A-1 and Class A-2 Certificates, the
Standby Purchaser has the right (the "Optional Call") to purchase all, but not
fewer than all, of the Class A-1 and Class A-2 Certificates in respect of
which the related Put Options have not been exercised, including this
Certificate.
During the Option Period, the Holder and each Certificate Owner of
this Certificate may exercise the related Put Option by delivering a written
notice to the Trustee and, to the extent that this Certificate is still a
Book-Entry Certificate, to the Depository. Any such written notice delivered
to the Trustee by the Holder of this Certificate must be substantially in the
form of the notice attached as Exhibit N to the Agreement (the "Put Option
Notice") and must be made at the Corporate Trust Office of the Trustee. Any
exercise by the Holder or a Certificate Owner of this Certificate of the
related Put Option shall be void and without effect unless, at all times
during the period beginning on the date of such exercise to and including the
Put and Call Date, such Holder or Certificate Owner is the beneficial owner of
the relevant interest or interests in this Certificate.
Under the Put and Call Agreement, the Standby Purchaser has agreed to
purchase this Certificate to the extent to which the related Put Option has
been properly exercised. The Holder and each Certificate Owner of this
Certificate, by its acceptance of this Certificate or its beneficial interest
herein, as applicable, agrees, upon exercise by the Standby Purchaser of the
Optional Call in respect of this Certificate or such interest, to sell this
Certificate or such interest, as the case may be, to the Standby Purchaser on
the Put and Call Date.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
<PAGE>
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: December 21, 2000
FIFTH THIRD BANK MORTGAGE LOAN TRUST 2000-FTB1
By: THE CHASE MANHATTAN BANK,
not in its individual capacity, but solely
as Trustee
By ___________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By _____________________________________
Authorized Signatory of
The Chase Manhattan Bank,
as Trustee
<PAGE>
EXHIBIT B
FORM OF CLASS A-R CERTIFICATE
CLASS A-R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS OF ANY SUCH PLAN
OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) A REPRESENTATION THAT THE
PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS DEFINED IN SECTION V(e)
OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60 AND THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE
95-60, OR (3) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
Certificate No. : [ ]
Cut-Off Date : [ ]
First Distribution Date : [ ]
Initial Certificate Principal
Balance of this Certificate : [ ]
Original Class Certificate :
Principal Balance of this
Class : [ ]
Percentage Interest : [100%]
Pass-Through Rate : [ ]
CUSIP : [ ]
Class : A-R
Assumed Final Distribution Date : [ ]
<PAGE>
Fifth Third Bank Mortgage Loan Trust 2000-FTB1
Mortgage Pass-Through Certificates, Series 2000-FTB1
Class A-R
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of a pool of first lien adjustable rate
mortgage loans (the "Mortgage Loans") purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that __________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate specified above
in the interest represented by all Certificates of the Class to which this
Certificate belongs in a Trust consisting primarily of the Mortgage Loans
deposited by Greenwich Capital Acceptance, Inc. (the "Depositor"). The Trust
was created pursuant to a Pooling and Servicing Agreement dated as of December
1, 2000 (the "Agreement") among the Depositor, Fifth Third Mortgage Company,
as seller (the "Seller"), Fifth Third Bank, as servicer ("Fifth Third"), and
The Chase Manhattan Bank, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee.
No transfer of this Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to the Trustee and in substantially the form
attached to the Agreement, to the effect that such transferee is not an
employee benefit or other plan or arrangement subject to Section 406 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986 (the "Code"), nor a person
acting on behalf or investing plan assets of any such plan or arrangement,
which representation letter shall not be an expense of the Trustee, or (ii) if
the purchaser is an insurance company, a representation that the purchaser is
an insurance company which is purchasing such Certificate with funds contained
in an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificate are covered under Sections I and
III of PTCE 95-60 or (iii) an Opinion of Counsel in accordance with the
provisions of the Agreement. Notwithstanding anything else to the contrary
herein, any purported transfer of this Certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Certificate must be a Permitted Transferee, (ii) no Ownership Interest
in this Certificate may be transferred without delivery to the Trustee of (a)
a transfer affidavit of the proposed transferee and (b) a transfer certificate
of the transferor, each of such documents to be in the form described in the
Agreement, (iii) each person holding or acquiring any Ownership Interest in
this Certificate must agree to require a transfer affidavit and to deliver a
transfer certificate to the Trustee as required pursuant to the Agreement,
(iv) each person holding or acquiring an Ownership Interest in this
Certificate must agree not to transfer an Ownership Interest in this
Certificate if it has actual knowledge that the proposed transferee is not a
Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be absolutely null and void and will vest no rights in the purported
transferee. The Trustee will provide the Internal Revenue Service and any
pertinent persons with the information needed to compute the tax imposed under
the applicable tax laws on transfers of residual interests to disqualified
organizations, if any person other than a Permitted Transferee acquires an
Ownership Interest on a Class A-R Certificate in violation of the restrictions
mentioned above.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized officer of the Trustee.
<PAGE>
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: December 12, 2000
FIFTH THIRD BANK MORTGAGE LOAN TRUST 2000-FTB1
By: THE CHASE MANHATTAN BANK,
not in its individual capacity, but solely
as Trustee
By ___________________________
This is the Class A-R Certificate
referenced in the within-mentioned Agreement
By ____________________________________
Authorized Signatory of
The Chase Manhattan Bank,
as Trustee
<PAGE>
EXHIBIT C
FORM OF SUBORDINATE CERTIFICATE
CLASS B-[ ] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
(A) UNLESS such transfer is made in reliance upon Rule 144A OF THE SECURITIES
ACT OF 1933, AS AMENDED (as evidenced by the investment letter delivered to
the Trustee, in substantially the form attached to the Pooling and Servicing
Agreement, the Trustee and the Depositor shall require a written Opinion of
Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Trustee and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor or (B) the transferor SHALL HAVE executeD a
transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and the transferee SHALL HAVE executeD an investment
letter (in substantially the form attached to the Pooling and Servicing
Agreement) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which investment letter shall not be an
expense of the Trustee or the Depositor.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS OF ANY SUCH PLAN
OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) A REPRESENTATION THAT THE
PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS DEFINED IN SECTION V(e)
OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60 AND THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE
95-60, OR (3) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
THIS CERTIFICATE IS SUBORDINATE IN RIGHT AND PAYMENT AS DESCRIBED IN THE
AGREEMENT REFERRED TO HEREIN.
Certificate No. : [ ]
Cut-Off Date : [ ]
First Distribution Date : [ ]
Initial Certificate Principal
Balance of this Certificate
("Denomination") : $[ ]
Original Class Certificate
Principal Balance of this
Class : $[ ]
Percentage Interest : [ ]%
Pass-Through Rate : [ ]
CUSIP : [ ]
Class : [ ]
Assumed Final Distribution Date : [ ]
<PAGE>
Fifth Third Bank Mortgage Loan Trust 2000-FTB1
Mortgage Pass-Through Certificates, Series 2000-FTB1
Class B-[ ]
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of first lien adjustable rate mortgage
loans (the "Mortgage Loans") purchased from others by
GREENWICH CAPITAL ACCEPTANCE INC., as Depositor.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of this
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by the Depositor, the Seller, the Servicer or the Trustee referred to below or
any of their respective affiliates.
This certifies that _____________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing
the Denomination of this Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Greenwich Capital
Acceptance, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of December 1, 2000 (the "Agreement")
among the Depositor, Fifth Third Mortgage Company, as seller (the "Seller"),
Fifth Third Bank, as servicer ("Fifth Third"), and The Chase Manhattan Bank,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate also incorporates the terms, provisions and
conditions of the Put and Call Agreement, dated as of December 1, 2000 (the
"Put and Call Agreement"), between Fifth Third, as put provider and call
holder (in such capacity, the "Standby Purchaser") and the Trustee, to which
agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Holder of this Certificate has the right (the "Put Option"),
during the five Business Day period (the "Option Period") ending at 5:00 p.m.,
New York City time, on the Distribution Date in August 2002, to require the
Standby Purchaser to purchase all or part of this Certificate. Upon the
exercise of the foregoing right by the Holder of this Certificate, the Standby
Purchaser shall be required to so purchase all or a part of this Certificate,
as applicable, on the Distribution Date in September 2002 (the "Put and Call
Date"). Upon the exercise by Holders of more than 90% of the aggregate Class
Certificate Principal Balance of the Subordinate Certificates, the Standby
Purchaser has the right (the "Optional Call") to purchase all, but not fewer
than all, of the Subordinate Certificates in respect of which the related Put
Options have not been exercised, including this Certificate.
During the Option Period, the Holder and each Certificate Owner of
this Certificate may exercise the related Put Option by delivering a written
notice to the Trustee and, to the extent that this Certificate is a Book-Entry
Certificate, to the Depository. Any such written notice delivered to the
Trustee by the Holder of this Certificate must be substantially in the form of
the notice attached as Exhibit N to the Agreement (the "Put Option Notice")
and must be made at the Corporate Trust Office of the Trustee. Any exercise by
the Holder or a Certificate Owner of this Certificate of the related Put
Option shall be void and without effect unless, at all times during the period
beginning on the date of such exercise to and including the Put and Call Date,
such Holder or Certificate Owner is the beneficial owner of the relevant
interest or interests in this Certificate.
Under the Put and Call Agreement, the Standby Purchaser has agreed to
purchase this Certificate to the extent to which the related Put Option has
been properly exercised. The Holder and each Certificate Owner of this
Certificate, by its acceptance of this Certificate or its beneficial interest
herein, as applicable, agrees, upon exercise by the Standby Purchaser of the
Optional Call in respect of this Certificate or such interest, to sell this
Certificate or such interest, as the case may be, to the Standby Purchaser on
the Put and Call Date.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
No transfer of this Certificate of this Class shall be made unless
such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and such laws. In
the event of any such transfer, (i) unless such transfer is made in reliance
upon Rule 144A (as evidenced by the investment letter delivered to the
Trustee, in substantially the form attached to the Pooling and Servicing
Agreement, the Trustee and the Depositor shall require a written Opinion of
Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Trustee and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall not be an expense of the
Trustee or the Depositor or (ii) the Trustee shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Pooling and Servicing Agreement) and the transferee to execute an investment
letter (in substantially the form attached to the Pooling and Servicing
Agreement) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which investment letter shall not be an
expense of the Trustee or the Depositor.
No transfer of this Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to the Trustee and in substantially the form
attached to the Agreement, to the effect that such transferee is not an
employee benefit or other plan or arrangement subject to Section 406 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986 (the "Code"), nor a person
acting on behalf of or investing plan assets of any such plan or arrangement,
which representation letter shall not be an expense of the Trustee, or (ii) if
the purchaser is an insurance company, a representation that the purchaser is
an insurance company which is purchasing such Certificate with funds contained
in an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificate are covered under Sections I and
III of PTCE 95-60 or (iii) an Opinion of Counsel in accordance with the
provisions of the Agreement. Notwithstanding anything else to the contrary
herein, any purported transfer of this Certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
<PAGE>
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: December 21, 2000
FIFTH THIRD BANK MORTGAGE LOAN TRUST 2000-FTB1
By: THE CHASE MANHATTAN BANK,
not in its individual capacity, but solely
as Trustee
By _____________________________________
This is one of the Certificates
referenced in the within-mentioned Agreement
By ________________________________
Authorized Signatory of
The Chase Manhattan Bank,
as Trustee
<PAGE>
EXHIBIT D
FORM OF CLASS X CERTIFICATE
CLASS X CERTIFICATE
THIS CLASS X CERTIFICATE IS AN INTEREST ONLY CERTIFICATE, HAS NO PRINCIPAL
BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No. : [ ]
Cut-Off Date : [ ]
First Distribution Date : [ ]
Initial Certificate Notional
Amount of this Certificate
("Denomination") : $[ ]
Original Class Certificate
Notional Amount of this
Class : $[ ]
Percentage Interest : [ ]%
Pass-Through Rate : [ ]%
CUSIP : [ ]
Class : X
Assumed Final Distribution Date : [ ]
<PAGE>
Fifth Third Bank Mortgage Loan Trust 2000-FTB1
Mortgage Pass-Through Certificates, Series 2000-FTB1
Class X
evidencing the Percentage Interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to the
Trust consisting primarily of first lien adjustable rate mortgage
loans (the "Mortgage Loans") purchased from others by
GREENWICH CAPITAL ACCEPTANCE, INC., as Depositor.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Seller, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Class X Certificate in certain monthly
distributions with respect to a Trust consisting primarily of the Mortgage
Loans deposited by Greenwich Capital Acceptance, Inc. (the "Depositor"). The
Trust was created pursuant to a Pooling and Servicing Agreement dated as of
December 1, 2000 (the "Agreement") among the Depositor, Fifth Third Mortgage
Company, as seller (the "Seller"), Fifth Third Bank, as servicer ("Fifth
Third"), and The Chase Manhattan Bank, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class X Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class X Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a principal balance and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the
Trust will be made only upon presentment and surrender of this Certificate at
the Corporate Trust Office or the office or agency maintained by the Trustee.
Reference is hereby made to the further provisions of this Class X
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Class X Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
<PAGE>
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has caused
this Certificate to be duly executed.
Dated: December 21, 2000
FIFTH THIRD BANK MORTGAGE LOAN TRUST 2000-FTB1
By: THE CHASE MANHATTAN BANK,
not in its individual capacity, but
solely as Trustee
By ___________________________
This is the Class X Certificate
referenced in the within-mentioned Agreement
By _____________________________________
Authorized Signatory of
The Chase Manhattan Bank,
as Trustee
<PAGE>
EXHIBIT E
Form of Reverse of the Certificates
FIFTH THIRD BANK MORTGAGE LOAN TRUST 2000-FTB1
Mortgage Pass-Through Certificates, Series 2000-FTB1
Reverse Certificate
FIFTH THIRD BANK MORTGAGE LOAN TRUST 2000-FTB1
Mortgage Pass-Through Certificates, Series 2000-FTB1
This Certificate is one of a duly authorized issue of Certificates
designated as Fifth Third Bank Mortgage Loan Trust 2000-FTB1, Mortgage
Pass-Through Certificates, Series 2000-FTB1 (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be the
18th day of each calendar month or, if the 18th day is not a Business Day, the
first Business Day after the 18th day (each such date, the "Distribution
Date"), commencing on the first Distribution Date specified on the face
hereof, to the Person in whose name this Certificate is registered at the
close of business on the applicable Record Date in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of Certificates of the Class to
which this Certificate belongs on such Distribution Date pursuant to the
Agreement.
Distributions on this Certificate shall be made, (i) in the case of a
Physical Certificate, by check or money order mailed to the address of the
person entitled thereto as it appears on the Certificate Register or, upon the
request of a Certificateholder, by wire transfer as set forth in the Agreement
and (ii) in the case of a Book-Entry Certificate, to the Depository, which
shall credit the amounts of such distributions to the accounts of its
Depository Participants in accordance with its normal procedures. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of the
Trustee specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time, by the Depositor, the Seller, the Servicer and the Trustee and of
Holders of the requisite percentage of the Percentage Interests of each Class
of Certificates affected by such amendment, as specified in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or
such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust will be issued to the
designated transferee or transferees.
Subject to the terms of the Agreement, each Class of Book-Entry
Certificates will be registered as being held by the Depository or its nominee
and beneficial interests will be held by Certificate Owners through the
book-entry facilities of the Depository or its nominee in minimum
denominations of $25,000 and integral multiples of $1 in excess thereof.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee nor any such agent shall be affected by any notice to the
contrary.
Capitalized terms used herein that are defined in the Agreement shall
have the meanings ascribed to them in the Agreement, and nothing herein shall
be deemed inconsistent with that meaning.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated: _____________
------------------------------------------
Signature by or on behalf of assignor
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________________________________________
____________________________________________________________________________
for the account of__________________________________________________________,
account number ________________________, or, if mailed by check, to
____________________________________________________________________________
Applicable statements should be mailed to __________________________________
____________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _______________________________________________,
as its agent.
<PAGE>
EXHIBIT F
REQUEST FOR RELEASE OF DOCUMENTS
To: The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attention: Capital Markets Fiduciary Services
Re: Pooling and Servicing Agreement dated as of December 1, 2000,
among Greenwich Capital Acceptance, Inc., as depositor,
Fifth Third Mortgage Company, as seller, Fifth Third Bank, as
servicer, and The Chase Manhattan Bank, as trustee, for Fifth
Third Bank Mortgage Loan Trust 2000-FTB1
In connection with the administration of the Mortgage Loans held by you, as
Trustee, pursuant to the above-captioned Pooling and Servicing Agreement, we
request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address and ZIP Code:
Reason for Requesting Documents (check one):
______ 1. Mortgage Paid in Full
______ 2. Foreclosure
______ 3. Substitution
______ 4. Other Liquidation
______ 5. Nonliquidation Reason:
--------------------------------
By:
--------------------------------
(authorized signer)
Issuer:
--------------------------------
Address:
--------------------------------
--------------------------------
Date:
--------------------------------
Trustee
The Chase Manhattan Bank
Please acknowledge the execution of the above request by your signature and
date below:
---------------------------- -----------------------
Signature Date
Documents returned to Trustee:
---------------------------- -----------------------
Trustee Date
<PAGE>
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Fifth Third Bank
38 Fountain Square Plaza
Cincinnati, OH 45263
Re: Pooling and Servicing Agreement dated as of December 1, 2000,
among Greenwich Capital Acceptance, Inc., as Depositor,
Fifth Third Bank, as Servicer, Fifth Third Mortgage Company,
as Seller, and The Chase Manhattan Bank, as Trustee,
Fifth Third Bank Mortgage Loan Trust, Series 2000-FTB1
Ladies and Gentlemen:
In accordance with Section 2.01 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that,
except as listed in the following paragraph, as to each Mortgage Loan listed
in the Mortgage Loan Schedules (other than any Mortgage Loan paid in full or
listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by Fifth Third
Mortgage Company (the "Seller"), or by the originator of
such Mortgage Loan, without recourse in blank or in the
following form: "Pay to the order of The Chase Manhattan
Bank, as Trustee under the Pooling and Servicing
Agreement, dated as of December 1, 2000, Fifth Third Bank
Mortgage Loan Trust, Series 2000-FTB1 without recourse",
with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller.
Based on its review and examination and only as to the foregoing
document, such document appears regular on its face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in the Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedules, or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
* * *
<PAGE>
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:
<PAGE>
EXHIBIT G-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
FINAL CERTIFICATION OF TRUSTEE
[date]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, CT 06830
Fifth Third Mortgage Corporation
________________________________
________________________________
Re: Pooling and Servicing Agreement dated as of December 1, 2000
among Greenwich Capital Acceptance, Inc., as Depositor, Fifth
Third Mortgage Company, as Seller, Fifth Third Bank, as
Servicer, and The Chase Manhattan Bank, as Trustee,
Fifth Third Bank Mortgage Pass-Through Certificates,
Series 2000-FTB1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed either on its face or by
allonge attached thereto in the following form: "Pay to the
order of The Chase Manhattan Bank, as Trustee under the Pooling
and Servicing Agreement, dated as of December 1, 2000, Fifth
Third Bank Mortgage Loan Trust 2000-FTB1, Mortgage Pass-Through
Certificates, Series 2000-FTB1, without recourse", or with
respect to any lost Mortgage Note, an original Lost Note
Affidavit stating that the original mortgage note was lost,
misplaced or destroyed, together with a copy of the related
mortgage note;
(ii) except as provided below, the original Mortgage with evidence
of recording thereon, and the original recorded power of
attorney, if the Mortgage was executed pursuant to a power of
attorney, with evidence of recording thereon or, if such
Mortgage or power of attorney has been submitted for recording
but has not been returned from the applicable public recording
office, has been lost or is not otherwise available, a copy of
such Mortgage or power of attorney, as the case may be,
certified to be a true and complete copy of the original
submitted for recording;
(iii) if the related Mortgaged Property is located in the State of
Maryland, a copy (certified by the Seller to be a true and
complete copy of the original) of an original Assignment of
Mortgage completed to "The Chase Manhattan Bank, as Trustee"
and, if the related Mortgaged Property is located in any other
jurisdiction, an original Assignment of Mortgage in blank, in
each case otherwise in form and substance acceptable for
recording;
(iv) an original copy of any intervening Assignment of Mortgage
showing a complete chain of assignments; and
(v) the original or a certified copy of lender's title insurance
policy.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(x) and (xi) of the definition of the "Mortgage Loan Schedule" in Section 1.01
of the Pooling and Servicing Agreement accurately reflects information set
forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE>
EXHIBIT G-3
FORM OF RECEIPT OF MORTGAGE NOTE
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Re: Fifth Third Bank Mortgage Loan Trust 2000-FTB1,
Mortgage Pass-Through Certificates, Series 2000-FTB1
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing Agreement,
dated as of December 1, 2000, among Greenwich Capital Acceptance, Inc., as
Depositor, Fifth Third Mortgage Company, as Seller, Fifth Third Bank, as
Servicer, and The Chase Manhattan Bank, as Trustee, we hereby acknowledge the
receipt of the original Mortgage Note with respect to each Mortgage Loan
listed on Exhibit 1, with any exceptions thereto listed on Exhibit 2.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------------
Name:
Title:
<PAGE>
EXHIBIT H
FORM OF LOST NOTE AFFIDAVIT
Personally appeared before me the undersigned authority to administer
oaths, ______________________ who first being duly sworn deposes and says:
Deponent is ______________________ of Fifth Third Mortgage Company (the
"Seller") and who has personal knowledge of the facts set out in this
affidavit.
On ___________________, _________________________ did execute and
deliver a promissory note in the principal amount of $__________.
That said note has been misplaced or lost through causes unknown and
is currently lost and unavailable after diligent search has been made. The
Seller's records show that an amount of principal and interest on said note is
still presently outstanding, due, and unpaid, and such Seller is still owner
and holder in due course of said lost note.
The Seller executes this Affidavit for the purpose of inducing The
Chase Manhattan Bank, as trustee on behalf of Fifth Third Bank Mortgage Loan
Trust 2000-FTB1, Mortgage Pass-Through Certificates, Series 2000-FTB1, to
accept the transfer of the above described loan from the Seller.
The Seller agrees to indemnify The Chase Manhattan Bank and Greenwich
Capital Acceptance, Inc. and hold them harmless for any losses incurred by
such parties resulting from the fact that the above described Note has been
lost or misplaced.
By: __________________________________
__________________________________
STATE OF )
) ss:
COUNTY OF )
On this ____ day of _______ 2000, before me, a Notary Public, in and for said
County and State, appeared ________________________, who acknowledged the
extension of the foregoing and who, having been duly sworn, states that any
representations therein contained are true.
Witness my hand and Notarial Seal this ____ day of _______ 2000.
__________________________________
__________________________________
My commission expires _______________.
<PAGE>
EXHIBIT I
FORM OF ERISA REPRESENTATION FOR ERISA RESTRICTED CERTIFICATES
[date]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attention: Capital Markets Fiduciary Services
Re: Fifth Third Bank Mortgage Loan Trust 2000-FTB1,
Mortgage Pass-Through Certificates, Series 2000-FTB1
Ladies and Gentlemen:
1. The undersigned is the ______________________ of (the
"Transferee") a [corporation duly organized] and existing under the laws of
__________, on behalf of which he makes this affidavit.
2. The Transferee either (x)(1) is not an employee benefit plan
subject to Section 406 or Section 407 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or a plan defined in Section 4975
of the Internal Revenue Code of 1986, as amended (the "Code"), the Trustee of
any such plan or a person acting on behalf of any such plan or using the
assets of any such plan or (2) if the Transferee is an insurance company, such
Transferee is purchasing such Certificates with funds contained in an
"Insurance Company General Account" (as such term is defined in Section v(e)
of the Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60; or (y) shall deliver to the Trustee and the Depositor an
opinion of counsel (a "Benefit Plan Opinion") satisfactory to the Trustee and
the Depositor, and upon which the Trustee and the Depositor shall be entitled
to rely, to the effect that the purchase or holding of such Certificate by the
Transferee will not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, will not result in the
assets of the Trust Fund being deemed to be plan assets and subject to the
prohibited transaction provisions of ERISA or the Code and will not subject
the Trustee, the Servicer or the Depositor to any obligation in addition to
those undertaken by such entities in the Pooling and Servicing Agreement,
which opinion of counsel shall not be an expense of the Trustee or the
Depositor.
3. The Transferee hereby acknowledges that under the terms of the
Pooling and Servicing Agreement (the "Agreement") among Greenwich Capital
Acceptance, Inc., as Depositor, Fifth Third Mortgage Company, as Seller, Fifth
Third Bank, as Servicer, and The Chase Manhattan Bank, as Trustee, no transfer
of the ERISA-Restricted Certificates shall be permitted to be made to any
person unless the Depositor and Trustee have received a certificate from such
transferee in the form hereof.
<PAGE>
IN WITNESS WHEREOF, the Transferee has executed this certificate.
----------------------------
[Transferee]
By:__________________________
Name:
Title:
<PAGE>
EXHIBIT J
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[date]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attention: Capital Markets Fiduciary Services
Re: Fifth Third Bank Mortgage Loan Trust 2000-FTB1,
Mortgage Pass-Through Certificates, Series 2000-FTB1
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned
Certificates, we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we are an "accredited investor," as defined in Regulation D under
the Act, and have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Certificates, (d) we are not an
employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or a plan that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan, (e) we are acquiring the Certificates for investment for our
own account and not with a view to any distribution of such Certificates (but
without prejudice to our right at all times to sell or otherwise dispose of
the Certificates in accordance with clause (g) below), (f) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of
Section 5 of the Act, and (g) we will not sell, transfer or otherwise dispose
of any Certificates unless (1) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act or is
exempt from such registration requirements, and if requested, we will at our
expense provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made
<PAGE>
pursuant to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and Servicing Agreement.
Very truly yours,
[NAME OF TRANSFEREE]
By:
------------------------------
Authorized Officer
<PAGE>
FORM OF RULE 144A INVESTMENT LETTER
[date]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attention: Capital Markets Fiduciary Services
Re: Fifth Third Bank Mortgage Loan Trust 2000-FTB1,
Mortgage Pass-Through Certificates, Series 2000-FTB1
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (c) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or
a plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as amended, nor are we acting on behalf of any such plan, (d) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificates, any interest in the Certificates or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Certificates under the Securities Act or that would render the disposition of
the Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(e) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
<PAGE>
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
Very truly yours,
[NAME OF TRANSFEREE]
By:
-----------------------------------
Authorized Officer
<PAGE>
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
i. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
ii. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $______________(1) in securities
(except for the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in accordance
with Rule 144A and (ii) the Buyer satisfies the criteria in the category
marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
----------------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that
case, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
<PAGE>
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, territory
or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors
Act of 1940.
iii. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
v. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
vi. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of
this certification as of the date of such purchase. In addition, if the Buyer
is a bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after
they become available.
--------------------------------
Print Name of Buyer
By:
-----------------------------
Name:
Title:
Date:
----------------------------
<PAGE>
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Buyer or the Buyer's Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current information
with respect to the cost of those securities has been published. If clause
(ii) in the preceding sentence applies, the securities may be valued at
market.
___ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
---------------------------------
Print Name of Buyer or Adviser
By:
------------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------
Print Name of Buyer
Date:
----------------------------
<PAGE>
EXHIBIT K
FORM OF TRANSFEROR CERTIFICATE
[date]
Greenwich Capital Acceptance, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attention: Capital Markets Fiduciary Services
Re: Fifth Third Bank Mortgage Loan Trust 2000-FTB1,
Mortgage Pass-Through Certificates, Series 2000-FTB1
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, in a manner that would be
deemed, or taken any other action which would result in, a violation of
Section 5 of the Act, (c) to the extent we are disposing of a Class [ ]
Certificate, we have no knowledge the Transferee is not a Permitted Transferee
and (d) no purpose of the proposed disposition of a Class [ ] Certificate is
to impede the assessment or collection of tax.
Very truly yours,
[_______________________]
By: ______________________________
<PAGE>
EXHIBIT L
AFFIDAVIT OF TRANSFER OF CLASS A-R CERTIFICATE
PURSUANT TO SECTION 5.02(d)
STATE OF _________________ )
) ss.:
COUNTY OF _______________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________, the
proposed Transferee of a 100% Percentage Interest in a Class A-R Certificate
(the "Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated as of December 1, 2000 (the "Agreement"), by and among Greenwich Capital
Acceptance, Inc., as depositor (the "Depositor"), Fifth Third, as servicer
(the "Servicer"), the Seller and The Chase Manhattan Bank, as trustee (the
"Trustee"). Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee.
2. The Transferee (i) is and will be a "Permitted Transferee" as of
__________, ____ and (ii) is acquiring the Class A-R Certificate for its own
account. 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.
3. The Transferee is aware (i) or the tax that would be imposed on
transfers of the Class A-R Certificate to disqualified organizations under the
Internal Revenue Code of 1986, as amended, that applies to all transfers of
the Class A-R Certificate 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.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(b) and
(c) of the Agreement and understands the legal consequences of the acquisition
of an Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(b) and (c) of the Agreement and
the restrictions noted on the face of the Certificate. The Transferee
understands and agrees that any breach of any of the representations included
herein shall render the Transfer to the Transferee contemplated hereby null
and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit K to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as the Class
A-R Certificate remains outstanding.
9. The Transferee has no knowledge or expectation that it will become
insolvent or subject to a bankruptcy proceeding for so long as the Class A-R
Certificate remains outstanding.
10. The Transferee's taxpayer identification number is
________________________.
11. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30)(A).
12. The Transferee is aware that the Certificate may be "noneconomic
residual interests" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax. In addition, as
the holder of a noneconomic residual interest, the Transferee may incur tax
liabilities in excess of any cash flows generated by the interest and the
Transferee hereby represents that it intends to pay taxes associated with
holding the residual interest as they become due.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer duly attested, this 21st day of December, 2000.
FIFTH THIRD MORTGAGE COMPANY
By:____________________________
Name:
Title:
Personally appeared before me the above-named _______________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ____________________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free
act and deed of the Transferee.
Subscribed and sworn before me this __th day of December, 2000.
------------------------------
NOTARY PUBLIC
My Commission expires the ___
day of
---------------, ----.
<PAGE>
EXHIBIT 1
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest
in such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) that is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Class R Certificate, (iv) rural electric and telephone cooperatives described
in Code Section 1381(a)(2)(c), (v) a Person that is not a citizen or resident
of the United States, a corporation, partnership, or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust whose income from sources without
the United States is includable 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 and (vi) any other Person so designated
by the Trustee based upon an Opinion of Counsel that the Transfer of an
Ownership Interest in a Class R Certificate to such Person may cause the Trust
Fund to fail to qualify as a REMIC at any time that certain Certificates are
Outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in Code Section 7701 or
successor provisions. A corporation will not be treated as an instrumentality
of the United States or of any State or political subdivision thereof if all
of its activities are subject to tax, and, with the exception of the FHLMC, a
majority of its board of directors is not selected by such governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
<PAGE>
EXHIBIT M
Form of Liquidation Report
Customer Name:
Account Number:
Original Principal Balance:
1. Type of Liquidation (REO disposition/charge-off/short pay-off)
Date last paid
Date of foreclosure
Date of REO
Date of REO Disposition
Property Sale Price/Estimated Market Value at disposition
2. Liquidation Proceeds
Principal Prepayment $____________
Property Sale Proceeds ____________
Insurance Proceeds ____________
Other (itemize) ____________
Total Proceeds $____________
3. Liquidation Expenses
Servicing Advances $____________
Delinquency Advances ____________
Monthly Advances ____________
Servicing Fees ____________
Other Servicing Compensation ____________
Total Advances $____________
4. Net Liquidation Proceeds $____________
(Item 2 minus Item 3)
5. Principal Balance of Mortgage Loan $____________
6. Loss, if any (Item 5 minus Item 4) $____________
<PAGE>
Exhibit N
Form of Put Option Notice
[Date*]
The Chase Manhattan Bank,
as Trustee
450 West 33rd Street, 14th Floor
New York, NY 10001-2697
Attention: Capital Markets Fiduciary Services
Re: PUT OPTION NOTICE
Pooling and Servicing Agreement dated as of December 1, 2000
Fifth Third Bank as Standby Purchaser
Fifth Third Bank Mortgage Loan Trust 2000-FTB1
Mortgage Pass Through Certificates, Series 2000-FTB1
Ladies and Gentlemen:
In accordance with the provisions of the above-referenced agreement
(the "Agreement"), the undersigned Holder of $_______ in aggregate Certificate
Principal Balance of the Class [A-1]/[A-2]/[B-1]/[B-2]/[B-3]/[B-4]/[B-5]/[B-6]
Certificates exercises its Put Option(s) as follows:
<TABLE>
<CAPTION>
<S> <C>
/ / With respect to $_____ Certificate Principal Balance of the Class A-1 Certificates.
/ / With respect to $_____ Certificate Principal Balance of the Class A-2 Certificates.
/ / With respect to $_____ Certificate Principal Balance of the Class B-1 Certificates.
/ / With respect to $_____ Certificate Principal Balance of the Class B-2 Certificates.
/ / With respect to $_____ Certificate Principal Balance of the Class B-3 Certificates.
/ / With respect to $_____ Certificate Principal Balance of the Class B-4 Certificates.
/ / With respect to $_____ Certificate Principal Balance of the Class B-5 Certificates.
/ / With respect to $_____ Certificate Principal Balance of the Class B-6 Certificates.
</TABLE>
The undersigned represents and warrants to the Trustee that on the
date of this Put Option Notice it is the beneficial owner of the
Certificate(s) described above, and further represents and warrants that it
will remain the beneficial owner thereof at all times to and including the Put
and Call Date.
<PAGE>
The undersigned understands and agrees that, by delivering this Put
Option Notice to you, it is making an irrevocable election to exercise the Put
Option(s) in respect of the Certificate(s) described above.
Capitalized terms used and not defined herein are used as defined in
the Agreement.
Very truly yours,
---------------------------------
* This Put Option Notice may be delivered to the Trustee only during the five
(5) Business Day period ending at 5:00 p.m. (New York City time) on August 16,
2002.
<PAGE>
Schedule I
Mortgage Loan Schedule
