POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2001
by and among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ABS Capital I Inc.
(Depositor)
and
American Business Credit, Inc.
(Servicer)
and
The Chase Manhattan Bank
(Trustee and Collateral Agent)
ABFS Mortgage Loan Trust 2001-1
Mortgage Pass-Through Certificates,
Series 2001-1
Class A-1, Class A-IO, Class R and Class X
================================================================================
Table of Contents
Page
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms.......................................................................1
Section 1.02 Provisions of General Application..........................................................25
Section 1.03 Business Day Certificate...................................................................26
ARTICLE II
ESTABLISHMENT OF THE TRUST SALE AND CONVEYANCE OF THE TRUST FUND
Section 2.01 Establishment of the Trust.................................................................26
Section 2.02 Purchase and Sale of Mortgage Loans........................................................26
Section 2.03 [Reserved].................................................................................27
Section 2.04 Possession of Mortgage Files; Access to Mortgage Files.....................................27
Section 2.05 Delivery of Mortgage Loan Documents........................................................27
Section 2.06 Acceptance by Trustee of the Trust Fund; Certain Substitutions; Certification by
Trustee....................................................................................30
Section 2.07 Designations under REMIC Provisions; Designation of Startup Day............................32
Section 2.08 Execution of Certificates..................................................................35
Section 2.09 Application of Principal and Interest......................................................35
Section 2.10 Grant of Security Interest.................................................................35
Section 2.11 Further Action Evidencing Assignments......................................................36
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations of the Servicer and the Unaffiliated Seller................................36
Section 3.02 Representations, Warranties and Covenants of the Depositor.................................38
Section 3.03 Purchase and Substitution..................................................................40
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates...........................................................................42
Section 4.02 Registration of Transfer and Exchange of Certificates......................................42
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates..........................................48
Section 4.04 Persons Deemed Owners......................................................................48
ARTICLE V
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 5.01 REMIC Matters; The Servicer................................................................48
Section 5.02 Collection of Certain Mortgage Loan Payments; Collection Account...........................50
Section 5.03 Permitted Withdrawals from the Collection Account..........................................51
Section 5.04 Hazard Insurance Policies; Property Protection Expenses....................................52
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Section 5.05 Assumption and Modification Agreements.....................................................52
Section 5.06 Realization Upon Defaulted Mortgage Loans..................................................53
Section 5.07 Trustee to Cooperate.......................................................................54
Section 5.08 Servicing Compensation; Payment of Certain Expenses by Servicer............................55
Section 5.09 Annual Statement as to Compliance..........................................................55
Section 5.10 Annual Independent Public Accountants' Servicing Report....................................55
Section 5.11 Access to Certain Documentation............................................................56
Section 5.12 Maintenance of Fidelity Bond...............................................................56
Section 5.13 The Subservicers...........................................................................56
Section 5.14 Reports to the Trustee; Collection Account Statements......................................56
Section 5.15 Optional Purchase of Defaulted Mortgage Loans..............................................57
Section 5.16 Reports to be Provided by the Servicer.....................................................57
Section 5.17 Adjustment of Servicing Compensation in Respect of Prepaid Mortgage Loans..................58
Section 5.18 Periodic Advances; Special Advance.........................................................58
Section 5.19 Indemnification; Third Party Claims........................................................59
Section 5.20 Maintenance of Corporate Existence and Licenses; Mergeror Consolidation of the
Servicer...................................................................................59
Section 5.21 Assignment of Agreement by Servicer; Servicer Not to Resign................................60
Section 5.22 Periodic Filings with the Securities and Exchange Commission; Additional
Information................................................................................60
ARTICLE VI
DISTRIBUTIONS AND PAYMENTS
Section 6.01 Establishment of Accounts; Withdrawals from Accounts; Deposits to the Certificate
Account....................................................................................61
Section 6.02 Permitted Withdrawals From the Certificate Account.........................................61
Section 6.03 Collection of Money........................................................................62
Section 6.04 The Certificate Insurance Policy...........................................................62
Section 6.05 Distributions..............................................................................64
Section 6.06 Investment of Accounts.....................................................................65
Section 6.07 Reports by the Trustee.....................................................................65
Section 6.08 Additional Reports by Trustee..............................................................68
Section 6.09 Compensating Interest......................................................................68
Section 6.10 Effect of Payments by the Certificate Insurer; Subrogation.................................68
Section 6.11 Additional Rights of Certificate Insurer...................................................69
ARTICLE VII
DEFAULT
Section 7.01 Events of Default..........................................................................70
Section 7.02 Trustee to Act; Appointment of Successor...................................................73
Section 7.03 Waiver of Defaults.........................................................................74
Section 7.04 Rights of the Certificate Insurer to Exercise Rights of Class A-1 and Class A-IO
Certificateholders.........................................................................74
Section 7.05 Trustee To Act Solely with Consent of the Certificate Insurer..............................75
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Section 7.06 Mortgage Loans, Trust Fund and Accounts Held for Benefit of the Certificate
Insurer....................................................................................76
Section 7.07 Certificate Insurer Default................................................................76
ARTICLE VIII
TERMINATION
Section 8.01 Termination................................................................................76
Section 8.02 Additional Termination Requirements........................................................78
Section 8.03 Accounting Upon Termination of Servicer....................................................79
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee..........................................................................79
Section 9.02 Certain Matters Affecting the Trustee......................................................84
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans......................................85
Section 9.04 Trustee May Own Certificates...............................................................86
Section 9.05 Trustee's Fees and Expenses; Indemnity.....................................................86
Section 9.06 Eligibility Requirements for Trustee.......................................................87
Section 9.07 Resignation and Removal of the Trustee.....................................................87
Section 9.08 Successor Trustee..........................................................................88
Section 9.09 Merger or Consolidation of Trustee.........................................................88
Section 9.10 Appointment of Co-Trustee or Separate Trustee..............................................88
Section 9.11 Tax Returns................................................................................89
Section 9.12 Retirement of Certificates.................................................................90
Section 9.13 Trustee May Enforce Claims Without Possession of Certificates..............................90
Section 9.14 Suits for Enforcement......................................................................90
ARTICLE X
THE COLLATERAL AGENT
Section 10.01 Duties of the Collateral Agent.............................................................90
Section 10.02 Certain Matters Affecting the Collateral Agent.............................................92
Section 10.03 Collateral Agent Not Liable for Certificates or Mortgage Loans.............................93
Section 10.04 Collateral Agent May Own Certificates......................................................93
Section 10.05 Collateral Agent's Fees and Expenses; Indemnity............................................93
Section 10.06 Eligibility Requirements for Collateral Agent..............................................93
Section 10.07 Resignation and Removal of the Collateral Agent............................................94
Section 10.08 Successor Collateral Agent.................................................................94
Section 10.09 Merger or Consolidation of Collateral Agent................................................95
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Limitation on Liability of the Depositor and the Servicer..................................95
Section 11.02 Acts of Certificateholders.................................................................96
Section 11.03 Amendment..................................................................................96
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Section 11.04 Recordation of Agreement...................................................................97
Section 11.05 Duration of Agreement......................................................................97
Section 11.06 Notices....................................................................................97
Section 11.07 Severability of Provisions.................................................................98
Section 11.08 No Partnership.............................................................................98
Section 11.09 Counterparts...............................................................................98
Section 11.10 Successors and Assigns.....................................................................98
Section 11.11 Headings...................................................................................98
Section 11.12 The Certificate Insurer Default............................................................98
Section 11.13 Third Party Beneficiary....................................................................98
Section 11.14 [RESERVED].................................................................................98
Section 11.15 Appointment of Tax Matters Person..........................................................98
Section 11.16 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL...............................99
EXHIBITS
EXHIBIT A Class A-1 Certificate
EXHIBIT B Class A-IO Certificate
EXHIBIT C Class R Certificate
EXHIBIT D Class X Certificate
EXHIBIT E Contents of the Mortgage File
EXHIBIT F Certificate Re: Prepaid Loans
EXHIBIT G Trustee's Acknowledgement of Receipt
EXHIBIT H Initial Certification of Collateral Agent
EXHIBIT I Final Certification of Collateral Agent
EXHIBIT J Request for Release of Documents
EXHIBIT K Transfer Affidavit and Agreement
EXHIBIT L Transferor's Certificate
EXHIBIT M ERISA Investment Representation Letter
EXHIBIT N Resale Certification
EXHIBIT O Assignment
EXHIBIT P Wiring Instruction Form
SCHEDULES
SCHEDULE I Mortgage Loan Schedule
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POOLING AND SERVICING AGREEMENT, relating to ABFS MORTGAGE
LOAN TRUST 2001-1, dated as of March 1, 2001 (this "Agreement"), by and among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ABS CAPITAL I INC., a Delaware corporation, in its capacity as
depositor (the "Depositor"), AMERICAN BUSINESS CREDIT, INC., a Pennsylvania
corporation, in its capacity as servicer (the "Servicer"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, in its capacity as trustee (the
"Trustee").
WHEREAS, the Depositor wishes to establish a trust which
provides for the allocation and sale of the beneficial interests therein and the
maintenance and distribution of the trust estate;
WHEREAS, the Servicer has agreed to service the Mortgage
Loans, which constitute the principal assets of the trust estate;
WHEREAS, The Chase Manhattan Bank is willing to serve in the
capacity of Trustee hereunder; and
WHEREAS, MBIA Insurance Corporation (the "Certificate
Insurer") is intended to be a third party beneficiary of this Agreement and is
hereby recognized by the parties hereto to be a third-party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the Depositor, the Servicer and the Trustee
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. Whenever used herein, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings.
ABFS: American Business Financial Services, Inc.
ACCEPTED SERVICING PRACTICES: The Servicer's normal servicing
practices, which in general will conform to the mortgage servicing practices of
prudent mortgage lending institutions which service for their own account
mortgage loans of the same type as the Mortgage Loans in the jurisdictions in
which the related Mortgaged Properties are located, which may change from time
to time; provided that such practices shall at all times conform to the Credit
Policy Manual.
ACCOUNT: Any of the Collection Account, the Certificate
Account, the Interest Reserve Account or the Certificate Insurance Payment
Account.
ACCRUAL PERIOD: With respect to the Class A-1 and Class A-IO
Certificates and any Distribution Date, the prior calendar month.
ADMINISTRATIVE COSTS: With respect to any Distribution Date,
the sum of the Trustee Fee, the Premium Amount and the Servicing Fee for such
Distribution Date.
AFFILIATE: With respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
AGREEMENT: This Pooling and Servicing Agreement, including the
Exhibits hereto, and all amendments hereof and supplements hereto.
APPRAISED VALUE: As to any Mortgaged Property and time
referred to herein, the appraised value of the Mortgaged Property based upon the
appraisal made by or on behalf of the related Originator at the time referred to
herein or, in the case of a Mortgage Loan that is a purchase money mortgage
loan, the sales price of the Mortgaged Property, if such sales price is less
than such appraised value.
ASSIGNMENT OF MORTGAGE: With respect to each Mortgage Loan, an
assignment of the Mortgage, notice of transfer or equivalent instrument
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage to the Trustee
for the benefit of the Certificateholders.
AUTHORIZED DENOMINATIONS: Each of the Class A-1 Certificates
and Class A-IO Certificates is issuable only in the minimum Percentage Interest
corresponding to a minimum denomination of $1,000 or integral multiples of
$1,000 in excess thereof; provided, however, that one Certificate of each Class
is issuable in a denomination equal to any such multiple plus an additional
amount such that the aggregate denomination of all Class A-1 Certificates and
Class A-IO Certificates shall be equal to the applicable Original Certificate
Principal Balance or the Class A-IO Notional Amount, as applicable.
AVAILABLE AMOUNT: With respect to any Distribution Date is the
amount on deposit in the Collection Account, exclusive of the amount of any
Insured Distribution and the Servicing Fee, on that Distribution Date.
AVAILABLE FUNDS: As defined in Section 6.04(a).
AVAILABLE FUNDS SHORTFALL: With respect to any Distribution
Date, an amount equal to the excess, if any, of (i) the Insured Distribution
Amount for such Distribution Date over (ii) the Available Funds for such
Distribution Date; such amount shall never be less than zero.
BASE SPECIFIED OVERCOLLATERALIZATION AMOUNT: means 4.10% of
the Original Pool Principal Balance.
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BUSINESS DAY: Any day other than (a) a Saturday or Sunday, or
(b) a day on which banking institutions in the States of Pennsylvania, New York
or New Jersey are authorized or obligated by law or executive order to be
closed.
BUSINESS PURPOSE PROPERTY: Any mixed-use property, commercial
property, or four or more unit multifamily property.
CERCLA: The Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
CERTIFICATE: Any Class A-1 Certificate, Class A-IO
Certificate, Class X Certificate or Class R Certificate executed by the Trustee
on behalf of the Trust Fund and authenticated by the Trustee.
CERTIFICATE ACCOUNT: The Certificate Account established in
accordance with Section 6.01(a) hereof and maintained by the Trustee.
CERTIFICATEHOLDER or HOLDER: Each Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, waiver, request or demand pursuant to this
Agreement, any Certificate registered in the name of the Servicer or any
Subservicer or the Unaffiliated Seller, or any Affiliate of any of them, shall
be deemed not to be outstanding and the undivided Percentage Interest evidenced
thereby shall not be taken into account in determining whether the requisite
percentage of Certificates necessary to effect any such consent, waiver, request
or demand has been obtained. For purposes of any consent, waiver, request or
demand of Certificateholders pursuant to this Agreement, upon the Trustee's
request, the Servicer and the Unaffiliated Seller shall provide to the Trustee a
notice identifying any of their respective Affiliates or the Affiliates of any
Subservicer that is a Certificateholder as of the date(s) specified by the
Trustee in such request. Any Certificates on which payments are made under the
Certificate Insurance Policy shall be deemed to be outstanding and held by the
Certificate Insurer to the extent of such payment.
CERTIFICATE INSURANCE PAYMENT ACCOUNT: The Certificate
Insurance Payment Account established in accordance with Section 6.04(c) hereof
and maintained by the Trustee.
CERTIFICATE INSURANCE POLICY: The Insurance Policy No. 34726
issued by the Certificate Insurer and all endorsements thereto dated the Closing
Date, issued by the Certificate Insurer for the benefit of the Class A
Certificateholders.
CERTIFICATE INSURER: MBIA Insurance Corporation.
CERTIFICATE INSURER DEFAULT: The existence and continuance of
any of the following:
(a) the Certificate Insurer shall have failed to make a
required payment when due under the Certificate Insurance Policy;
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(b) the Certificate Insurer shall have (i) filed a petition or
commenced any case or proceeding under any provision or chapter of the United
States Bankruptcy Code, the New York State Insurance Law or any other similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization, (ii) made a general assignment for the benefit
of its creditors or (iii) had an order for relief entered against it under the
United States Bankruptcy Code, the New York State Insurance Law or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization that is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department
of Insurance or any other competent regulatory authority shall have entered a
final and nonappealable order, judgment or decree (i) appointing a custodian,
trustee, agent, or receiver for the Certificate Insurer or for all or any
material portion of its property or (ii) authorizing the taking of possession by
a custodian, trustee, agent, or receiver of the Certificate Insurer or of all or
any material portion of its property.
CERTIFICATE PRINCIPAL BALANCE: As to any particular Class A-1
Certificate and date of determination, the product of the Percentage Interest
evidenced thereby and the Class A-1 Certificate Principal Balance as of such
date. The Class A-IO, Class X and Class R Certificates do not have a
"Certificate Principal Balance".
CHANGE OF CONTROL: Any of the following: ABFS shall cease to
own, beneficially and of record, 100% of the issued and outstanding Stock of the
Servicer; the consummation of a merger or consolidation of ABFS with or into
another entity or any other corporate reorganization, if more that 50% of the
combined voting power of the continuing or surviving entity's Stock outstanding
immediately after such merger, consolidation or such other reorganization is
owned by persons who were not stockholders of ABFS immediately prior to such
merger, consolidation or other reorganization; or the sale, transfer, or other
disposition of all or substantially all of ABFS's assets. For purposes of the
foregoing, "Stock" means all shares, options, warrants, interests, participation
or other equivalents (regardless of how designated) of or in a corporation or
equivalent entity, whether voting or nonvoting, including common stock,
preferred stock, convertible debentures and all agreements, instruments and
documents convertible, in whole or in part, into any one or more or all of the
foregoing.
CIVIL RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act
of 1940, as amended.
CIVIL RELIEF ACT INTEREST SHORTFALL: With respect to any
Distribution Date, for 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 Civil Relief Act, the amount, if
any, by which (a) interest collectible on such Mortgage Loan during the most
recently ended calendar month is less than (b) the sum of one month's interest
on the Principal Balance of such Mortgage Loan, calculated at a rate equal to
the Mortgage Interest Rate.
CLASS: Each class of Certificates designated as the Class A-1
Certificates, the Class A-IO Certificates, Class X Certificates or the Class R
Certificates.
4
CLASS A CERTIFICATES: The Class A-1 Certificates and the Class
A-IO Certificates.
CLASS A-1 CARRY-FORWARD AMOUNT: As of any Distribution Date,
the sum of (a) the amount, if any, by which (i) the Class A-1 Interest
Distribution Amount as of the immediately preceding Distribution Date exceeded
(ii) the amount actually distributed on the Class A-1 Certificates in respect of
interest on such immediately preceding Distribution Date and (b) 30 days'
interest on the amount described in clause (a) calculated at an interest rate
equal to the Class A-1 Pass-Through Rate applicable to such Distribution Date.
CLASS A-1 CERTIFICATE: Any Certificate designated as a "Class
A-1 Certificate" on the face thereof, in the form of Exhibit A hereto. The Class
A-1 Certificates shall be issued with an initial aggregate Certificate Principal
Balance equal to the Original Certificate Principal Balance therefor.
CLASS A-1 CERTIFICATE PRINCIPAL BALANCE: As of any time of
determination, the Original Certificate Principal Balance of the Class A-1
Certificates less any amounts actually distributed with respect to principal
thereon on all prior Distribution Dates.
CLASS A-1 CURRENT INTEREST: With respect to the Class A-1
Certificates for any Distribution Date and the related Accrual Period, the
interest accrued at the Class A-1 Pass-Through Rate applicable to such
Distribution Date and such Accrual Period on the Class A-1 Certificate Principal
Balance as of such Distribution Date (and prior to making any distributions on
such Distribution Date).
CLASS A-1 DISTRIBUTION AMOUNT: With respect to the Class A-1
Certificates for any Distribution Date, the amount to be distributed to the
Holders of the Class A-1 Certificates on such Distribution Date, applied first
to interest and then to principal, which amount shall be the lesser of (x) the
Class A-1 Formula Distribution Amount for such Distribution Date or (y) the
amount (including any applicable portion of any Insured Payment) available for
distribution on account of the Class A-1 Certificates for such Distribution
Date.
CLASS A-1 FINAL SCHEDULED MATURITY DATE: The May 15, 2031
Distribution Date.
CLASS A-1 FORMULA DISTRIBUTION AMOUNT: With respect to the
Class A-1 Certificates for any Distribution Date, the sum of the Class A-1
Interest Distribution Amount and the Class A-1 Principal Distribution Amount.
CLASS A-1 INTEREST DISTRIBUTION AMOUNT: With respect to the
Class A-1 Certificates for any Distribution Date an amount equal to (a) the
related Class A-1 Current Interest, minus (b) the pro rata portion of any
Mortgage Loan Interest Shortfalls allocable to the Class A-1 Certificates, on
the basis of accrued interest thereon, plus (c) any Class A-1 Carry-Forward
Amount, less (d) any amounts paid by the Certificate Insurer in respect of such
Class A-1 Carry-Forward Amount.
CLASS A-1 PASS-THROUGH RATE: With respect to any Distribution
Date, the per annum rate equal to the lesser of (x) 6.28% (or, for each
Distribution Date, if any, occurring after the Clean-up Call Date, 6.78%) or (y)
the excess of the Net Weighted Average Mortgage Interest Rate as of the first
day of the related Due Period over the Pro-Rated Class A-IO Pass-Through Rate,
such percentage shall not be less than 0%.
5
CLASS A-1 PRINCIPAL DISTRIBUTION AMOUNT: With respect to the
Class A-1 Certificates for any Distribution Date, the lesser of (x) the
Principal Distribution Amount for such Distribution Date, or (y) the Class A-1
Certificate Principal Balance as of such Distribution Date.
CLASS A-IO CARRY-FORWARD AMOUNT: As of any Distribution Date,
the sum of (a) the amount, if any, by which (i) the Class A-IO Interest
Distribution Amount as of the immediately preceding Distribution Date exceeds
(ii) the amount actually paid to the holders of the Class A-IO Certificates on
such immediately preceding Distribution Date and (b) thirty (30) days' interest
on the amount described in clause (a) calculated at an interest rate equal to
the Class A-IO Pass-through Rate.
CLASS A-IO CERTIFICATE: Any Certificate designated as a "Class
A-IO Certificate" on the face thereof, in the form of Exhibit B hereto.
CLASS A-IO CURRENT INTEREST: With respect to the Class A-IO
Certificates for any Distribution Date and the related Accrual Period, the
interest accrued at the Class A-IO Pass-Through Rate applicable to such
Distribution Date and such Accrual Period on the Class A-IO Notional Amount as
of such Distribution Date.
CLASS A-IO INTEREST DISTRIBUTION AMOUNT: With respect to the
Class A-IO Certificates for any Distribution Date an amount equal to (a) the
related Class A-IO Current Interest, minus (b) the pro rata portion of any
Mortgage Loan Interest Shortfalls allocable to the Class A-IO Certificates, on
the basis of accrued interest thereon, plus (c) any Class A-IO Carry-Forward
Amount, less (d) any amounts paid by the Certificate Insurer in respect of such
Class A-IO Carry-Forward Amount.
CLASS A-IO NOTIONAL AMOUNT: With respect to each Distribution
Date occurring (i) prior to the October 2003 Distribution Date, an amount equal
to the lesser of (x) $27,500,000 or (y) the Pool Principal Balance as of the
first day of the related Due Period; and (ii) on and after the Distribution Date
occurring in October 2003, $0.
CLASS A-IO PASS-THROUGH RATE: A fixed rate equal to 6.00% per
annum.
CLASS R CERTIFICATE: Any Certificate denominated as a Class R
Certificate and subordinate to the Class A-1, Class A-IO and Class X
Certificates in right of payment to the extent set forth herein, which
Certificate shall be in the form of Exhibit C hereto.
CLASS R CERTIFICATEHOLDER: A Holder of a Class R Certificate.
CLASS X CERTIFICATE: Any Certificate denominated as a Class X
Certificate and subordinate to the Class A-1 and Class A-IO Certificates in
right of payment to the extent set forth herein, which Certificate shall be in
the form of Exhibit D hereto.
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CLASS X CERTIFICATEHOLDER: A Holder of a Class X Certificate.
CLEAN-UP CALL DATE: As defined in Section 8.01(b).
CLOSING DATE: March 21, 2001.
CODE: The Internal Revenue Code of 1986, as amended.
COLLATERAL AGENT: The Chase Manhattan Bank, its successors and
assigns.
COLLECTION ACCOUNT: The Eligible Account established and
maintained by the Servicer pursuant to Section 5.02(b).
COMBINED LOAN-TO-VALUE RATIO or CLTV: As to any Mortgage Loan
at any time, the fraction, expressed as a percentage, the numerator of which is
the sum of (i) the Principal Balance thereof at such time and (ii) if such
Mortgage Loan is subject to a second mortgage, the unpaid principal balance of
any related first mortgage loan or loans, if any, as of such time, and the
denominator of which is the Appraised Value of any related Mortgaged Property or
Properties as of the date of the appraisal used by or on behalf of the
Unaffiliated Seller to underwrite such Mortgage Loan.
COMMISSION: The Securities and Exchange Commission.
COMPENSATING INTEREST: As defined in Section 6.09 hereof.
CORRESPONDING CLASS: The class of REMIC Interest as used in
the table in Section 2.07.
CORRESPONDING CLASS: Means the Class of Master REMIC Interest
as used in the Table in Section 2.07.
CREDIT POLICY MANUAL: With respect to an Originator, its
written policies and procedures regarding underwriting, origination and
servicing of mortgage loans, as delivered to the Certificate Insurer on or prior
to the Closing Date, with such changes notified to the Certificate Insurer (a)
that do not have a material adverse effect on such policies and procedures, or
(b) that are approved by the Certificate Insurer, such approval not to be
unreasonably withheld, conditional or delayed or (c) that the Servicer does not
apply to the Mortgage Loans.
CUT-OFF DATE: The close of business on February 28, 2001 (or
with respect to any Mortgage Loan originated or otherwise acquired by an
Originator after February 28, 2001, the date of origination or acquisition of
such Mortgage Loan).
DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction of the Monthly Payment due on
such Mortgage Loan in a proceeding under the United States Bankruptcy Code,
except such a reduction that constitutes a Deficient Valuation or a permanent
forgiveness of principal.
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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 United
States Bankruptcy Code.
DELETED MORTGAGE LOAN: A Mortgage Loan replaced by or to be
replaced by a Qualified Substitute Mortgage Loan.
DELINQUENCY AMOUNT: means, as of the end of a Due Period, the
product of (i) the Rolling Three Month Delinquency Rate and (ii) the Pool
Principal Balance as of the first day of the applicable three month period.
DELINQUENCY RATIO: With respect to any Distribution Date, the
percentage equivalent of a fraction (a) the numerator of which equals the
aggregate Principal Balances of all Mortgage Loans that are 90 or more days
Delinquent, in foreclosure or converted to REO Property as of the last day of
the related Due Period and (b) the denominator of which is the aggregate
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period.
DELINQUENT: A Mortgage Loan is "delinquent" if any payment due
thereon is not made by the close of business on the day such payment is
scheduled to be due. A Mortgage Loan is "30 days delinquent" if such payment has
not been received by the close of business on the corresponding day of the month
immediately succeeding the month in which such payment was due, or, if there is
no such corresponding day (e.g., as when a 30-day month follows a 31-day month
in which a payment was due on the 31st day of such month) then on the last day
of such immediately succeeding month. Similarly for "60 days delinquent," "90
days delinquent" and so on.
DEPOSITOR: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ABS Capital I Inc., a Delaware
corporation, and any successor thereto.
DEPOSITORY: The Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and any successor Depository hereafter named.
DIRECT PARTICIPANT: Any broker-dealer, bank or other financial
institution for which the Depository holds Class A-1 or Class A-IO Certificates
from time to time as a securities depositary.
DISTRIBUTION DATE: The 15th day of any month or if such 15th
day is not a Business Day, the first Business Day immediately following,
commencing on April 16, 2001.
DUE DATE: With respect to each Mortgage Loan and any
Distribution Date, the day of the calendar month preceding the calendar month in
which such Distribution Date occurs on which the Monthly Payment for such
Mortgage Loan was due.
DUE PERIOD: With respect to each Distribution Date, the
calendar month preceding the related Distribution Date.
8
ELIGIBLE ACCOUNT: Either (A) an account or accounts maintained
with an institution (which may include the Trustee, provided such institution
otherwise meets these requirements) whose deposits are insured by the FDIC, the
unsecured and uncollateralized debt obligations of which institution shall be
rated "AA" or better by S&P and "Aa2" or better by Moody's and in the highest
short term rating category by S&P and Moody's, and which is (i) a federal
savings and loan association duly organized, validly existing and in good
standing under the federal banking laws, (ii) an institution (including the
Trustee) duly organized, validly existing and in good standing under the
applicable banking laws of any state, (iii) a national banking association duly
organized, validly existing and in good standing under the federal banking laws,
(iv) a principal subsidiary of a bank holding company, or (v) approved in
writing by the Certificate Insurer and the Rating Agencies or (B) a trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution or trust company (which may include the
Trustee, provided that the Trustee otherwise meets these requirements), having
capital and surplus of not less than $50,000,000, acting in its fiduciary
capacity.
ERISA: As defined in Section 4.02(m) hereof.
EVENT OF DEFAULT: As described in Section 7.01.
EXCESS OVER-COLLATERALIZED AMOUNT: With respect to any
Distribution Date, the excess, if any, of (a) the Over collateralized Amount
that would apply on such Distribution Date after taking into account all
distributions that would be made on such Distribution Date if the related
Over-collateralization Reduction Amounts were not deducted from the Principal
Distribution Amount over (b) the Specified Over-collateralized Amount.
FDIC: The Federal Deposit Insurance Corporation, and any
successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, and any
successor thereto.
FNMA: The Federal National Mortgage Association, and any
successor thereto.
FORECLOSURE PROFITS: As to any Distribution Date, the excess,
if any, of (i) Net Liquidation Proceeds in respect of each Mortgage Loan that
became a Liquidated Mortgage Loan during the related Due Period over (ii) the
sum of the unpaid principal balance of each such Liquidated Mortgage Loan plus
accrued and unpaid interest at the applicable Mortgage Interest Rate on the
unpaid principal balance thereof from the Due Date to which interest was last
paid by the Mortgagor (or, in the case of a Liquidated Mortgage Loan that had
been an REO Mortgage Loan, from the Due Date to which interest was last deemed
to have been paid pursuant to Section 5.06 to the first day of the month
following the month in which such Mortgage Loan became a Liquidated Mortgage
Loan).
GAAP: Generally accepted accounting principles, consistently
applied, as of the date of such application.
I & I PAYMENTS: Payments due and owing under the Insurance and
Reimbursement Agreement other than pursuant to Section 2.4(a) of such Agreement.
9
INDIRECT PARTICIPANT: Any financial institution for whom any
Direct Participant holds an interest in a Class A-1 or Class A-IO Certificate.
INSURANCE AND REIMBURSEMENT AGREEMENT: The Insurance and
Reimbursement Agreement dated as of March 21, 2001 among the Certificate
Insurer, the Depositor, the Trustee, the Servicer, the Unaffiliated Seller,
HomeAmerican Credit, Inc., d/b/a Upland Mortgage and American Business Mortgage
Services, Inc. as such agreement may be amended or supplemented in accordance
with the provisions thereof.
INSURANCE POLICIES: All insurance policies insuring any
Mortgage Loan or Mortgaged Property to the extent the Trust or the Trustee has
any interest therein.
INSURANCE PROCEEDS: Proceeds paid by any insurer pursuant to
any insurance policy covering a Mortgage Loan to the extent such proceeds are
not applied to the restoration of the related Mortgaged Property or released to
the related Mortgagor in accordance with Accepted Servicing Practices.
"Insurance Proceeds" do not include "Insured Payments."
INSURED DISTRIBUTION AMOUNT: With respect to any Distribution
Date, the sum of (i) the Class A-1 Interest Distribution Amount, (ii) the Class
A-IO Interest Distribution Amount, (iii) the Overcollateralization Deficit for
such Distribution Date and (iv) solely with respect to the Class A-1 Final
Scheduled Maturity Date, the remaining Class A-1 Certificate Principal Balance.
INSURED PAYMENT: With respect to any Distribution Date, the
Available Funds Shortfall.
INSURER DEFENSE COSTS: All costs and expenses of the
Certificate Insurer (including out of pocket costs and expenses of the Trustee
or the Depositor that the Certificate Insurer may have paid) in connection with
any action, proceeding or investigation that could adversely affect the Trust or
the rights or obligations of the Certificate Insurer under any of the Insurance
and Reimbursement Agreement, this Agreement, the Unaffiliated Seller Agreement
or any other document delivered with respect thereto, including (without
limitation) any judgment or settlement entered into affecting the Certificate
Insurer or the Certificate Insurer's interests, together with interest thereon
at a rate equal to the Late Payment Rate from the date such expenses are
incurred up to but not including the date the Certificate Insurer is reimbursed
for such expenses in full.
INTEREST DISTRIBUTION AMOUNT: Means the sum of the Class A-1
Interest Distribution Amount and the Class A-IO Interest Distribution Amount.
INTEREST RESERVE ACCOUNT: The Interest Reserve Account
established in accordance with Section 6.01(a) hereof and maintained by the
Trustee.
INTEREST RESERVE ACCOUNT REQUIREMENT: An amount equal to
$800,000.
LATE PAYMENT RATE: Has the meaning ascribed thereto in the
Insurance and Reimbursement Agreement.
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LIQUIDATED LOAN LOSS: With respect to any Distribution Date as
of the related Due Date, an amount equal to the excess of (i) the unpaid
principal balance of a Liquidated Mortgage Loan, plus accrued interest thereon
in accordance with the amortization schedule at the time applicable thereto at
the applicable Mortgage Interest Rate from the Due Date as to which interest was
last paid with respect thereto through the last day of the month in which such
Mortgage Loan became a Liquidated Mortgage Loan, over (ii) Net Liquidation
Proceeds with respect to such Liquidated Mortgage Loan.
LIQUIDATED MORTGAGE LOAN: A Mortgage Loan with respect to
which the related Mortgaged Property has been acquired, liquidated or foreclosed
and with respect to which the Servicer determines that all Liquidation Proceeds
which it expects to recover have been recovered.
LIQUIDATION EXPENSES: Expenses incurred by the Servicer in
connection with the liquidation of any defaulted Mortgage Loan or property
acquired in respect thereof (including, without limitation, legal fees and
expenses, committee or referee fees, and, if applicable, brokerage commissions
and conveyance taxes), any unreimbursed amount expended by the Servicer pursuant
to Sections 5.04 and 5.06 hereof respecting the related Mortgage Loan and any
unreimbursed expenditures for real property taxes or for property restoration or
preservation of the related Mortgaged Property. Liquidation Expenses shall not
include any previously incurred expenses in respect of an REO Mortgage Loan
which have been netted against related REO Proceeds.
LIQUIDATION PROCEEDS: The amount (other than Insurance
Proceeds) received by the Servicer in connection with (i) the taking of all or a
part of Mortgaged Property by exercise of the power of eminent domain or
condemnation, (ii) the liquidation of a defaulted Mortgage Loan through a
trustee's sale, foreclosure sale, REO Disposition or otherwise or (iii) the
liquidation of any other security for such Mortgage Loan, including, without
limitation, pledged equipment, inventory and working capital and assignments of
rights and interests made by the related mortgagor.
LOAN REPURCHASE PRICE: As defined in Section 2.06(b).
MAJORITY CERTIFICATEHOLDERS: The Holder or Holders of Class
A-1 and Class A-IO Certificates evidencing Percentage Interests in excess of 51%
in the aggregate.
MONTHLY PAYMENT: As to any Mortgage Loan (including any REO
Mortgage Loan) and any Due Date, the payment of principal and interest due
thereon as specified for such Due Date in the related amortization schedule at
the time applicable thereto (after adjustment for any Deficient Valuations
occurring prior to such Due Date but before any adjustment to such amortization
schedule by reason of any bankruptcy, other than Deficient Valuations or similar
proceeding or any moratorium or similar waiver or grace period).
MONTHLY SERVICING FEE: As defined in Section 5.08 hereof.
MOODY'S: ▇▇▇▇▇'▇ Investors Service, Inc., a corporation
organized and existing under Delaware law, or any successor thereto and if such
corporation no longer for any reason performs the services of a securities
rating agency, "Moody's" shall be deemed to refer to any other nationally
recognized rating agency designated by the Certificate Insurer.
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MORTGAGE: The mortgage, deed of trust or other instrument
creating a first or second lien on the Mortgaged Property.
MORTGAGED PROPERTY: The underlying property or properties
securing a Mortgage Loan, consisting of a fee simple estate in such real
property.
MORTGAGE FILE: As described in Exhibit E.
MORTGAGE INTEREST RATE: As to any Mortgage Loan, the per annum
fixed rate at which interest accrues on the unpaid principal balance thereof as
set forth on the related Mortgage Note.
MORTGAGE LOAN INTEREST SHORTFALL: With respect to any
Distribution Date, as to any Mortgage Loan, the sum of (a) any Prepayment
Interest Shortfall for which no payment of Compensating Interest is paid and (b)
any Civil Relief Act Interest Shortfall in respect of such Mortgage Loan for
such Distribution Date.
MORTGAGE LOANS: The mortgage loans set forth on the Mortgage
Loan Schedule, together with any Qualified Substitute Mortgage Loans substituted
therefor in accordance with this Agreement, as from time to time are held as a
part of the Trust Fund, the Mortgage Loans originally so held being identified
in the Mortgage Loan Schedule. When used in respect of any Distribution Date,
the term Mortgage Loans shall mean all Mortgage Loans (including those in
respect of which the Trustee has acquired the related Mortgaged Property) which
have not been repaid in full prior to the related Due Period, did not become
Liquidated Mortgage Loans prior to such related Due Period or were not
repurchased or replaced by the Unaffiliated Seller prior to such related Due
Period.
MORTGAGE LOAN SCHEDULE: The schedule of Mortgage Loans as of
the Cut-Off Date as attached hereto as Schedule I, which will be deemed to be
modified automatically upon any replacement, sale, substitution, liquidation,
transfer or addition of any Mortgage Loan pursuant to the terms hereof. The
Mortgage Loan Schedule sets forth as to each Mortgage Loan: (i) its identifying
number and the name of the related Mortgagor; (ii) the billing address for the
related Mortgaged Property including the state and zip code; (iii) its date of
origination; (iv) the original number of months to stated maturity; (v) the
original stated maturity; (vi) the original Principal Balance; (vii) the
Principal Balance as of the Cut-Off Date; (viii) the Mortgage Interest Rate and
(ix) the scheduled monthly payment of principal and interest.
MORTGAGE NOTE: The original, executed note or other evidence
of indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
MORTGAGOR: The obligor on a Mortgage Note.
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NET FORECLOSURE PROFITS: As to any Distribution Date, the
excess, if any, of (i) the aggregate Foreclosure Profits with respect to such
Distribution Date over (ii) Liquidated Loan Losses with respect to such
Distribution Date.
NET INCOME: For any fiscal quarter of ABFS, the net income (or
loss) of ABFS and its consolidated subsidiaries for such quarter, determined in
accordance with GAAP.
NET LIQUIDATION PROCEEDS: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of Liquidation Expenses and net of any unreimbursed
Periodic Advances made by the Servicer out of its own funds. For all purposes of
this Agreement, Net Liquidation Proceeds shall be allocated first to accrued and
unpaid interest on the related Mortgage Loan and then to the unpaid principal
balance thereof.
NET REO PROCEEDS: As to any REO Mortgage Loan, REO Proceeds
net of any related expenses of the Servicer.
NET WEIGHTED AVERAGE MORTGAGE INTEREST RATE: With respect to
any Due Period, the weighted average Mortgage Interest Rates (weighted by
Principal Balances) of the Mortgage Loans, calculated at the opening of business
on the first day of such Due Period, less the rate at which the Servicing Fee is
then calculated, less the rate at which the Trustee Fee is then calculated, less
the Premium Percentage and any taxes imposed on any REMIC created hereunder
pursuant to Section 9.01(d) herein.
NET WORTH: As of any date, the consolidated total
stockholder's equity of ABFS and its consolidated subsidiaries, determined in
accordance with GAAP.
NONRECOVERABLE ADVANCES: With respect to any Mortgage Loan,
(a) any Periodic Advance previously made and not reimbursed from late
collections pursuant to Section 5.03, or (b) a Periodic Advance proposed to be
made in respect of a Mortgage Loan or REO Property either of which, in the good
faith business judgment of the Servicer, as evidenced by an Officer's
Certificate delivered to the Certificate Insurer and the Trustee no later than
the Business Day following such determination, would not ultimately be
recoverable pursuant to Sections 5.03.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of
the Board, the President or a Vice President, the Treasurer, the Secretary or
one of the Assistant Treasurers or Assistant Secretaries of the Unaffiliated
Seller and/or the Servicer, or the Depositor, as required by this Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may,
without limitation, be counsel for the Unaffiliated Seller, the Servicer, the
Trustee, a Certificateholder or a Certificateholder's prospective transferee or
the Certificate Insurer (including except as otherwise provided herein, in-house
counsel) reasonably acceptable to each addressee of such opinion and experienced
in matters relating to the subject of such opinion; except that any opinion of
counsel relating to (a) the qualification of the REMIC Trust as a REMIC or (b)
compliance with the REMIC Provisions must be an opinion of counsel who (i) is in
fact independent of the Unaffiliated Seller, the Servicer and the Trustee, (ii)
does not have any direct financial interest or any material indirect financial
interest in the Unaffiliated Seller or the Servicer or the Trustee or in an
Affiliate thereof, (iii) is not connected with the Unaffiliated Seller or the
Servicer or the Trustee as an officer, employee, director or person performing
similar functions and (iv) is reasonably acceptable to the Certificate Insurer.
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ORIGINAL CERTIFICATE PRINCIPAL BALANCE: As of the Startup Day
and as to the Class A-1 Certificates, $275,000,000. The Class A-IO, Class X and
Class R Certificates do not have an Original Certificate Principal Balance.
ORIGINAL POOL PRINCIPAL BALANCE: The Pool Principal Balance as
of the Cut-Off Date, which amount is equal to $275,000,000.
ORIGINATORS: American Business Credit, Inc., HomeAmerican
Credit, Inc., d/b/a Upland Mortgage and American Business Mortgage Services,
Inc.
OVERCOLLATERALIZATION DEFICIENCY AMOUNT: With respect to any
Distribution Date, the difference, if greater than zero, between (a) the
Specified Overcollateralized Amount applicable to such Distribution Date and (b)
the Overcollateralized Amount applicable to such Distribution Date prior to
taking into account the payment of any related Overcollateralization Increase
Amount on such Distribution Date.
OVERCOLLATERALIZATION DEFICIT: As of any Distribution Date,
the amount, if any, by which (a) the Class A-1 Certificate Principal Balance,
after taking into account the payment of the Principal Distribution Amount
(except for any amount in respect of the Overcollateralization Deficit) on such
date exceeds (b) the Pool Principal Balance determined as of the end of the
immediately preceding Due Period.
OVERCOLLATERALIZATION INCREASE AMOUNT: With respect to any
Distribution Date, the Overcollateralization Deficiency Amount as of such
Distribution Date (after taking into account the payment of the Class A-1
Principal Distribution Amount on such Distribution Date).
OVERCOLLATERALIZATION REDUCTION AMOUNT: With respect to the
Class A-1 Certificates and any Distribution Date, an amount equal to the lesser
of (a) the Excess Overcollateralized Amount for such Distribution Date or (b)
the Principal Distribution Amount for such Distribution Date (without regard to
any Overcollateralization Reduction Amounts included in the definition thereof).
OVERCOLLATERALIZED AMOUNT: As of any Distribution Date, the
difference, if any, between (a) the Pool Principal Balance as of the close of
business on the last day of the related Due Period and (b) the Class A-1
Certificate Principal Balance as of such Distribution Date (after taking into
account the payment of the Class A-1 Principal Distribution Amount on such
Distribution Date except for any portion thereof related to an Insured Payment);
provided, however, that such amount shall not be less than zero.
OWNER-OCCUPIED MORTGAGED PROPERTY: A Residential Dwelling as
to which (a) the related Mortgagor represented an intent to occupy as such
Mortgagor's primary, secondary or vacation residence at the origination of the
Mortgage Loan, and (b) the Unaffiliated Seller has no actual knowledge that such
Residential Dwelling is not so occupied.
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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.
PERCENTAGE INTEREST: With respect to a Class A-1 Certificate,
the portion evidenced by such Certificate, expressed as a percentage rounded to
four decimal places, equal to a fraction the numerator of which is the
denomination represented by such Certificate and the denominator of which is the
Original Certificate Principal Balance of such Class. With respect to a Class
A-IO, Class X or Class R Certificate, the portion evidenced thereby as stated on
the face of such Certificate.
PERIODIC ADVANCE: The aggregate of the advances required to be
made by the Servicer on any Servicer Distribution Date pursuant to Section 5.18
hereof, the amount of any such advances being equal to the sum of:
(a) with respect to each Mortgage Loan that was Delinquent as
of the close of business on the last day of the Due Period preceding the related
Servicer Distribution Date, the product of (i) the Principal Balance of such
Mortgage Loan and (ii) one-twelfth of the Mortgage Interest Rate for such
Mortgage Loan net of the Servicing Fee, and
(b) with respect to each REO Property which was acquired
during or prior to the related Due Period and as to which an REO Disposition did
not occur during the related Due Period, an amount equal to the excess, if any,
of (i) interest on the Principal Balance of such REO Mortgage Loan at the
Mortgage Interest Rate for such REO Mortgage Loan net of the Servicing Fee, for
the most recently ended Due Period over (ii) the net income from the REO
Property transferred to the Certificate Account for such Distribution Date;
provided, however, that in each such case such advance has not been determined
by the Servicer to be a Nonrecoverable Advance.
PERMITTED INVESTMENTS: As used herein, Permitted Investments
shall include the following:
(i) obligations of, or guaranteed as to principal and interest
by, the United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause
(i) maturing not more than three months from the date of acquisition thereof,
provided that the unsecured obligations of the party agreeing to repurchase such
obligations are at the time rated in one of the two highest rating categories by
the Rating Agencies;
(iii) certificates of deposit, time deposits and bankers'
acceptances (which, in the case of bankers' acceptances, shall in no event have
an original maturity of more than 365 days) of any U.S. depository institution
or trust company, incorporated under the laws of the United States or any state;
provided, that the debt obligations of such depository institution or trust
company at the date of acquisition thereof have been rated in one of the two
highest rating categories by the Rating Agencies;
15
(iv) commercial paper (having original maturities of not more
than 270 days) of any corporation incorporated under the laws of the United
States or any state thereof which on the date of acquisition has been rated in
the highest short-term rating category by the Rating Agencies;
(v) the VISTA U.S. Government Money Market Fund, the VISTA
Prime Money Market Fund and the VISTA Treasury Plus Fund, so long as any such
fund is rated in the highest rating category by Moody's or S&P;
provided, that, each such Permitted Investment shall be a "permitted investment"
within the meaning of Section 860G(a)(5) of the Code and that no instrument
described hereunder shall evidence either the right to receive (x) only interest
with respect to the obligations underlying such instrument or (y) both principal
and interest payments derived from obligations underlying such instrument and
the interest and principal payments with respect to such instrument provided a
yield to maturity at par greater than 120% of the yield to maturity at par of
the underlying obligations; and provided, further, that no instrument described
hereunder may be purchased at a price greater than par if such instrument may be
prepaid or called at a price less than its purchase price prior to stated
maturity.
PERMITTED TRANSFEREE: Any Person other than (a) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (b) a foreign government, International
Organization or any agency or instrumentality of either of the foregoing, (c) an
organization (except certain farmers' cooperatives described in Section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by Section 511 of the Code on unrelated business taxable income)
on any excess inclusions (as defined in Section 860E(c)(1) of the Code) with
respect to any Class R Certificate, (d) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (e) an "electing
large partnership" within the meaning Section 775 of the Code' and (f) any other
Person so designated by the Trustee based upon an Opinion of Counsel to the
Trustee and the Certificate Insurer that the transfer of an Ownership Interest
in a Class R Certificate to such Person may cause either (i) the REMIC Trust to
fail to qualify as a REMIC at any time that the Class A-1 or Class A-IO
Certificates are outstanding or (ii) the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class R
Certificate to such Person. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and, with
the exception of FHLMC, a majority of its board of directors is not selected by
such governmental unit.
PERSON: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, national banking association,
unincorporated organization or government or any agency or political subdivision
thereof.
PLAN: As defined in Section 4.02(m).
16
POOL PRINCIPAL BALANCE: The aggregate Principal Balances of
the Mortgage Loans as of any date of determination.
PREFERENCE AMOUNT: Any amounts distributed in respect of the
Class A-1 and Class A-IO Certificates which are recovered from any Holder of a
Class A-1 or Class A-IO Certificate as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code (11 U.S.C.), as amended
from time to time in accordance with a final, nonappealable order of a court
having competent jurisdiction.
PREFERENCE CLAIM: As defined in Section 6.04(f).
PREMIUM AMOUNT: The product of the Premium Percentage and the
Class A-1 Certificate Principal Balance for the related Distribution Date (after
giving effect to any distributions on that date).
PREMIUM PERCENTAGE: The rate at which the "Premium" is
determined as described in the letter dated March 21, 2001 between ABFS and the
Certificate Insurer.
PREPAYMENT ASSUMPTION: A constant prepayment rate of 23% HEP
for the Class A-1 Certificates for the Class A-IO Certificates, used solely for
determining the accrual of original issue discount and market discount on the
Certificates for federal income tax purposes.
PREPAYMENT INTEREST SHORTFALL: With respect to any
Distribution Date, for each Mortgage Loan that was the subject during the
related Due Period of a Principal Prepayment, an amount equal to the excess, if
any, of (a) 30 days' interest on the Principal Balance of such Mortgage Loan at
a per annum rate equal to (i) the Mortgage Interest Rate (or at such lower rate
as may be in effect for such Mortgage Loan pursuant to application of the Civil
Relief Act, any Deficient Valuation and/or any Debt Service Reduction) minus
(ii) the rate at which the Servicing Fee is calculated over (b) the amount of
interest actually remitted by the Mortgagor in connection with such Principal
Prepayment less the Servicing Fee for such Mortgage Loan in such month.
PRINCIPAL BALANCE: As to any Mortgage Loan and any date of
determination, the outstanding principal balance of such Mortgage Loan as of
such date of determination after giving effect to Principal Prepayments received
prior to the end of the related Due Period and Deficient Valuations incurred
prior to the related Due Date. The Principal Balance of a Mortgage Loan which
becomes a Liquidated Mortgage Loan on or prior to the related Due Date shall be
zero (except for purposes of calculating the Loan Repurchase Price of such
Mortgage Loan).
PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date will
be the lesser of:
(a) the excess of (i) the sum, as of such Distribution Date,
of (A) the Available Funds and (B) any Insured Payment plus if the Certificate
Insurer, to the extent not obligated hereunder or under the Insurance and
Reimbursement Agreement, shall so elect in its sole discretion, an amount of
principal (including Liquidated Loan Losses) that would have been payable
pursuant to clauses (b)(i)-(ix) below if sufficient funds were made available to
the Trustee in accordance with the terms of the Certificate Insurance Policy
over (ii) sum of (w) the Class A-1 Interest Distribution Amount, (x) the Class
A-IO Interest Distribution Amount, (y) the Trustee Fees and (z) the amount due
to the Certificate Insurer on such Distribution Date pursuant to Section 6.05;
and
17
(b) the sum, without duplication, of:
(i) all principal in respect of the Mortgage Loans
actually collected during the related Due Period,
(ii) the Principal Balance of each Mortgage Loan that
either was repurchased by the Unaffiliated Seller or by an Originator
or purchased by the Servicer on the related Servicer Distribution Date,
to the extent such Principal Balance is actually received by the
Trustee,
(iii) any Substitution Adjustments delivered by the
Depositor on the related Servicer Distribution Date in connection with
a substitution of a Mortgage Loan, to the extent such Substitution
Adjustments are actually received by the Trustee,
(iv) the Net Liquidation Proceeds actually collected
by the Servicer on all Mortgage Loans during the related Due Period (to
the extent such Net Liquidation Proceeds relate to principal),
(v) the proceeds received by the Trustee upon the
exercise by the Class X Certificateholder or the Servicer of the option
to repurchase the Mortgage Loans on or after the Clean-up Call Date,
(vi) the amount of any Overcollateralization Deficit
for such Distribution Date,
(vii) the proceeds received by the Trustee on any
termination of the Trust to the extent such proceeds relate to
principal,
(viii) the amount of any Overcollateralization
Increase Amount for such Distribution Date, and
(ix) if the Certificate Insurer shall so elect in its
sole discretion, an amount of principal (including Liquidated Loan
Losses) that would have been payable pursuant to clauses (i)-(viii)
above if sufficient funds were made available to the Trustee in
accordance with the terms of the Certificate Insurance Policy,
minus
(x) the amount of any Overcollateralization Reduction
Amount for such Distribution Date.
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PRINCIPAL PREPAYMENT: Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date.
PRO RATED CLASS A-IO PASS-THROUGH RATE: Means, with respect to
any Distribution Date, the Class A-IO Pass-Through Rate multiplied by a fraction
the numerator of which is the Class A-IO Notional Amount for such Distribution
Date and the denominator of which is the Pool Principal Balance as of the first
day of the related Due Period.
PROSPECTUS SUPPLEMENT: The Prospectus Supplement dated March
9, 2001 relating to the Class A-1 and Class A-IO Certificates filed with the
Commission in connection with the Registration Statement heretofore filed or to
be filed with the Commission pursuant to Rule 424(b)(2) or 424(b)(5).
QUALIFIED APPRAISER: An appraiser, duly appointed by the
Unaffiliated Seller, who had no interest, direct or indirect, in the Mortgaged
Property or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan, and such
appraiser and the appraisal made by such appraiser both satisfy the requirements
of Title XI of the Federal Institutions Reform, Recovery and Enforcement Act of
1989 and the regulations promulgated thereunder, all as in effect on the date
the Mortgage Loan was originated.
QUALIFIED MORTGAGE: "Qualified Mortgage" shall have the
meaning set forth from time to time in the definition thereof at Section
860G(a)(3) of the Code (or any successor statute thereto).
QUALIFIED SUBSTITUTE MORTGAGE LOAN: A mortgage loan or
mortgage loans substituted for a Deleted Mortgage Loan pursuant to Section
2.06(c) or 3.03 hereof, which (a) has or have an interest rate at least equal to
that applicable to the Deleted Mortgage Loan, (b) relates or relate to a
detached one-family residence or to the same type of Residential Dwelling or
Business Purpose Property, or any combination thereof, as the Deleted Mortgage
Loan and in each case has or have the same or a better lien priority as the
Deleted Mortgage Loan and has the same occupancy status or is an Owner Occupied
Mortgaged Property, (c) matures or mature no later than (and not more than one
year earlier than) the Deleted Mortgage Loan, (d) has or have a Loan-to-Value
Ratio at the time of such substitution no higher than the Loan-to-Value Ratio of
the Deleted Mortgage Loan, (e) has or have a Combined Loan-to-Value Ratio or
Combined Loan-to-Value Ratios at the time of such substitution no higher than
the Combined Loan-to-Value Ratio of the Deleted Mortgage Loan, (f) has or have a
Principal Balance or Principal Balances (after application of all payments
received on or prior to the date of substitution) not substantially less and not
more than the Principal Balance of the Deleted Mortgage Loan as of such date,
(g) satisfies or satisfy the criteria set forth from time to time in the
definition of "qualified replacement mortgage" at Section 860G(a)(4) of the Code
(or any successor statute thereto), and (h) complies or comply as of the date of
substitution with each representation and warranty set forth in Sections 3.01,
3.02 and 3.03 of the Unaffiliated Seller's Agreement.
RATING AGENCY: S&P or ▇▇▇▇▇'▇.
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RECORD DATE: With respect to the Certificates, the last
Business Day of the month immediately preceding the month in which a
Distribution Date occurs.
REIMBURSEMENT AMOUNT: As of any Distribution Date, the sum of
(a)(i) all payments under the Certificate Insurance Policy previously received
by the Trustee and all Preference Amounts previously paid by the Certificate
Insurer and in each case not previously repaid to the Certificate Insurer
pursuant to Sections 6.05(a) hereof plus (ii) interest accrued on each such
payment and Preference Amounts not previously repaid calculated at the Late
Payment Rate from the date the Trustee received the related payment or
Preference Amount paid by the Certificate Insurer and (b)(i) any amounts then
due and owing to the Certificate Insurer under the Insurance and Reimbursement
Agreement (excluding the Premium Amount due on such Distribution Date), as
certified to the Trustee by the Certificate Insurer plus (ii) interest on such
amounts at the Late Payment Rate and (c) to the extent not otherwise included,
all Insurer Defense Costs. The Certificate Insurer shall notify the Trustee and
the Depositor of the amount of any Reimbursement Amount.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC I: As described in Section 2.07 herein.
REMIC II: As described in Section 2.07 herein.
REMIC III: As described in Section 2.07 herein.
REMIC PROVISIONS: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final regulations promulgated thereunder and
published rulings, notices and announcements, as the foregoing may be in effect
from time to time.
REO DISPOSITION: The final sale by the Servicer of a Mortgaged
Property acquired by the Servicer in foreclosure or by deed-in-lieu of
foreclosure.
REO MORTGAGE LOAN: Any Mortgage Loan which is not a Liquidated
Mortgage Loan and as to which the indebtedness evidenced by the related Mortgage
Note is discharged and the related Mortgaged Property is held as part of the
Trust Fund.
REO PROCEEDS: Proceeds received in respect of any REO Mortgage
Loan (including, without limitation, proceeds from the rental of the related
Mortgaged Property).
REO PROPERTY: A Mortgaged Property acquired by the Servicer in
the name of the Trustee on behalf of the Certificateholders through foreclosure
or deed-in-lieu of foreclosure.
REPRESENTATION LETTER: Letters to, or agreements with, the
Depository to effectuate a book entry system with respect to the Class A-1
Certificates and Class A-IO Certificates registered in the Certificate Register
under the nominee name of the Depository.
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REPRESENTATIVE: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated; as the
representative underwriter for the Underwriters listed on Schedule A to the
Underwriting Agreement.
REQUEST FOR RELEASE: A request for release in substantially
the form attached as Exhibit H hereto.
RESIDENTIAL DWELLING: A one- to four-family dwelling, a unit
in a planned unit development, a unit in a condominium development, a townhouse
or a manufactured housing unit which is non-mobile.
RESPONSIBLE OFFICER: When used with respect to the Trustee,
any officer assigned to the Corporate Trust Division (or any successor thereto),
including any Vice President, Assistant Vice President, Trust Officer, any
Assistant Secretary, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and to whom, with respect to a particular matter, such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject in each case having direct responsibility for the
administration of this Agreement. When used with respect to the Unaffiliated
Seller or the Servicer, the President or any Vice President, Assistant Vice
President, or any Secretary or Assistant Secretary.
RETAINED INTEREST: An interest in a pool of promissory notes,
mortgage loans, or other financial assets which entitles the holder to receive
excess cash flows derived from such assets after payments to senior holders of
direct or indirect beneficial or other interests in such assets as well as
expenses and other payments accorded priority in right or payment to such
residual interest.
ROLLING THREE MONTH DELINQUENCY RATE: For any Distribution
Date, a percentage, equal to the average of the Delinquency Ratio for each of
the three (1 or 2 in the case of the first three Distribution Dates, as the case
may be) immediately preceding Due Periods.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or any successor thereto and if such corporation no longer for
any reason performs the services of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized statistical rating
organization designated by the Certificate Insurer.
SERVICER: American Business Credit, Inc., a Pennsylvania
corporation, or any successor appointed as herein provided.
SERVICER DISTRIBUTION DATE: With respect to any Distribution
Date, the 10th day of the month in which such Distribution Date occurs, or if
such 10th day is not a Business Day, the Business Day preceding such 10th day.
SERVICER REMITTANCE AMOUNT: With respect to any Servicer
Distribution Date, an amount equal to the sum of (i) all collections of
principal and interest on the Mortgage Loans (including Principal Prepayments,
Net REO Proceeds and Net Liquidation Proceeds, if any) collected by the Servicer
during the related Due Period, (ii) all Periodic Advances made by the Servicer
with respect to interest payments due to be received on the Mortgage Loans on
the related Due Date and (iii) any other amounts required to be placed in the
Collection Account by the Servicer pursuant to this Agreement but excluding the
following:
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(a) amounts received on particular Mortgage Loans as late
payments of interest and respecting which the Servicer has previously made an
unreimbursed Periodic Advance out of its own funds;
(b) those portions of each payment of interest on a particular
Mortgage Loan which represent the Servicing Fee;
(c) that portion of Liquidation Proceeds and REO Proceeds to
the extent of any unpaid Servicing Fee;
(d) all income from Permitted Investments that is held in the
Collection Account for the account of the Servicer;
(e) all amounts in respect of late fees, assumption fees,
prepayment fees and similar fees;
(f) certain other amounts which are reimbursable to the
Servicer, as provided in this Pooling and Servicing Agreement; and
(g) Net Foreclosure Profits.
SERVICING ADVANCES: All reasonable and customary
"out-of-pocket" costs and expenses incurred in the performance by the Servicer
of its servicing obligations, including, but not limited to, the cost and
expenses relating to (a) the preservation, restoration and protection of the
Mortgaged Property, (b) any enforcement or judicial proceedings, including
foreclosures, (c) the management and liquidation of the REO Property, including
reasonable fees paid to any independent contractor in connection therewith, (d)
compliance with the obligations under Section 5.22, all of which reasonable and
customary out-of-pocket costs and expenses are reimbursable to the Servicer to
the extent provided in Sections 5.03 and 5.22.
SERVICING COMPENSATION: The Servicing Fee and other amounts to
which the Servicer is entitled pursuant to Section 5.08.
SERVICING FEE: As to each Mortgage Loan, the annual fee
payable to the Servicer, which is calculated as an amount equal to the product
of (a) 0.50% per annum, and (b) the Principal Balance thereof (or, in the case
of any successor Servicer, such other amount as the Certificate Insurer and such
successor may agree upon in writing; provided however that if the Trustee is
acting as successor Servicer in no event shall the Servicing Fee be less than
the amount paid to the initial Servicer hereunder). Such fee shall be calculated
and payable monthly only from the amounts received in respect of interest on
such Mortgage Loan and shall be computed on the basis of the same principal
amount and for the period respecting which any related interest payment on a
Mortgage Loan is computed. The Servicing Fee includes any servicing fees owed or
payable to any Subservicer.
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SERVICING OFFICER: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee and the Certificateholders by the Servicer, as such list may from
time to time be amended.
SPECIAL ADVANCE: As defined in Section 5.18(b) hereof.
SPECIFIED OVERCOLLATERALIZED AMOUNT: An amount equal to:
(a) during the period commencing on the Closing Date and ending on
the later of the thirtieth Distribution Date following the
Closing Date and the date upon which the Pool Principal
Balance is less than or equal to 50% of the Original Pool
Principal Balance, the greater of (i) the Base Specified
Overcollateralization Amount, and (ii) 86.25% of the
Delinquency Amount;
(b) thereafter, the greatest of:
(i) the product of 8.2% times the Pool
Principal Balance as of such determination date,
(ii) 86.25% of the Delinquency Amount,
(iii) 0.75% of the Original Pool Principal
Balance, or
(iv) the aggregate Principal Balance of the
three largest Mortgage Loans;
provided, however, that for any date occurring after the end
of the period in clause (a) above, if the average Delinquency
Ratio for the three calendar month period then most recently
ended exceeds 9.25%, the Specified Overcollateralization
Amount shall be no less than the Specified
Overcollateralization Amount as of the previous Distribution
Date; and provided further that the Certificate Insurer may,
in its sole discretion, at the request of the Servicer, reduce
the Specified Overcollateralization Amount for the purpose of
reducing or eliminating, in whole or in part, its application
hereunder. The Trustee and the Rating Agencies shall be
notified in writing of any such modification prior to the
Distribution Date with respect to which such reduction is to
take effect, and such modification shall not take effect
unless each Rating Agency shall have confirmed that such
modification would not result in a reduction or withdrawal of
the then current ratings of the Certificates.
STARTUP DAY: The day designated as such pursuant to Section
2.07(b) hereof.
SUBSERVICERS: HomeAmerican Credit, Inc., d/b/a Upland
Mortgage, a Pennsylvania corporation, or its successor in interest and American
Business Mortgage Services, Inc., a New Jersey corporation, or its successor in
interest.
SUBSERVICING AGREEMENT: The agreement between the Servicer and
the Subservicers relating to subservicing and/or administration of certain
Mortgage Loans as provided in Section 5.13, a copy of which shall be delivered,
along with any modifications thereto, to the Trustee and the Certificate
Insurer.
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SUBSTITUTION ADJUSTMENT: As to any date on which a
substitution occurs pursuant to Sections 2.06 or 3.03, the amount (if any) by
which the aggregate principal balances (after application of principal payments
received on or before the date of substitution) of any Qualified Substitute
Mortgage Loans as of the date of substitution, are less than the aggregate of
the Principal Balances of the related Deleted Mortgage Loans together with 30
days' interest thereon at the Mortgage Interest Rate.
TAX MATTERS PERSON: The Person or Persons appointed pursuant
to Section 10.15 from time to time to act as the "tax matters person" (within
the meaning of the REMIC Provisions) of the REMIC Trust.
TAX RETURN: The federal income tax return on Internal Revenue
Service Form 1066, "U.S. Real Estate Mortgage Investment Conduit Income Tax
Return," including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC created hereunder due to its classification
as a REMIC under the REMIC Provisions, together with any and all other
information reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provision of federal, state
or local tax laws.
TRANSFER: Any direct or indirect transfer, sale, pledge,
hypothecation or other form of assignment of any Ownership Interest in a
Certificate.
TRANSFER AFFIDAVIT AND AGREEMENT: As defined in Section
4.02(j)(ii).
TRANSFEREE: Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
TRANSFEROR: Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
TRUST: ABFS Mortgage Loan Trust 2001-1, the trust created
hereunder.
TRUSTEE: The Chase Manhattan Bank, a New York banking
corporation, or its successor-in-interest, or any successor trustee appointed as
herein provided.
TRUSTEE FEE: As to any Distribution Date, the fee payable to
the Trustee in respect of its services as Trustee that accrues at a monthly rate
equal to one-twelfth of 0.00625% on the Principal Balance of each Mortgage Loan
as of the immediately preceding Due Date.
TRUSTEE'S MORTGAGE FILE: The documents delivered to the
Trustee or its designated agent pursuant to Section 2.05.
TRUSTEE'S REMITTANCE REPORT: As defined in Section 6.07.
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TRUST FUND: The segregated pool of assets subject hereto,
constituting the trust created hereby and to be administered hereunder,
consisting of: (i) such Mortgage Loans as from time to time are subject to this
Agreement, together with the Mortgage Files relating thereto, and together with
all collections thereon and proceeds thereof; (ii) any REO Property, together
with all collections thereon and proceeds thereof; (iii) the Trustee's rights
with respect to the Mortgage Loans under all insurance policies required to be
maintained pursuant to this Agreement and any proceeds thereof; any other
security for such Mortgage Loan, including, without limitation, pledged
equipment, inventory and working capital and assignments of rights and interests
made by the related mortgagor; (v) the rights and remedies of the Trustee
against any Person making any representation or warranty to the Trustee
hereunder, to the extent provided herein; (vi) all rights of the Depositor under
the Unaffiliated Seller's Agreement; (vii) each 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 and (viii) all
proceeds of the foregoing.
TWELVE MONTH LOSS AMOUNT: With respect to any Distribution
Date, an amount equal to the aggregate of all Liquidated Loan Losses on the
Mortgage Loans which became Liquidated Mortgage Loans during the 12 preceding
Due Periods.
UNAFFILIATED SELLER: ABFS 2001-1, Inc.
UNAFFILIATED SELLER'S AGREEMENT: The Unaffiliated Seller's
Agreement, dated as of the date hereof, among the Unaffiliated Seller, the
Originators and the Depositor relating to the sale of the Mortgage Loans from
the Originators to the Unaffiliated Seller and from the Unaffiliated Seller to
the Depositor.
UNDERWRITERS: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated and Bear
▇▇▇▇▇▇▇ & Co., Inc.
UNDERWRITING AGREEMENT: The Underwriting Agreement, dated as
of March 9, 2001 between the Depositor and the Representative.
UNDERWRITING GUIDELINES: The underwriting guidelines of the
Originators, a copy of which is attached as an exhibit to the Unaffiliated
Seller's Agreement.
UNITED STATES PERSON: A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States, any state thereof or the District of
Columbia, an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States or a trust if a court within the United States can exercise
primary jurisdiction over its administration and at least one United States
fiduciary has the authority to control all substantial decisions of the trust.
Section 1.02 Provisions of General Application. (a) All
accounting terms not specifically defined herein shall be construed in
accordance with GAAP.
(b) The terms defined in this Article include the plural as
well as the singular.
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(c) The words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole. All references to
Articles and Sections shall be deemed to refer to Articles and Sections of this
Agreement.
(d) Any reference to statutes are to be construed as including
all statutory provisions consolidating, amending or replacing the statute to
which reference is made and all regulations promulgated pursuant to such
statutes.
(e) All calculations of interest (other than with respect to
the Mortgage Loans) provided for herein shall be made on the basis of a 360-day
year consisting of twelve 30-day months. All calculations of interest with
respect to any Mortgage Loan provided for herein shall be made in accordance
with the terms of the related Mortgage Note and Mortgage or, if such documents
do not specify the basis upon which interest accrues thereon, on the basis of a
360-day year consisting of twelve 30-day months, to the extent permitted by
applicable law.
(f) Any Mortgage Loan payment is deemed to be received on the
date such payment is actually received by the Servicer, provided, however, that
for purposes of calculating distributions on the Certificates prepayments with
respect to any Mortgage Loan are deemed to be received on the date they are
applied in accordance with Accepted Servicing Practices consistent with the
terms of the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
Section 1.03 Business Day Certificate. On the Closing Date
(with respect to the calendar year 2001) and thereafter, within 15 days prior to
the end of each calendar year while this Agreement remains in effect (with
respect to the succeeding calendar years), the Servicer shall provide to the
Trustee and the Depositor a certificate of a Servicing Officer specifying the
days on which banking institutions in the State of Pennsylvania are authorized
or obligated by law, executive order or governmental decree to be closed.
ARTICLE II
ESTABLISHMENT OF THE TRUST
SALE AND CONVEYANCE OF THE TRUST FUND
Section 2.01 Establishment of the Trust. The Depositor does
hereby establish, pursuant to the further provisions of this Agreement and the
laws of the State of New York, an express trust to be known, for convenience, as
"ABFS Mortgage Loan Trust 2001-1" and does hereby appoint The Chase Manhattan
Bank as Trustee in accordance with the provisions of this Agreement.
Section 2.02 Purchase and Sale of Mortgage Loans. The
Depositor does hereby sell, transfer, assign, set over and convey to the Trustee
without recourse but subject to the terms and provisions of this Agreement, all
of the right, title and interest of the Depositor in and to the Mortgage Loans,
including the outstanding principal as of and interest due and accruing after
the Cut-off Date on such Mortgage Loans, and all other assets included or to be
included in the Trust Fund for the benefit of the Certificateholders and the
Certificate Insurer. In connection with such transfer and assignment, and
pursuant to Section 2.07 of the Unaffiliated Seller's Agreement, the Depositor
does hereby also irrevocably transfer, assign, set over and otherwise convey to
the Trustee all of its rights under the Unaffiliated Seller's Agreement,
including, without limitation, its right to exercise the remedies created by
Sections 2.06 and 3.05 of the Unaffiliated Seller's Agreement for defective
documentation and for breaches of representations and warranties, agreements and
covenants of the Unaffiliated Seller and the Originators contained in Sections
3.01, 3.02 and 3.03 of the Unaffiliated Seller's Agreement.
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Section 2.03 [Reserved].
Section 2.04 Possession of Mortgage Files; Access to Mortgage
Files. (a) Upon the issuance of the Certificates, the ownership of each Mortgage
Note, the Mortgage and the contents of the related Mortgage File related to each
Mortgage Loan is vested in the Trustee for the benefit of the Certificateholders
and the Certificate Insurer.
(b) Pursuant to Section 2.05 of the Unaffiliated Seller's
Agreement, the Depositor has delivered or caused to be delivered to the
Trustee's Mortgage File related to each Mortgage Loan to the Trustee.
The Collateral Agent, on behalf of the Trustee, will be the
custodian or may, with the consent of the Certificate Insurer, enter into a
custodial agreement pursuant to which the Trustee will appoint a custodian (the
"Collateral Agent") to hold the Mortgage Files in trust for the benefit of all
present and future Certificateholders and the Certificate Insurer; provided,
however, that the custodian so appointed shall in no event be the Depositor or
the Servicer or any Person known to a Responsible Officer of the Trustee to be
an Affiliate of the Depositor or the Servicer and shall be approved by the
Certificate Insurer.
The Custodian shall afford the Depositor, the Certificate
Insurer and the Servicer reasonable access to all records and documentation
regarding the Mortgage Loans relating to this Agreement, such access being
afforded upon reasonable request and during normal business hours at the offices
of the Custodian at customary charges.
Section 2.05 Delivery of Mortgage Loan Documents. (a) In
connection with the transfer and assignment of the Mortgage Loans, the Depositor
does hereby with respect to the Mortgage Loans, deliver or cause to be delivered
to the Collateral Agent, on behalf of the Trustee the following documents or
instruments with respect to each Mortgage Loan so transferred or assigned:
(i) the original Mortgage Note, endorsed without recourse in
blank by the related Originator, including all intervening endorsements
showing a complete chain of endorsement;
(ii) the related Mortgage with evidence of recording indicated
thereon or a copy thereof certified by the applicable recording office;
(iii) the recorded mortgage assignment, or copy thereof
certified by the applicable recording office, if any, showing a
complete chain of assignment from the originator of the related
Mortgage Loan to the related Originator (which assignment may, at such
Originator's option, be combined with the assignment referred to in
subpart (iv) hereof);
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(iv) a mortgage assignment in recordable form (which, if
acceptable for recording in the relevant jurisdiction, may be included
in a blanket assignment or assignments) of each Mortgage from the
related Originator to the Trustee;
(v) originals of all assumption, modification and substitution
agreements in those instances where the terms or provisions of a
Mortgage or Mortgage Note have been modified or such Mortgage or
Mortgage Note has been assumed; and
(vi) an original title insurance policy (or (A) a copy of the
title insurance policy, or (B) a binder thereof or copy of such binder
together with a certificate from the related Originator that the
original Mortgage has been delivered to the title insurance company
that issued such binder for recordation).
In instances where the original recorded Mortgage and any
original recorded assignment thereof pursuant to clause (iii) above cannot be
delivered by the Depositor to the Collateral Agent on behalf of the Trustee
prior to or concurrently with the execution and delivery of this Agreement, due
to a delay in connection with recording, the Depositor may:
(x) In lieu of delivering such original recorded Mortgage,
deliver to the Trustee a copy thereof provided that the related Originator
certifies that the original Mortgage has been delivered to a title insurance
company for recordation after receipt of its policy of title insurance or binder
therefor; and
(y) In lieu of delivering the original recorded assignment,
deliver to the Trustee a copy of the assignment certified by the related
Originator.
The Trustee shall promptly upon receipt thereof, with respect
to each Mortgage Note described in (i) above and each assignment described in
(iv) above, endorse such Mortgage Note and assignment as follows: "The Chase
Manhattan Bank, as Trustee under the Pooling and Servicing Agreement dated as of
March 1, 2001, ABFS Mortgage Loan Trust 2001-1."
As promptly as practicable, but in any event within thirty
(30) days from the Closing Date, the related Originator shall cause to be
recorded, at the related Originator's expense, in the appropriate public office
for real property records, the assignments of the Mortgages to the Trustee.
All original documents relating to the Mortgage Loans which
are not delivered to the Trustee, as permitted by Section 2.05(a) of the
Unaffiliated Seller's Agreement and this Section 2.05(a), are and shall be held
by the related Originator, the Unaffiliated Seller or the Servicer in trust for
the benefit of the Trustee on behalf of the Certificateholders.
(b) Within thirty (30) days following delivery of the Mortgage
Files to the Collateral Agent on behalf of the Trustee, the Collateral Agent
will review each Mortgage File to ascertain that all required documents set
forth in Section 2.05(a) (other than clause (v) thereof) have been executed and
received, and that such documents relate to the Mortgage Loans identified on the
Mortgage Loan Schedule, and in so doing the Trustee may rely on the purported
due execution and genuineness of any signature thereon. If within such 30-day
period (or, with respect to any Qualified Substitute Mortgage Loan, within
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thirty (30) days after the assignment thereof) the Collateral Agent on behalf of
the Trustee finds any document constituting a part of a Mortgage File not to
have been executed or received or to be unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule, the Collateral Agent shall promptly
notify the Servicer, the Trustee and the Certificate Insurer, and the Servicer
shall have a period of sixty (60) days after such notice within which to correct
or cure any such defect. Each original recorded assignment of a Mortgage shall
be delivered to the Trustee within ten (10) days following the date on which it
is returned to the Servicer by the office with which such assignment was filed
for recording and within ten (10) days following receipt by the Trustee or the
Trustee shall review such assignment to confirm the information specified above
with respect to the documents constituting the Mortgage File. Upon receipt by
the Trustee of the recorded assignment such recorded assignment shall become
part of the Mortgage File. The Trustee shall notify the Servicer of any defect
in such assignment based on such review. The Servicer shall have a period of 60
days following such notice to correct or cure such defect. In the event that the
Servicer fails to record an assignment of a Mortgage as herein provided the
Trustee shall, at the Servicer's expense, use reasonable efforts to prepare and,
if required hereunder, file such assignments for recordation in the appropriate
real property or other records and the Servicer hereby appoints the Trustee as
its attorney-in-fact with full power and authority acting in its stead for the
purpose of such preparation, execution and filing.
(c) It is intended that the conveyance of the Mortgage Loans
and other property by the Depositor to the Trustee as provided in this Section
2.05 and Section 2.02 be, and be construed as, a sale of the Mortgage Loans and
such other property by the Depositor to the Trustee for the benefit of the
Certificateholders. It is, further, not intended that such conveyance be deemed
a pledge of the Mortgage Loans or such other property by the Depositor to the
Trustee to secure a debt or other obligation of the Depositor. However, in the
event that the Mortgage Loans or any of such other property are held to be
property of the Depositor, or if for any reason this Agreement is held or deemed
to create a security interest in the Mortgage Loans or any of such other
property, then it is intended that: (i) this Agreement shall also be deemed to
be a security agreement within the meaning of the Uniform Commercial Code; (ii)
the conveyance provided for in this Section shall be deemed to be a grant by the
Depositor to the Trustee of a security interest in all of the Depositor's right,
title and interest in and to the Mortgage Loans, the Trust Fund and such other
property and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Certificate Account, whether in the form of cash, instruments,
securities or other property; (iii) the possession by the Trustee or its agent
of the Mortgage Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code; and (iv) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor and the Trustee
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, the Trust Fund or any of such other property,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement.
29
(d) Without diminution of the requirements of Sections 2.04(c)
and this Section 2.05, all original documents relating to the Mortgage Loans
that are not delivered to the Trustee, are and shall be held by the Servicer in
trust for the benefit of the Trustee on behalf of the Certificateholders and the
Certificate Insurer. In the event that any such original document is required
pursuant to the terms of this Section 2.05 to be a part of a Mortgage File, such
document shall be delivered promptly to the Trustee pursuant to the Unaffiliated
Seller's Agreement. In acting as custodian of any such original document, the
Servicer agrees further that it does not and will not have or assert any
beneficial ownership interest in the Mortgage Loans or the Mortgage Files.
Promptly upon the Depositor's and the Trust's acquisition thereof and the
Servicer's receipt thereof, the Servicer on behalf of the Trust shall ▇▇▇▇
conspicuously each original document not delivered to the Trustee, and the
Unaffiliated Seller's master data processing records evidencing each Mortgage
Loan with a legend, acceptable to the Trustee, evidencing that the Trust has
purchased the Mortgage Loans and all right and title thereto and interest
therein pursuant to the Unaffiliated Seller's Agreement and this Agreement.
Section 2.06 Acceptance by Trustee of the Trust Fund; Certain
Substitutions; Certification by Trustee. (a) The Trustee, agrees to execute and
deliver to the Depositor, the Certificate Insurer, the Servicer and the
Unaffiliated Seller on or prior to the Closing Date an acknowledgment of receipt
of the Certificate Insurance Policy and, on or prior to the Closing Date, with
respect to each Mortgage Loan transferred on such date, the original Mortgage
Note (with any exceptions noted), in the form attached as Exhibit G hereto and
declares that it will hold such documents and any amendments, replacements or
supplements thereto, as well as any other assets included in the definition of
Trust Fund and delivered to the Trustee, as Trustee in trust upon and subject to
the conditions set forth herein for the benefit of the Certificateholders and
the Certificate Insurer. The Trustee agrees, for the benefit of the
Certificateholders and the Certificate Insurer, to review (or cause to be
reviewed) each Trustee's Mortgage File within thirty (30) days after the Closing
Date, and to deliver to the Unaffiliated Seller, the Servicer, the Depositor and
the Certificate Insurer a certification in the form attached hereto as Exhibit F
to the effect that, as to each Mortgage Loan listed in the related Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in such certification as not covered by such
certification), (i) all documents required to be delivered to it pursuant to
Section 2.05 (other than the items listed in clause (a)(v) thereof) are in its
possession, (ii) each such document has been reviewed by it and has not been
mutilated, damaged, torn or otherwise physically altered (handwritten additions,
changes or corrections shall not constitute physical alteration if initialed by
the Mortgagor), appears regular on its face and relates to such Mortgage Loan,
and (iii) based on its examination and only as to the foregoing documents, the
information set forth on the Mortgage Loan Schedule as to the information set
forth in (i), (ii), (v) and (vi) of the definition of "Mortgage Loan Schedule"
set forth herein accurately reflects the information set forth in the Trustee's
Mortgage File delivered on such date. The Trustee shall be 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 are other than what they
purport to be on their face.
30
(b) Within ninety (90) days of the Closing Date, with respect
to the Mortgage Loans transferred on such date; the Trustee shall deliver (or
cause to be delivered) to the Servicer, the Unaffiliated Seller, the Depositor,
the Rating Agencies and the Certificate Insurer a final certification in the
form attached hereto as Exhibit G to the effect that, as to each Mortgage Loan
listed in the related Mortgage Loan Schedule (other than any Mortgage Loan paid
in full or any Mortgage Loan specifically identified in such certification as
not covered by such certification), (i) all documents required to be delivered
to it pursuant to Section 2.05 (other than the items listed in clause (a)(v)
thereof) are in its possession, (ii) each such document has been reviewed by it
and has not been mutilated, damaged, torn or otherwise physically altered
(handwritten additions, changes or corrections shall not constitute physical
alteration if initialed by the Mortgagor), appears regular on its face and
relates to such Mortgage Loan, and (iii) based on its examination and only as to
the foregoing documents, the information set forth in (i), (ii), (v) and (vi) of
the definition of "Mortgage Loan Schedule" set forth herein accurately reflects
the information set forth in the Trustee's Mortgage File delivered on such date.
(c) If the Trustee during the process of reviewing the
Trustee's Mortgage Files finds any document constituting a part of a Trustee's
Mortgage File which is not executed, has not been received, is unrelated to the
Mortgage Loan identified in the related Mortgage Loan Schedule, or does not
conform to the requirements of Section 2.05 or the description thereof as set
forth in the related Mortgage Loan Schedule, the Trustee or the Certificate
Insurer, as applicable, shall promptly so notify the Servicer, the Unaffiliated
Seller and the Certificate Insurer. In performing any such review, the Trustee
may conclusively rely on the Unaffiliated 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 2.05 (other than those listed in clause (v)
thereof) have been executed and received and relate to the Mortgage Files
identified in the related 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. Pursuant to the Unaffiliated Seller's Agreement,
the Unaffiliated Seller and the Originators have agreed to use reasonable
efforts to cause to be remedied a material defect in a document constituting
part of a Mortgage File of which it is so notified by the Trustee. If, however,
within sixty (60) days after the Trustee's notice to it respecting such defect
the Unaffiliated Seller has not caused to be remedied the defect and the defect
materially and adversely affects the value of, or the interest of the
Certificateholders in the related Mortgage Loan or the interests of the
Certificate Insurer, the Unaffiliated Seller and the Originators will be
obligated, pursuant to the Unaffiliated Seller's Agreement, to either (i)
substitute in lieu of such Mortgage Loan a Qualified Substitute Mortgage Loan in
the manner and subject to the conditions set forth in Section 3.03 or (ii)
purchase such Mortgage Loan at a purchase price equal to the Principal Balance
of such Mortgage Loan as of the date of purchase, plus all accrued and unpaid
interest on such Principal Balance computed at the Mortgage Interest Rate, net
of the Servicing Fee if the Unaffiliated Seller or an Originator, as applicable,
is the Servicer, plus the amount of any unreimbursed Servicing Advances made by
the Servicer with respect to such Mortgage Loan, which purchase price shall be
deposited in the Collection Account on the next succeeding Servicer Distribution
Date, after deducting therefrom any amounts received in respect of such
repurchased Mortgage Loan or Loans and being held in the Collection Account for
future distribution to the extent such amounts have not yet been applied to
principal or interest on such Mortgage Loan (the "Loan Repurchase Price"). For
purposes of calculating the Available Funds, any Loan Repurchase Price or
Substitution Adjustment that is paid shall be deemed deposited in the
Certificate Account in the Due Period preceding such Servicer Distribution Date.
31
(d) Upon receipt by the Trustee of a certification of a
Servicing Officer of such substitution or purchase and, in the case of a
substitution, upon receipt of the related Trustee's Mortgage File, and the
deposit of the amounts described above in the Collection Account (which
certification shall be in the form of Exhibit J hereto), the Trustee shall
release to the Servicer for release to the Unaffiliated Seller the related
Trustee's Mortgage File and shall execute, without recourse, and deliver such
instruments of transfer furnished by the Unaffiliated Seller as may be necessary
to transfer such Mortgage Loan to the Unaffiliated Seller. The Trustee shall
notify the Certificate Insurer if the Unaffiliated Seller fails to repurchase or
substitute for a Mortgage Loan in accordance with the foregoing.
Section 2.07 Designations under REMIC Provisions; Designation
of Startup Day. (a) REMIC I will consist of all of the assets of the Trust Fund
and will be evidenced by the Class LT-1 Interest and LT-AIO Interest (the
"Subsidiary REMIC Regular Interests") which will be uncertificated and will
represent the "regular interests" in REMIC I. REMIC II will consist of the
Subsidiary REMIC Regular Interests and will be evidenced by the IT-Accrual
Interest (the "Intermediate REMIC Accrual Class"), and the Class IT-A-1 Interest
(the "Intermediate REMIC Accretion Directed Class", together with the
Intermediate REMIC Accrual Class, the "Intermediate REMIC Regular Interests")
which will be uncertificated and will represent the "regular interests" in REMIC
II. Class R-I Interest and Class R-II Interest will represent the sole class of
residual interest in each of REMIC I and REMIC II , respectively. The Trustee
will hold the Subsidiary REMIC Regular Interests and Intermediate REMIC Regular
Interests. The Master REMIC will consist of the Intermediate REMIC Regular
Interests and will be evidenced by the Class A-1, Class A-IO and Class X
Certificates (which will represent the "regular interests" in the Master REMIC)
and the Class R-III Interest as the single "residual interest" in the Master
REMIC. The Class R Certificates will represent the beneficial ownership of the
Class R-I, R-II and R-III Interests.
(i) The following table sets forth characteristics of the Certificates,
each of which, except for the Class R Certificates, is hereby designated as a
"regular interest" in the Master REMIC:
---------------------------------------------------------------------------------------------------------------
Original Certificate
Principal Pass-Through
Balance Rate
------------------------------ ------------------------------------ -------------------------------------------
Class A-1 $275,000,000 6.28%(1)
------------------------------ ------------------------------------ -------------------------------------------
Class A-IO (2) 6%
------------------------------ ------------------------------------ -------------------------------------------
Class X (3) (4)
------------------------------ ------------------------------------ -------------------------------------------
Class R (5)
---------------------------------------------------------------------------------------------------------------
32
(1) 6.78% for each Distribution Date, after the Clean Up Call
Date. Subject to a cap equal to the weighted average of
Class LT-A1 and Class LT-AIO, with the Class LT-AIO
subject to a cap equal to the excess of the Net Weighted
Average Interest Rate over 6% on each Distribution Date
until and including the Distribution Date in September,
2003.
(2) On each Distribution Date up to and including the
Distribution Date in October, 2003, the Class AIO
Certificates will have a notional balance pari passu, and
for each Distribution Date thereafter, $0.
(3) The Class X Certificates will be comprised of two
components, Class PO Component and Class IO Component,
each of which is hereby designated a REMIC regular
interest for federal income tax purposes. The Class PO
Component will have a principal balance equal to the
excess of the principal balance of the Mortgage Loans over
the principal balance of the Class A-1 Certificates and
will not bear interest. Class IO Component will have a
notional principal balance equal to the aggregate
principal balance of the Mortgage Loans.
(4) The pass-through rate in respect of the Class IO Component
will be the excess of: (i) the weighted average of Class
LT-A1 and Class LT-AIO, with the Class LT-AIO subject to a
cap equal to the excess of the (x) Net Weighted Average
Interest Rate over (y) 6% on each Distribution Date up to
and including the Distribution Date in October, 2003 over
(ii) the product of: (A) two and (B) the weighted average
pass-through rate of the Intermediate REMIC Regular
Interests, where the Intermediate REMIC Accrual Class is
subject to a cap equal to zero and the Intermediate REMIC
Accretion Directed Class is subject to a cap equal to the
pass-through rate on its corresponding class.
(5) The Class R Certificates will represent the beneficial
ownership of the R-I, R-II and R-III Interests.
(ii) The Intermediate REMIC Regular Interests shall have the following
principal balances, pass-through rates and Corresponding Classes of
Certificates in the manner set forth in the following table:
33
-----------------------------------------------------------------------------------------------------------------
Corresponding
REMIC Initial Interest Class of Master
Interests Balance Rate REMIC Interest
---------------------------- ----------------------------- ------------------------- ----------------------------
IT-A-1 1/2 Corresponding Master Net Weighted A-1
REMIC Class balance Average Mortgage
Interest Rate
---------------------------- ----------------------------- ------------------------- ----------------------------
IT-Accrual Interest 1/2 Pool Principal Net Weighted N/A
Balance plus 1/2 Average Mortgage
Overcollateralized Amount Interest Rate
---------------------------- ----------------------------- ------------------------- ----------------------------
Initial Overcollateralized
Amount
---------------------------- ----------------------------- ------------------------- ----------------------------
IT-A-IO (2) 6% N/A
-----------------------------------------------------------------------------------------------------------------
------------------
(1) On each Distribution Date until and including the Distribution
Date in September, 2003, the Class IT-A-IO Interest will have
a notional balance equal to the principal balance of the
LT-A-IO Interest. For each Distribution Date, $0.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of
the principal balances of the Intermediate REMIC Accretion
Directed Class and will be accrued and added to the principal
balance of the Intermediate REMIC Accrual Class. On each
Distribution Date, the increase in the principal balance of
the Intermediate REMIC Accrual Class may not exceed interest
accruals for such Distribution Date for the Intermediate REMIC
Accrual Class. In the event that: (i) 50% of the increase in
the Overcollateralized Amount exceeds (ii) interest accruals
on the Intermediate REMIC Accrual Class for such Distribution
Date, the excess for such Distribution Date (accumulated with
all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for
purposes of determining the amount of interest accrual on the
Intermediate REMIC Accrual Class payable as principal on the
Intermediate REMIC Accretion Directed Class on the next
Distribution Date pursuant to the first sentence of this
paragraph. All payments of scheduled principal and prepayments
of principal generated by the Mortgage Loans shall be
allocated 50% to the Intermediate REMIC Accrual Class, and 50%
to the Intermediate REMIC Accretion Directed Class, until paid
in full. Notwithstanding the above, principal payments
allocated to the Class X Certificates that result in the
reduction in the Overcollateralized Amount shall be allocated
to the Intermediate REMIC Accrual Class (until paid in full).
Realized losses shall be applied so that after all
distributions have been made on each Distribution Date (i) the
principal balances of each of the Intermediate REMIC Accretion
Directed Class is equal to 50% of the principal balance of
their Corresponding Class, and (ii) the Intermediate REMIC
Accrual Class is equal to 50% of the aggregate principal
balance of the Mortgage Pool plus 50% of the
Overcollateralized Amount.
(iii) The Subsidiary REMIC Regular Interests shall have the following
principal balances, pass-through rates and Corresponding Classes of
Certificates in the manner set forth in the following table:
34
----------------------------------------------------------------------------------------------------------------
Corresponding
REMIC Initial Interest Class of Master
Interests Balance Rate REMIC Interest
------------------------ ----------------------------- ---------------------------- ----------------------------
LT-A1 (Pool Principal Balance) Net Weighted Average N/A
less $27,500,000 Mortgage Interest Rate
------------------------ ----------------------------- ---------------------------- ----------------------------
LT-AIO $27,500,000 Net Weighted Average N/A
Mortgage Interest Rate
----------------------------------------------------------------------------------------------------------------
-------------------
On each Distribution Date, all Realized losses, prepayments and
payments of scheduled principal will be allocated to Class LT-A1 until
paid in full or eliminated by such losses, and all additional Realized
losses, prepayments and payments of scheduled principal will be
allocated to Class LT-AIO.
(b) The Closing Date will be the "startup day" of each REMIC
created hereunder within the meaning of Section 860G(a)(9) of the Code.
Section 2.08 Execution of Certificates. The Trustee
acknowledges the assignment to it of the Mortgage Loans and the delivery of the
Trustee's Mortgage Files relating thereto to it and, concurrently with such
delivery, has executed, authenticated and delivered to or upon the order of the
Depositor, in exchange for the Mortgage Loans, the Trustee's Mortgage Files and
the other assets included in the definition of Trust Fund, Certificates duly
authenticated by the Trustee in Authorized Denominations evidencing the entire
ownership of the Trust Fund.
Section 2.09 Application of Principal and Interest. In the
event that Net Liquidation Proceeds on a Liquidated Mortgage Loan are less than
the Principal Balance of the related Mortgage Loan plus accrued interest
thereon, or any Mortgagor makes a partial payment of any Monthly Payment due on
a Mortgage Loan, such Net Liquidation Proceeds or partial payment shall be
applied as provided in the related Mortgage Note, and if not so provided, first
to interest accrued at the Mortgage Interest Rate and then to principal.
Section 2.10 Grant of Security Interest. (a) Except with
respect to the REMIC Provisions, it is the intention of the parties hereto that
the conveyance by the Depositor of the Trust Fund to the Trustee on behalf of
the Trust shall constitute a purchase and sale of such Trust Fund and not a
loan. In the event, however, that a court of competent jurisdiction were to hold
that the transaction evidenced hereby constitutes a loan and not a purchase and
sale, it is the intention of the parties hereto that this Agreement shall
constitute a security agreement under applicable law, and that the Depositor
shall be deemed to have granted to the Trustee, on behalf of the Trust, a first
priority perfected security interest in all of the Depositor's right, title and
interest in, to and under the Trust Fund. The conveyance by the Depositor of the
Trust Fund to the Trustee on behalf of the Trust shall not constitute and is not
intended to result in an assumption by the Trustee or any Certificateholder of
any obligation of the Unaffiliated Seller or any other Person in connection with
the Trust Fund.
(b) The Depositor and the Servicer shall take no action
inconsistent with the Trust's ownership of the Trust Fund and each shall
indicate or shall cause to be indicated in its records and records held on its
behalf that ownership of each Mortgage Loan and the assets in the Trust Fund are
held by the Trustee on behalf of the Trust. In addition, the Depositor and the
Servicer shall respond to any inquiries from third parties with respect to
ownership of a Mortgage Loan or any other asset in the Trust Fund by stating
that it is not the owner of such asset and that ownership of such Mortgage Loan
or other Trust Fund asset is held by the Trustee on behalf of the Trust.
35
Section 2.11 Further Action Evidencing Assignments. (a) The
Servicer agrees that, from time to time, at its expense, it shall cause the
Unaffiliated Seller (and the Depositor on behalf of itself also agrees that it
shall), promptly to execute and deliver all further instruments and documents,
and take all further action, that may be necessary or appropriate, or that the
Servicer, the Certificate Insurer or the Trustee may reasonably request, in
order to perfect, protect or more fully evidence the transfer of ownership of
the Trust Fund or to enable the Trustee to exercise or enforce any of its rights
hereunder. Without limiting the generality of the foregoing, the Servicer and
the Depositor will, upon the request of the Servicer, the Certificate Insurer or
the Trustee, execute and file (or cause to be executed and filed) such real
estate filings, financing or continuation statements, or amendments thereto or
assignments thereof, and such other instruments or notices, as may be necessary
or appropriate.
(b) The Depositor hereby grants to the Servicer and the
Trustee powers of attorney to execute all documents on its behalf under this
Agreement and the Unaffiliated Seller's Agreement as may be necessary or
desirable to effectuate the foregoing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations of the Servicer and the
Unaffiliated Seller. The Servicer hereby represents and warrants to the Trustee,
the Depositor, the Certificate Insurer and the Certificateholders as of the
Closing Date and during the term of this Agreement that:
(a) Each of the Unaffiliated Seller, the Servicer and the
Subservicers is a corporation duly organized, validly existing and in good
standing under the laws of their respective states of incorporation and has the
corporate power to own its assets and to transact the business in which it is
currently engaged. Each of the Unaffiliated Seller, the Servicer and the
Subservicers is duly qualified to do business as a foreign corporation 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 or the performance of its
obligations hereunder requires such qualification and in which the failure so to
qualify could reasonably be expected to have a material adverse effect on the
business, properties, assets, or condition (financial or other) of the
Unaffiliated Seller, the Servicer or the Subservicers or the performance of
their respective obligations hereunder;
(b) The Unaffiliated Seller and the Servicer each has the
power and authority to make, execute, deliver and perform this Agreement and all
of the transactions contemplated under this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. When executed and delivered, this Agreement will constitute
the legal, valid and binding obligation of the Unaffiliated Seller and the
Servicer, enforceable in accordance with its terms, except as enforcement of
such terms may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting the rights of creditors generally and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
36
(c) Neither the Unaffiliated Seller nor the Servicer is
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 which consent already has not been
obtained in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except such as have been obtained prior to the
Closing Date;
(d) The execution, delivery and performance of this Agreement
by the Unaffiliated Seller and the Servicer will not violate any provision of
any existing law or regulation or any order or decree of any court or the
Articles of Incorporation or Bylaws of the Unaffiliated Seller or the Servicer,
respectively, or constitute a breach of any mortgage, indenture, contract or
other agreement to which the Unaffiliated Seller or the Servicer, respectively,
is a party or by which it may be bound;
(e) There is no action, suit, proceeding or investigation
pending or threatened against the Servicer, the Unaffiliated Seller or the
Subservicers which, either in any one instance or in the aggregate, is, likely
to result in any material adverse change in the business, operations, financial
condition, properties, or assets of the Servicer, the Unaffiliated Seller or the
Subservicers, or in any material impairment of the right or ability of any of
them to carry on its business substantially as now conducted, or in any material
liability on the part of any of them, or which would draw into question the
validity of this Agreement, the Certificates, or the Mortgage Loans or of any
action taken or to be taken in connection with the obligations of the
Unaffiliated Seller or the Servicer contemplated herein or therein, or which
would be likely to impair materially the ability of the Unaffiliated Seller or
the Servicer to perform its obligations hereunder;
(f) Neither this Agreement nor any statement, report, or other
document furnished or to be furnished by the Servicer, the Unaffiliated Seller
or the Subservicer pursuant to this Agreement, or the Insurance and
Reimbursement Agreement or in connection with the transactions contemplated
hereby, including, without limitation, the sale or placement of the
Certificates, contains any untrue statement of fact provided by or on behalf of
the Unaffiliated Seller or the Servicer or omits to state a fact necessary to
make the statements provided by or on behalf of the Unaffiliated Seller or the
Servicer contained herein or therein not misleading:
(g) Neither the Unaffiliated Seller nor the Servicer believes,
nor does either have any reason or cause to believe, that it cannot perform each
and every covenant contained in this Agreement;
(h) The transfer, assignment, and conveyance of the Mortgage
Loans by the Unaffiliated Seller pursuant to this Agreement is not subject to
the bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction;
(i) The Unaffiliated Seller is solvent and will not as a
result of this Agreement and the undertakings of the Unaffiliated Seller
hereunder be rendered insolvent; and
37
(j) None of the Unaffiliated Seller, the Servicer or the
Subservicers is an "investment company" or a company "controlled by an
investment company," within the meaning of the Investment Company Act of 1940,
as amended.
(k) Immediately prior to the transfer and assignment by the
Depositor to the Trustee, the Depositor had good title to, and was the sole
owner of each Mortgage Loan, free of any interest of any other Person, and the
Depositor has transferred all right, title and interest in each Mortgage Loan to
the Trustee. The transfer of the Mortgage Note and the Mortgage as and in the
manner contemplated by this Agreement is sufficient either (i) fully to transfer
to the Trustee, for the benefit of the Certificateholders and the Certificate
Insurer, all right, title, and interest of the Depositor thereto as note holder
and mortgagee or (ii) to grant to the Trustee, for the benefit of the
Certificateholders and the Certificate Insurer, the security interest referred
to in Section 2.10 hereof. The Mortgage has been duly assigned and the Mortgage
Note has been duly endorsed. The assignment of Mortgage delivered to the Trustee
pursuant to Section 2.05(a)(iv) is in recordable form and is acceptable for
recording under the laws of the applicable jurisdiction. The endorsement of the
Mortgage Note, the delivery to the Trustee of the endorsed Mortgage Note, and
such assignment of Mortgage, and the delivery of such assignment of Mortgage for
recording to, and the due recording of such assignment of Mortgage in, the
appropriate public recording office in the jurisdiction in which the Mortgaged
Property is located are sufficient to permit the Trustee to avail itself of all
protection available under applicable law against the claims of any present or
future creditors of the Depositor, and are sufficient to prevent any other sale,
transfer, assignment, pledge, or hypothecation of the Mortgage Note and Mortgage
by the Depositor from being enforceable.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 3.01 shall survive the
delivery of the respective Mortgage Files to the Trustee or to a custodian, as
the case may be, and inure to the benefit of the Trustee and the Certificate
Insurer.
Section 3.02 Representations, Warranties and Covenants of the
Depositor. The Depositor hereby represents, warrants and covenants to the
Trustee and the Certificate Insurer that as of the date of this Agreement or as
of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Depositor has the corporate power and authority to
convey the Mortgage Loans and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Depositor, all requisite corporate action having
been taken, and, assuming the due authorization, execution and delivery hereof
by the Servicer and the Trustee, constitutes or will constitute the legal, valid
and binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
38
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by the
Depositor with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or
against or investigations of, the Depositor pending, or to the knowledge of the
Depositor, threatened, before any court, administrative agency or other
tribunal, and no notice of any such action, which, in the Depositor's reasonable
judgment, might materially and adversely affect the performance by the Depositor
of its obligations under this Agreement, or the validity or enforceability of
this Agreement; and
(g) The Depositor is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder.
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee, the Depositor had good title to, and was the sole
owner of each Mortgage Loan, free of any interest of any other Person, and the
Depositor has transferred all right, title and interest in each Mortgage Loan to
the Trustee. The transfer of the Mortgage Note and the Mortgage as and in the
manner contemplated by this Agreement is sufficient either (i) fully to transfer
to the Trustee, for the benefit of the Certificateholders and the Certificate
Insurer, all right, title, and interest of the Depositor thereto as note holder
and mortgagee or (ii) to grant to the Trustee, for the benefit of the
Certificateholders and the Certificate Insurer, the security interest referred
to in Section 2.10 hereof. The Mortgage has been duly assigned and the Mortgage
Note has been duly endorsed. The assignment of Mortgage delivered to the Trustee
pursuant to Section 2.05(a)(iv) is in recordable form and is acceptable for
recording under the laws of the applicable jurisdiction. The endorsement of the
Mortgage Note, the delivery to the Trustee of the endorsed Mortgage Note, and
such assignment of Mortgage, and the delivery of such assignment of Mortgage for
recording to, and the due recording of such assignment of Mortgage in, the
appropriate public recording office in the jurisdiction in which the Mortgaged
Property is located are sufficient to permit the Trustee to avail itself of all
protection available under applicable law against the claims of any present or
future creditors of the Depositor, and are sufficient to prevent any other sale,
transfer, assignment, pledge, or hypothecation of the Mortgage Note and Mortgage
by the Depositor from being enforceable.
39
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 3.02 shall survive delivery
of the respective Mortgage Files to the Trustee or to a custodian, as the case
may be, and shall inure to the benefit of the Trustee and the Certificate
Insurer.
Section 3.03 Purchase and Substitution. (a) It is understood
and agreed that the representations and warranties set forth in Sections 3.01,
3.02 and 3.03 of the Unaffiliated Seller's Agreement shall survive delivery of
the Certificates to the Certificateholders. Pursuant to the Unaffiliated
Seller's Agreement, with respect to any representation or warranty contained in
Sections 3.01, 3.02 or 3.03 of the Unaffiliated Seller's Agreement that is made
to the best of the Unaffiliated Seller's knowledge, the Unaffiliated Seller
shall be deemed to have knowledge of all facts and circumstances in existence as
of such date and, if it is discovered by the Servicer, any Subservicer, the
Trustee, the Certificate Insurer or any Certificateholder that the substance of
such representation and warranty was inaccurate as of the Closing Date and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interests of the Trustee or the Certificate Insurer with respect
thereto, then notwithstanding the Unaffiliated Seller's lack of knowledge with
respect to the inaccuracy at the time the representation or warranty was made,
such inaccuracy shall be deemed a breach of the applicable representation or
warranty. Upon discovery by the Unaffiliated Seller, the Servicer, any
Subservicer, the Trustee or the Certificate Insurer of a breach of any of such
representations and warranties which materially and adversely affects the value
of the Mortgage Loans or the interest of the Trustee, the Certificateholders or
the Certificate Insurer, or which materially and adversely affects the interests
of the Trustee, the Certificate Insurer or the Certificateholders in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan (notwithstanding that such representation and warranty
was made to the Unaffiliated Seller's best knowledge), the party discovering
such breach shall promptly (and in any event within five (5) Business Days of
the discovery) give written notice to the others. Subject to the last paragraph
of this Section 3.03, within sixty (60) days of the earlier of its discovery or
its receipt of notice of any breach of a representation or warranty, pursuant to
the Unaffiliated Seller's Agreement, the Servicer shall, or shall cause the
Unaffiliated Seller or an Originator to (a) promptly cure such breach in all
material respects, or (b) purchase such Mortgage Loan on the next succeeding
Servicer Distribution Date, by depositing an amount equal to the Loan Repurchase
Price into the Collection Account, or (c) remove such Mortgage Loan from the
Trust Fund (in which case it shall become a Deleted Mortgage Loan) and
substitute one or more Qualified Substitute Mortgage Loans; provided, that, such
substitution is effected not later than the date which is two years after the
Startup Day or at such later date, if the Trustee and the Certificate Insurer
receive an Opinion of Counsel to the effect set forth below in this Section. In
addition, pursuant to the Unaffiliated Seller's Agreement, the Unaffiliated
Seller and the related Originator shall be obligated to indemnify the Trustee,
the Certificateholders and the Certificate Insurer for any third party claims
arising out of a breach by the Unaffiliated Seller of representations or
warranties regarding the Mortgage Loans. Pursuant to the Unaffiliated Seller's
Agreement any such substitution shall be accompanied by payment by the
Unaffiliated Seller of the Substitution Adjustment, if any, to be deposited in
the Collection Account.
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(b) As to any Deleted Mortgage Loan for which the Unaffiliated
Seller substitutes a Qualified Substitute Mortgage Loan or Loans, the Servicer
shall cause the Unaffiliated Seller or an Originator, as applicable, to effect
such substitution by delivering to the Trustee a certification in the form
attached hereto as Exhibit H, executed by a Servicing Officer and the documents
described in Sections 2.05(a)(i)-(vi) for such Qualified Substitute Mortgage
Loan or Loans.
(c) The Servicer shall deposit in the Collection Account all
payments received in connection with such Qualified Substitute Mortgage Loan or
Loans after the date of such substitution. Monthly Payments received with
respect to a Qualified Substitute Mortgage Loan or Loans on or before the date
of substitution will be retained by the Unaffiliated Seller. The Trust Fund will
own all payments received on the Deleted Mortgage Loan on or before the date of
substitution, and the Unaffiliated Seller shall thereafter be entitled to retain
all amounts subsequently received in respect of such Deleted Mortgage Loan. The
Servicer shall give written notice to the Trustee and the Certificate Insurer
that such substitution has taken place and 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. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans
shall be subject to the terms of this Agreement in all respects.
(d) It is understood and agreed that the obligations of the
Unaffiliated Seller and the related Originator set forth in Sections 2.06 and
3.05 of the Unaffiliated Seller's Agreement to and the Servicer's obligation to
cause the Unaffiliated Seller and the Originator to cure, purchase or substitute
for a defective Mortgage Loan, or to indemnify as described in clause (a) above,
constitute the sole remedies of the Trustee, the Certificate Insurer and the
Certificateholders respecting a breach of the representations and warranties of
the Unaffiliated Seller and the Originators set forth in Sections 3.01, 3.02 and
3.03 of the Unaffiliated Seller's Agreement. The Trustee shall give prompt
written notice to the Certificate Insurer and the Rating Agencies of any
repurchase or substitution made pursuant to this Section 3.03 or Section
2.06(b).
(e) Upon discovery by the Servicer, the Trustee, the
Certificate Insurer or any Certificateholder that any Mortgage Loan does not
constitute a Qualified Mortgage, the party discovering such fact shall promptly
(and in any event within five (5) Business Days of the discovery) give written
notice thereof to the other parties. In connection therewith, pursuant to the
Unaffiliated Seller's Agreement, the Unaffiliated Seller shall be required to
repurchase or substitute a Qualified Substitute Mortgage Loan for the affected
Mortgage Loan within sixty (60) days of the earlier of such discovery by any of
the foregoing parties, or the Trustee's or the Unaffiliated Seller's receipt of
notice, in the same manner as it would a Mortgage Loan for a breach of
representation or warranty contained in Sections 3.01, 3.02 or 3.03 of the
Unaffiliated Seller's Agreement. The Trustee shall reconvey to the Unaffiliated
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 contained in Sections 3.01, 3.02 or 3.03
of the Unaffiliated Seller's Agreement.
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(f) Pursuant to Section 3.05(j) of the Unaffiliated Seller's
Agreement the Unaffiliated Seller and each of the Originators shall be jointly
and severally responsible for any repurchase, cure or substitution obligation of
the Unaffiliated Seller or any of the Originators under this Agreement or the
Unaffiliated Seller's Agreement.
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates. The Class A-1, Class A-IO,
Class X and Class R Certificates shall be substantially in the forms annexed
hereto as Exhibits A, B C and D respectively. All Certificates shall be executed
by manual or facsimile signature on behalf of the Trustee by an authorized
officer and authenticated by the manual or facsimile signature of an authorized
officer. Certificates bearing the signatures of individuals who were at the time
of the execution of the Certificates the authorized officers of the Trustee
shall bind the Trustee, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the delivery of such Certificates or
did not hold such offices at the date of such Certificates. All Certificates
issued hereunder shall be dated the date of their authentication.
Section 4.02 Registration of Transfer and Exchange of
Certificates. (a) The Trustee, as registrar, shall cause to be kept a register
(the "Certificate Register") in which, subject to such reasonable regulations as
it may prescribe, the Trustee shall provide for the registration of Certificates
and the registration of transfer of Certificates. The Trustee is hereby
appointed registrar for the purpose of registering Certificates and transfers of
Certificates as herein provided. The Certificate Insurer shall be entitled to
inspect and copy the Certificate Register and the records of the Trustee
relating to the Certificates during normal business hours upon reasonable
notice.
(b) All Certificates issued upon any registration of transfer
or exchange of Certificates shall be valid evidence of the same ownership
interests in the Trust and entitled to the same benefits under this Agreement as
the Certificates surrendered upon such registration of transfer or exchange.
(c) Every Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made to a Holder for any
registration of transfer or exchange of Certificates, but the Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates; any other expenses in connection with such transfer or
exchange shall be an expense of the Trust.
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(e) It is intended that the Class A-1 Certificates and the
Class A-IO Certificates be registered so as to participate in a global
book-entry system with the Depository, as set forth herein. The Class A-1
Certificates and the Class A-IO Certificates shall, except as otherwise provided
in the next paragraph, be initially issued in the form of a single fully
registered Certificate with a denomination equal to the Original Certificate
Principal Balance or Class A-IO Notional Amount, respectively. Upon initial
issuance, the ownership of each such Class A-1 Certificate and Class A-IO
Certificate shall be registered in the Certificate Register in the name of Cede
& Co., or any successor thereto, as nominee for the Depository. The Depositor
and the Trustee are hereby authorized to execute and deliver the Representation
Letter with the Depository. With respect to Class A-1 Certificates and Class
A-IO Certificates registered in the Certificate Register in the name of Cede &
Co., as nominee of the Depository, the Depositor, the Unaffiliated Seller, the
Servicer, the Trustee and the Certificate Insurer shall have no responsibility
or obligation to Direct or Indirect Participants or beneficial owners for which
the Depository holds Class A-1 Certificates and Class A-IO Certificates from
time to time as a Depository. Without limiting the immediately preceding
sentence, the Depositor, the Unaffiliated Seller, the Servicer, the Trustee and
the Certificate Insurer shall have no responsibility or obligation with respect
to (i) the accuracy of the records of the Depository, Cede & Co., or any Direct
or Indirect Participant with respect to any Ownership Interest, (ii) the
delivery to any Direct or Indirect Participant or any other Person, other than a
Certificateholder, of any notice with respect to the Class A-1 Certificates and
Class A-IO Certificates or (iii) the payment to any Direct or Indirect
Participant or any other Person, other than a Certificateholder, of any amount
with respect to any distribution of principal or interest on the Class A-1
Certificates or Class A-IO Certificates. No Person other than a
Certificateholder shall receive a certificate evidencing such Class A-1
Certificates or Class A-IO Certificate. Upon delivery by the Depository to the
Trustee of written notice to the effect that the Depository has determined to
substitute a new nominee in place of Cede & Co., and subject to the provisions
hereof with respect to the payment of interest by the mailing of checks or
drafts to the Certificateholders appearing as Certificateholders at the close of
business on a Record Date, the name "Cede & Co." in this Agreement shall refer
to such new nominee of the Depository.
(f) In the event that (i) the Depository or the Servicer
advises the Trustee in writing that the Depository is no longer willing or able
to discharge properly its responsibilities as nominee and depository with
respect to the Class A-1 Certificates or Class A-IO Certificates and the
Servicer or the Depository is unable to locate a qualified successor or (ii) the
Trustee at its sole option elects to terminate the book-entry system through the
Depository, the Class A-1 Certificates and Class A-IO Certificates shall no
longer be restricted to being registered in the Certificate Register in the name
of Cede & Co. (or a successor nominee) as nominee of the Depository. At that
time, the Servicer may determine that the Class A-1 Certificates and Class A-IO
Certificates shall be registered in the name of and deposited with a successor
depository operating a global book-entry system, as may be acceptable to the
Servicer, or such depository's agent or designee but, if the Servicer does not
select such alternative global book-entry system, then the Class A-1
Certificates and Class A-IO Certificates may be registered in whatever name or
names Certificateholders transferring Class A-1 Certificates and Class A-IO
Certificates shall designate, in accordance with the provisions hereof;
provided, however, that any such reregistration shall be at the expense of the
Servicer.
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(g) Notwithstanding any other provision of this Agreement to
the contrary, so long as any Class A-1 Certificate or Class A-IO Certificate is
registered in the name of Cede & Co., as nominee of the Depository, all
distributions of principal or interest on such Class A-1 Certificates or Class
A-IO Certificates as the case may be and all notices with respect to such Class
A-1 Certificates or Class A-IO Certificates as the case may be shall be made and
given, respectively, in the manner provided in the Representation Letter.
(h) No transfer, sale, pledge or other disposition of any
Class R or Class X Certificate shall be made unless such disposition is made
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act") and effective registration or qualification
under applicable state securities laws or "Blue Sky" laws, or is made in a
transaction that does not require such registration or qualification. In the
event that a transfer of a Certificate is to be made in reliance upon an
exemption from the 1933 Act, the Trustee or the Certificate Registrar shall
require, in order to assure compliance with the 1933 Act, that the
Certificateholder desiring to effect such disposition and such
Certificateholder's prospective transferee each certify to the Trustee or the
Certificate Registrar in writing the facts surrounding such disposition
substantially in the form of Exhibit K hereto (with respect to a transfer made
pursuant to Rule 144A promulgated under the ▇▇▇▇ ▇▇▇) and may, unless such
transfer occurs more than three years after the Closing Date or is made pursuant
to Rule 144A promulgated under the 1933 Act, require an Opinion of Counsel
satisfactory to the Trustee or Certificate Registrar as the case may be, that
such transfer may be made pursuant to an exemption from the 1933 Act, which
Opinion of Counsel shall be at the expense of the Certificateholder. None of the
Servicer, the Depositor, the Unaffiliated Seller or the Trustee is obligated
under this Agreement to register Certificates under the 1933 Act, as amended or
any other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of the Class R or Class X Certificates without
such registration or qualification. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer substantially in the form of Exhibit L hereto, or such
other endorsement or written instrument of transfer as is satisfactory to the
Trustee, duly executed by the Holder thereof or his attorney duly authorized in
writing, together with wiring instructions, if applicable, in the form of
Exhibit P.
(i) Any such Certificateholder desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor,
the Unaffiliated Seller, the Servicer and the Certificate Insurer against any
liability that may result if the transfer is not exempt or is not made in
accordance with such applicable federal and state laws. Promptly after receipt
by an indemnified party under this paragraph of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this paragraph, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this paragraph. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to appoint counsel reasonably satisfactory to such indemnified party to
represent the indemnified party in such action; provided, however, that if the
defendants in any such action include both the indemnified party and the
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indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this paragraph for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso of the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel for any indemnified party),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party. Under no circumstances shall the indemnified party enter
into a settlement agreement with respect to any lawsuit, claim or other
proceeding without the prior written consent of the indemnifying party.
(j) Subject to the restrictions set forth in this Agreement,
upon surrender for registration of transfer of any Certificate at the office or
agency of the Trustee located in New York, New York, the Trustee shall execute,
authenticate and deliver in the name of the designated transferee or
transferees, a new Certificate of the same Class and Percentage Interest and
dated the date of authentication by the Trustee. At the option of the
Certificateholders, Certificates may be exchanged for other Certificates of
Authorized Denominations of a like aggregate Percentage Interest, upon surrender
of the Certificates to be exchanged at such office. Whenever any Certificates
are so surrendered for exchange, the Trustee shall execute, authenticate and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. No service charge shall be made for any transfer or
exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates. All Certificates
surrendered for transfer and exchange shall be cancelled and destroyed by the
Trustee in accordance with the Trustee's standard procedures.
(k) No transfer of a Class A-1 Certificate or Class A-IO
Certificate shall be made to the Unaffiliated Seller or, to the actual knowledge
of a Responsible Officer of the Trustee, to any of the Unaffiliated Seller's
Affiliates, successors or assigns.
(l) Each Person who has or who acquires any Ownership Interest
in a Class 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 Servicer or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause
(viii) 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 a Class R Certificate are expressly subject
to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Class R Certificate shall be a Permitted Transferee and a United
States Person and shall promptly notify the Trustee of any change or
impending change in its status as either a United States Person or a
Permitted Transferee.
(ii) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Trustee shall require delivery
to it of, and shall not register the Transfer of any Class R
Certificate until its receipt of, an affidavit and agreement (a
"Transfer Affidavit and Agreement") attached hereto as Exhibit I from
the proposed Transferee, in form and substance satisfactory to the
Trustee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Class R Certificate that is the subject of
the proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that as long as it retains its
Ownership Interest in a Class R Certificate, it will endeavor to remain
a Permitted Transferee, and that it has reviewed the provisions of this
Section 4.02(j) and agrees to be bound by them.
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(iii) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (ii) above, if a
Responsible Officer of the Trustee has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee
shall be effected.
(iv) Each Person holding or acquiring any Ownership Interest
in a Class R Certificate shall agree (x) to require a Transfer
Affidavit and Agreement from any other Person to whom such Person
attempts to transfer its Ownership Interest in a Class R Certificate
and (y) not to transfer its Ownership Interest unless it provides a
certificate (attached hereto as Exhibit J) to the Trustee stating that,
among other things, it has no actual knowledge that such other Person
is not a Permitted Transferee.
(v) Each Person holding or acquiring an Ownership Interest in
a Class R Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R Certificate, if it is, or is holding an
Ownership Interest in a Class R Certificate on behalf of, a
"pass-through interest holder".
(vi) The Trustee will register the Transfer of any Class R
Certificate only if it shall have received the Transfer Affidavit and
Agreement and all of such other documents as shall have been reasonably
required by the Trustee as a condition to such registration. In
addition, no Transfer of a Class R Certificate shall be made unless the
Trustee shall have received a representation letter from the Transferee
of such Certificate to the effect that such Transferee is a United
States Person and is not a "disqualified organization" (as defined in
Section 860E(e)(5) of the Code).
(vii) Any attempted or purported transfer of any Ownership
Interest in a Class R Certificate in violation of the provisions of
this Section 4.02 shall be absolutely null and void and shall vest no
rights in the purported transferee. If any purported transferee shall
become a Holder of a Class R Certificate in violation of the provisions
of this Section 4.02, then the last preceding Permitted Transferee
shall be restored to all rights as Holder thereof retroactive to the
date of registration of transfer of such Class R Certificate. The
Trustee shall notify the Servicer upon receipt of written notice or
discovery by a Responsible Officer that the registration of transfer of
a Class R Certificate was not in fact permitted by this Section 4.02.
Knowledge shall not be imputed to the Trustee with respect to an
impermissible transfer in the absence of such a written notice or
discovery by a Responsible Officer. The Trustee shall be under no
liability to any Person for any registration of transfer of a Class R
Certificate that is in fact not permitted by this Section 4.02 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
after receipt of the related Transfer Affidavit and Agreement. The
Trustee shall be entitled, but not obligated to, recover from any
Holder of a Class R Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time
as it became other than a Permitted Transferee, all payments made on
such Class R Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Holder of such Certificate.
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(viii) If any purported transferee shall become a Holder of a
Class R Certificate in violation of the restrictions in this Section
4.02, then the Servicer or its designee shall have the right, without
notice to the Holder or any prior Holder of such Class R Certificate,
to sell such Class R Certificate to a purchaser selected by the
Servicer or its designee on such reasonable terms as the Servicer or
its designee may choose. Such purchaser may be the Servicer itself or
any Affiliate of the Servicer. The proceeds of such sale, net of
commissions, expenses and taxes due, if any, will be remitted by the
Servicer to the last preceding purported transferee of such Class R
Certificate, except that in the event that the Servicer determines that
the Holder or any prior Holder of such Class R Certificate may be
liable for any amount due under this Section 4.02 or any other
provision of this Agreement, the Servicer may withhold a corresponding
amount from such remittance as security for such claim. The terms and
conditions of any sale under this clause (viii) shall be determined in
the sole discretion of the Servicer or its designee, and it shall not
be liable to any Person having an Ownership Interest in a Class R
Certificate as a result of its exercise of such discretion.
(m) The provisions of Section 4.02(j) may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
and the Certificate Insurer an Opinion of Counsel to the effect that such
modification of, addition to or elimination of such provisions will not cause
the REMIC Trust to cease to qualify as a REMIC and will not cause (x) the REMIC
Trust to be subject to an entity-level tax caused by the Transfer of any
Ownership Interest in a Class R Certificate to a Person that is not a Permitted
Transferee or (y) a Person other than the prospective transferee to be subject
to a REMIC-related tax caused by the Transfer of an Ownership Interest in a
Class R Certificate to a Person that is not a Permitted Transferee.
(n) The Trustee and the Servicer shall require the prospective
transferee of any Class R or Class X Certificate to certify (in the form of
Exhibit K hereto) that it is not a pension or benefit plan or individual
retirement arrangement that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or to Section 4975 of the Code (a
"Plan") or an entity whose underlying assets are deemed to be assets of a Plan
by reason of such plan's or arrangement's investment in the entity, as
determined under U.S. Department of Labor Regulations 29 C.F.R. ss. 2510.3-101
or otherwise.
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Section 4.03 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate, and (b) there is delivered to the Servicer, the
Certificate Insurer and the Trustee such security or indemnity as may reasonably
be required by each of them to save each of them harmless, then, in the absence
of notice to the Servicer and the Trustee that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall execute, 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, but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section 4.03, the Servicer and the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and their fees and expenses connected
therewith. Any duplicate Certificate issued pursuant to this Section 4.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, as
if originally issued, whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time.
Section 4.04 Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer and subject to the provisions of
Section 4.02 and Article X, the Servicer, the Depositor, the Unaffiliated
Seller, the Certificate Insurer and the Trustee may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving remittances pursuant to Section 6.05 and for all other
purposes whatsoever, and the Servicer, the Depositor, the Unaffiliated Seller,
the Certificate Insurer and the Trustee shall not be affected by notice to the
contrary.
ARTICLE V
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 5.01 REMIC Matters; The Servicer. (a) The parties
intend that the Trust Fund formed hereunder shall, constitute, and that the
affairs of the Trust Fund shall be conducted and this Agreement shall be
construed so as to qualify the Trust Fund as, three separate "real estate
mortgage investment conduits" as defined in and in accordance with the REMIC
Provisions. In furtherance of such intention, the Trustee covenants and agrees
that it shall, to the extent permitted by applicable law, act as agent (and the
Trustee is hereby appointed to act as agent) on behalf of the Trust Fund and
that in such capacity it shall: (a) prepare and file, or cause to be prepared
and filed, all required federal, state and local tax returns for each REMIC
using a calendar year as the taxable year for the Trust Fund when and as
required by the REMIC Provisions and other applicable federal, state and local
income tax laws; (b) maintain or cause the maintenance of the books of each
REMIC on the accrual method of accounting; (c) make elections, on behalf of each
REMIC, to be treated as a REMIC on the federal tax return of the Trust Fund for
its first taxable year, in accordance with the REMIC Provisions; (d) prepare and
forward, or cause to be prepared and forwarded, to the Certificateholders all
information reports as and when required to be provided to them in accordance
with the REMIC Provisions; (e) conduct the affairs of each REMIC at all times
that any Certificates are outstanding so as to maintain the status thereof as a
REMIC under the REMIC Provisions; and (f) not knowingly or intentionally take
any action or omit to take any action that would cause the termination of the
REMIC status of any REMIC created hereunder.
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(b) In the event that any income tax (including any tax with
regard to "prohibited transactions" of any REMIC created hereunder as defined in
Section 860F of the Code) is imposed on the Trust Fund, such tax shall be
charged against amounts otherwise distributable to the Holders of the Class R or
Class X Certificates on a pro rata basis to the extent hereinafter provided. In
the event that any such tax shall be due and owing at a time when amounts
otherwise distributable to the Holders of the Class R Certificates are not
available, the Trustee shall pay such tax from its own funds. In such event, the
Trustee is hereby authorized to retain from amounts otherwise distributable to
the Holders of the Class R and Class X Certificates on any Distribution Date
sufficient funds to reimburse the Trustee for the payment of such tax (to the
extent that the Trustee has not been previously reimbursed or indemnified
therefor) (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall prevent the Trustee from withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings).
(c) The Servicer shall service and administer the Mortgage
Loans in accordance with the Accepted Servicing Practices and shall have full
power and authority to do any and all things not inconsistent therewith in
connection with such servicing and administration which it may deem necessary or
desirable in order to maximize collections on the Mortgage Loans, subject to the
limitations set forth in this Agreement. The Trustee shall furnish the Servicer
with any powers of attorney and other documents necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties
hereunder. Without limiting the generality of the foregoing, the Servicer shall
continue, and is hereby authorized and empowered by the Trustee, to execute and
deliver, on behalf of itself, the Certificateholders and the Trustee or any of
them, any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge and all other comparable instruments, and to effect
such modifications, waivers, indulgences and other like matters as are in its
judgment necessary or desirable, with respect to the Mortgage Loans and the
Mortgaged Properties and the servicing and administration thereof in order to
maximize collections on the Mortgage Loans. The Servicer shall notify the
Trustee of any such waiver, release, discharge, modification, indulgence or
other such matter by delivering to the Trustee an Officer's Certificate
certifying that such agreement is in compliance with this Section 5.01(b)
together with the original copy of any written agreement or other document
executed in connection therewith, all of which written agreements or documents
shall, for all purposes, be considered a part of the related Mortgage File to
the same extent as all other documents and instruments constituting a part
thereof. Notwithstanding anything in this Agreement to the contrary, the
Servicer shall not permit any modification with respect to any Mortgage Loan
that would change the Mortgage Interest Rate, reduce or increase the principal
balance, change the lien priority, the original LTV or change the final maturity
date on or of such Mortgage Loan unless (i) the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, imminent and (ii) the Certificate Insurer consents to such
modifications in writing; provided, however, that the Servicer shall be
permitted to extend the final maturity date on a Mortgage Loan by 180 days or
less without the consent of the Certificate Insurer, so long as such final
maturity date (as so extended) is not later than the Class A-1 Final Scheduled
Maturity Date.
49
(d) The relationship of the Servicer (and of any successor to
the Servicer as servicer under this Agreement) to the Trustee under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or agent.
Section 5.02 Collection of Certain Mortgage Loan Payments;
Collection Account. (a) The Servicer shall make its reasonable efforts to
collect all payments called for under the terms and provisions of the Mortgage
Loans, and shall, to the extent such procedures shall be consistent with this
Agreement, follow the Accepted Servicing Practices. Consistent with the
foregoing, the Servicer may in its discretion waive any assumption fees or other
fees which may be collected in the ordinary course of servicing such Mortgage
Loans.
(b) The Servicer shall establish and maintain in the name of
the Trustee the Collection Account, in trust for the benefit of the
Certificateholders and the Certificate Insurer. The Collection Account shall be
established and maintained as an Eligible Account.
(c) The Servicer shall deposit in the Collection Account any
amounts representing Monthly Payments on the Mortgage Loans due or to be applied
as of a date after the Cut-Off Date, and thereafter, on each Business Day
(except as otherwise permitted herein), the following payments and collections
received or made by it (other than in respect of principal collected and
interest due on the Mortgage Loans on or before the Cut-Off Date):
(i) Payments of interest on the Mortgage Loans;
(ii) Payments of principal of the Mortgage Loans;
(iii) The Loan Repurchase Price of Mortgage Loans repurchased
pursuant to Sections 2.06, 3.03, 5.05, 5.15 or otherwise hereunder;
(iv) The Substitution Adjustment received in connection with
Mortgage Loans for which Qualified Substitute Mortgage Loans are
received pursuant to Sections 2.06 and 3.03;
(v) All Liquidation Proceeds; and
(vi) All Insurance Proceeds (including, for this purpose, any
amounts required to be deposited by the Servicer pursuant to the last
sentence of Section 5.04).
It is understood that the Servicer need not deposit amounts
representing fees, prepayment premiums, late payment charges or extension or
other administrative charges payable by Mortgagors, or amounts received by the
Servicer for the account of Mortgagors for application towards the payment of
taxes, insurance premiums, assessments and similar items.
(d) The Trustee shall invest any funds in the Collection
Account in Permitted Investments as directed by the Servicer, which shall mature
not later than the Business Day next preceding the Servicer Distribution Date
next following the date of such investment (except that any investment held by
the Trustee may mature on such Servicer Distribution Date) and shall not be sold
or disposed of prior to its maturity. All net income and gain realized from any
such investment shall be for the benefit of the Servicer and shall be subject to
its withdrawal or order on a Distribution Date. The Servicer shall deposit from
its own funds the amount of any loss, to the extent not offset by investment
income or earnings, in the Collection Account upon the realization of such loss.
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Section 5.03 Permitted Withdrawals from the Collection
Account. The Trustee shall make withdrawals from the Collection Account, on any
Distribution Date, for the following purposes:
(a) to reimburse the Servicer for Liquidation Expenses
theretofore incurred in respect of any Mortgage Loan in an amount not to exceed
the amount of the sum of the related Insurance Proceeds and Liquidation Proceeds
deposited in the Collection Account pursuant to Section 5.02(c)(v)-(vi);
(b) to reimburse the Servicer for amounts expended by it
pursuant to Section 5.04 in good faith in connection with the restoration of
damaged property, in an amount not to exceed the amount of the related Insurance
Proceeds and Liquidation Proceeds (net of withdrawals pursuant to clause (a)
above) and amounts representing proceeds of other insurance policies covering
the property subject to the related Mortgage deposited in the Collection Account
pursuant to Section 5.02(c)(v)-(vi);
(c) to pay to the Unaffiliated Seller amounts received in
respect of any Deleted Mortgage Loan purchased or substituted for by the
Unaffiliated Seller to the extent that the distribution to the
Certificateholders of any such amounts on the Distribution Date upon which the
proceeds of such purchase are distributed to the Certificateholders would make
the total amount distributed in respect of any such Mortgage Loan on such
Distribution Date greater than the Loan Repurchase Price or the Substitution
Adjustment therefor;
(d) to reimburse the Servicer for unreimbursed Servicing
Advances, without interest, with respect to the Mortgage Loans for which it has
made a Servicing Advance, from subsequent collections with respect to interest
on such Mortgage Loans and from Liquidation Proceeds, Insurance Proceeds and/or
the Loan Repurchase Price or Substitution Adjustment of or relating to such
Mortgage Loans;
(e) to reimburse the Servicer for any Periodic Advances, such
reimbursement to be made from any collections in respect of the related Mortgage
Loan with respect to which such Periodic Advance was made;
(f) to withdraw any amount received from a Mortgagor that is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code in accordance with a
final, nonappealable order of a court having competent jurisdiction;
(g) to withdraw any funds deposited in the Collection Account
that were not required to be deposited therein; and
(h) to pay the Servicer Servicing Compensation pursuant to
Section 5.08 hereof to the extent not retained or paid.
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The Servicer shall keep and maintain a separate accounting for
each Mortgage Loan for the purpose of accounting for withdrawals from the
Collection Account pursuant to subclause (a).
Section 5.04 Hazard Insurance Policies; Property Protection
Expenses. (a) The Servicer shall cause to be maintained for each Mortgage Loan a
hazard insurance policy with extended coverage which contains a standard
mortgagee's clause with an appropriate endorsement in an amount equal to the
lesser of (a) the maximum insurable value of the related Mortgaged Property or
(b) the sum of the Principal Balance of such Mortgage Loan plus the outstanding
balance of any mortgage loan senior to such Mortgage Loan, but in no event shall
such amount be less than is necessary to prevent the Mortgagor from becoming a
coinsurer thereunder. The Servicer shall also maintain on property acquired upon
foreclosure, or by deed in lieu of foreclosure, hazard insurance with extended
coverage in an amount which is at least equal to the lesser of (i) the maximum
insurable value from time to time of the improvements which are a part of such
property or (ii) the combined Principal Balance of such Mortgage Loan and the
principal balance of any mortgage loan senior to such Mortgage Loan at the time
of such foreclosure plus accrued interest and the good-faith estimate of the
Servicer of related Liquidation Expenses to be incurred in connection therewith.
Amounts collected by the Servicer under any such policies shall be deposited in
the Collection Account to the extent that they constitute Liquidation Proceeds
or Insurance Proceeds. Each hazard insurance policy shall contain a standard
mortgage clause naming the Originator, its successors and assigns, as mortgagee.
The Servicer shall be under no obligation to require that any Mortgagor maintain
earthquake or flood or other additional insurance and shall be under no
obligation itself to maintain any such additional insurance on property acquired
in respect of a Mortgage Loan, other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance.
(b) If the Servicer shall obtain and maintain a blanket policy
issued by an insurer acceptable to the Rating Agencies and the Certificate
Insurer insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in Section
5.04(a), it being understood and agreed that such policy may contain a
deductible clause, in which case the Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property a policy
complying with Section 5.04(a), and there shall have been a loss which would
have been covered by such policy, deposit in the Collection Account the amount
not otherwise payable under the blanket policy because of such deductible
clause.
(c) If the Mortgaged Property or REO Property is located at
the time of origination of the Mortgage Loan in a federally designated special
flood hazard area (and if the flood insurance policy referenced herein has been
made available), the Servicer will cause to be maintained flood insurance in
respect thereof. Such flood insurance shall be in an amount equal to the lesser
of (i) the Principal Balance of the related Mortgage Loan and the balance of the
related first lien, if any, (ii) the maximum insurable value of the related
Mortgaged Property, and (iii) 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).
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Section 5.05 Assumption and Modification Agreements. In any
case in which a Mortgaged Property has been or is about to be conveyed by the
Mortgagor, the Servicer shall exercise its right to accelerate the maturity of
the related Mortgage Loan and require that the Principal Balance thereof be paid
in full on or prior to such conveyance by the Mortgagor under any "due-on-sale"
clause applicable thereto. If such "due-on-sale" clause, by its terms, is not
operable or the Servicer is prevented, as provided in the last paragraph of this
Section 5.05, from enforcing any such clause, the Servicer is authorized,
subject to the consent of the Certificate Insurer, to take or enter into an
assumption and modification agreement from or with the Person to whom such
property has been or is about to be conveyed, pursuant to which such Person
becomes liable under the Mortgage Note and the Mortgagor remains liable thereon
or, if the Servicer in its reasonable judgment finds it appropriate, is released
from liability thereon. The Servicer shall notify the Trustee that any
assumption and modification agreement has been completed by delivering to the
Trustee and the Certificate Insurer an Officer's Certificate certifying that
such agreement is in compliance with this Section 5.05 together with the
original copy of such assumption and modification agreement. Any such assumption
and modification agreement shall, for all purposes, be considered a part of the
related Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. In connection with any such agreement, the then
current Mortgage Interest Rate thereon shall not be increased or decreased. Any
fee collected by the Servicer for entering into any such agreement will be
retained by the Servicer as additional servicing compensation. At its sole
election, the Servicer may purchase from the Trust Fund any Mortgage Loan that
has been assumed in accordance with this Section 5.05 within one month after the
date of such assumption at a price equal to the greater of (i) the fair market
value of such Mortgage Loan (as determined by the Servicer in its good faith
judgment) and (ii) the Loan Repurchase Price. Such amount, if any, shall be
deposited into the Collection Account in the Due Period in which such repurchase
is made.
Notwithstanding the foregoing paragraph of this Section 5.05
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, or transfer of any Mortgaged Property
without the assumption thereof, by operation of law or any assumption or
transfer which the Servicer reasonably believes it may be restricted by law from
preventing for any reason whatsoever.
Section 5.06 Realization Upon Defaulted Mortgage Loans. (a)
The Servicer shall foreclose upon or otherwise comparably convert to ownership
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Section 5.02(a). Prior to
conducting any sale in a foreclosure proceeding or accepting a deed-in-lieu of
foreclosure with respect to any Mortgaged Property, the Servicer shall cause an
environmental review to be performed, in accordance with Accepted Servicing
Practices on the Mortgaged Property by a company such as Equifax, Inc. or
Toxicheck. If such review reveals that the Mortgaged Property has on it, under
it or is near hazardous or toxic material or waste or reveals any other
environmental problem, the Servicer shall not foreclose or accept a deed-in-lieu
of foreclosure without the prior written consent of the Certificate Insurer,
such consent not to be unreasonably withheld, conditioned or delayed. In
connection with such foreclosure or other conversion, the Servicer shall follow
such practices (including, in the case of any default on a related senior
mortgage loan, the advancing of funds to correct such default) and procedures
which are consistent with Accepted Servicing Practices as it shall deem
necessary or advisable and as shall be normal and usual in its general first and
second mortgage loan servicing activities. The foregoing is subject to the
proviso that the Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the correction of any default on a
related senior mortgage loan or restoration of any property unless, in the
reasonable judgment of the Servicer, such expenses will be recoverable from
Liquidation Proceeds.
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(b) In the event that title to any Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee on behalf
of Certificateholders. In the event that the Trust Fund acquires any Mortgaged
Property as aforesaid or otherwise in connection with a default or imminent
default on a Mortgage Loan, the Trust Fund shall: (i) dispose of such Mortgaged
Property prior to the end of the third taxable year after its acquisition by the
Trust Fund or (ii) request more than 60 days prior to the date on which such 3
year period would otherwise expire, an extension of the 3 year period, or (iii)
unless the Servicer shall have furnished the Trustee with an Opinion of Counsel
to the effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to the third taxable year after its acquisition will not result in
the imposition of taxes on "prohibited transactions" of the Trust Fund as
defined in Section 860F of the Code or cause the Trust Fund to fail to qualify
as a REMIC at any time that any Certificates are outstanding.
(c) Any Insurance Proceeds or Liquidation Proceeds received
with respect to a Mortgage Loan or REO Property (other than received in
connection with a purchase by the Class R Certificateholders of all the Mortgage
Loans and REO Properties in the Trust Estate pursuant to Section 8.01(b)) will
be applied in the following order of priority, in each case to the extent of
available funds: first, to pay the Servicer any accrued and unpaid Servicing
Fees relating to such Mortgage Loan; second, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances, and any related
unreimbursed Periodic Advances theretofore funded by the Servicer or any
Subservicer from its own funds, in each case, with respect to the related
Mortgage Loan; third, to accrued and unpaid interest on the Mortgage Loan, at
the Mortgage Loan Rate (or at such lesser rate as may be in effect for such
Mortgage Loan pursuant to application of the Civil Relief Act) on the Principal
Balance of such Mortgage Loan, to the date such Mortgage Loan is determined to
be a Liquidated Mortgage Loan if it is a Liquidated Mortgage Loan, or to the Due
Date in the Due Period prior to the Distribution Date on which such amounts are
to be distributed if such determination has not yet been made, minus any unpaid
Servicing Fees with respect to such Mortgage Loan; fourth, to the extent of the
Principal Balance of the Mortgage Loan outstanding immediately prior to the
receipt of such proceeds, as a recovery of principal of the related Mortgage
Loan; and fifth, to any prepayment or late payment charges or penalty interest
payable in connection with the receipt of such proceeds and to all other fees
and charges due and payable with respect to such Mortgage Loan. The amount of
any gross Insurance Proceeds and Liquidation Proceeds received with respect to
any Mortgage Loan or REO Property minus the amount of any unreimbursed Servicing
Advances, unreimbursed Periodic Advances or unpaid Servicing Fees, in each case,
with respect to the related Mortgage Loan, are the "Net Recovery Proceeds" with
respect to such Mortgage Loan or REO Property.
54
Section 5.07 Trustee to Cooperate. Upon the payment in full of
the Principal Balance of any Mortgage Loan, the Servicer will notify the Trustee
by a certification (which certification shall include a statement to the effect
that all amounts received in connection with such payment which are required to
be deposited in the Collection Account pursuant to Section 5.02 have been so
deposited) of a Servicing Officer. Upon any such payment in full, the Servicer
is authorized to execute, pursuant to the authorization contained in Section
5.01, an instrument of satisfaction regarding the related Mortgage, which
instrument of satisfaction shall be recorded by the Servicer if required by
applicable law and be delivered to the Person entitled thereto, it being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction shall be reimbursed from the Collection Account. From
time to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, the Trustee shall, upon request of the Servicer and delivery to the
Trustee of a trust receipt signed by a Servicing Officer, release the related
Mortgage File to the Servicer and shall execute such documents as shall be
necessary for the prosecution of any such proceedings. Such trust receipt shall
obligate the Servicer to return the Mortgage File to the Trustee when the need
therefor by the Servicer no longer exists unless the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certificate of a Servicing Officer
similar to that hereinabove specified, the trust receipt shall be released by
the Trustee to the Servicer.
Section 5.08 Servicing Compensation; Payment of Certain
Expenses by Servicer. On each Distribution Date, the Servicer shall be entitled
to receive and the Trustee shall pay, out of collections on the Mortgage Loans
for the Due Period, as servicing compensation for such Due Period, an amount
(the "Monthly Servicing Fee") equal to the product of one-twelfth of the
servicing fee rate and the Pool Principal Balance as of the beginning of such
Due Period. Additional servicing compensation in the form of assumption fees,
late payment charges or extension and other administrative charges shall be
retained by the Servicer. The Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder (including payment of
all fees and expenses of the Subservicer and payment of the Trustee Fee to the
extent that monies in the Collection Account are insufficient therefor, as
provided in Section 9.05 hereof, and all other fees and expenses not expressly
stated hereunder to be payable by or from another source) and shall not be
entitled to reimbursement therefor except as specifically provided herein.
Section 5.09 Annual Statement as to Compliance. (a) The
Servicer will deliver to the Trustee, the Rating Agencies, the Certificate
Insurer and each Certificateholder, on or before April 30 of each year,
beginning April 30, 2002, an Officer's Certificate of the Servicer stating that
(a) a review of the activities of the Servicer during the preceding calendar
year and of its performance under this Agreement has been made under such
Officer's supervision and (b) to the best of such officer's knowledge, based on
such review, the Servicer has fulfilled all its material 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.
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Section 5.10 Annual Independent Public Accountants' Servicing
Report. On or before April 30 of each year, beginning April 30, 2002, the
Servicer at its expense shall cause a firm of independent public accountants
that is a member of the American Institute of Certified Public Accountants (who
may also render other services to the Servicer) to furnish a report to the
Trustee, the Rating Agencies, the Certificate Insurer and each Certificateholder
to the effect that such firm has examined certain documents and records relating
to the servicing of mortgage loans under pooling and servicing agreements
(including this Agreement) substantially similar to this Agreement, and that
such examination, which has been conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers (to the extent that the
procedures in such audit guide are applicable to the servicing obligations set
forth in such agreements), has disclosed no items of noncompliance with the
provisions of this Agreement which, in the opinion of such firm, are material,
except for such items of noncompliance as shall be set forth in such report.
Section 5.11 Access to Certain Documentation. Each of the
Servicer, the Depositor and the Unaffiliated Seller shall permit the designated
agents or representatives of each Certificateholder, the Certificate Insurer and
the Trustee (i) to examine and make copies of and abstracts from all books,
records and documents (including computer tapes and disks) in the possession or
under the control of the Servicer, the Depositor or the Unaffiliated Seller
relating to the Mortgage Loans and (ii) to visit the offices and properties of
the Servicer and of the Unaffiliated Seller for the purpose of examining such
materials and to discuss matters relating to the Mortgage Loans and the
Servicer's, the Depositor's and the Unaffiliated Seller's performance under this
Agreement with any of the officers or employees of the Servicer, the Depositor
and the Unaffiliated Seller having knowledge thereof and with the independent
public accountants of the Servicer (and by this provision the Servicer and the
Unaffiliated Seller each authorize their respective accountants to discuss their
respective finances and affairs), all at such reasonable times, as often as may
be reasonably requested and without charge to such Certificateholder, the
Certificate Insurer or the Trustee.
Section 5.12 Maintenance of Fidelity Bond. The Servicer shall
during the term of its service as servicer maintain in force a fidelity bond and
errors and omissions insurance in respect of its officers, employees or agents.
Such bond and insurance shall comply with the requirements from time to time of
the FNMA for Persons performing servicing for mortgage loans purchased by such
association.
Section 5.13 The Subservicers. The parties acknowledge that
the Servicer intends to appoint the Subservicers as the Servicer's agents for
the purpose of servicing on the Servicer's behalf such of the Mortgage Loans as
were originated by such subservicer. The Servicer agrees to cause the
Subservicers to service such Mortgage Loans in a manner consistent with the
Accepted Servicing Practices set forth in this Agreement, and agrees that
receipt by the Subservicers of any and all amounts which by the terms hereof are
required to be deposited in the Collection Account shall constitute receipt
thereof by the Servicer for all purposes hereof as of the date so received by
the Subservicers. Notwithstanding such designation of the Subservicers, the
Servicer agrees that it is, and it shall remain, fully obligated under the terms
hereof as Servicer with respect to all such Mortgage Loans, and nothing herein
shall relieve or release the Servicer from its obligations to the other parties
hereto to service such Mortgage Loans in the manner provided in this Agreement.
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Section 5.14 Reports to the Trustee; Collection Account
Statements. Not later than fifteen (15) days after each Distribution Date, the
Servicer shall provide to the Trustee and the Certificate Insurer a statement,
certified by a Servicing Officer, setting forth the status of the Collection
Account as of the close of business on the related Distribution Date, stating
that all distributions required by this Agreement to be made by the Servicer on
behalf of the Trustee have been made (or if any required distribution has not
been made by the Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account for each category of deposit
specified in Section 5.02 and each category of withdrawal specified in Section
5.03 and the aggregate of deposits into the Collection Account as specified in
Section 6.01(c). Such statement shall also state the aggregate unpaid principal
balance of all the Mortgage Loans as of the close of business on the last day of
the month preceding the month in which such Distribution Date occurs. Copies of
such statement shall be provided by the Trustee to any Certificateholder upon
request.
Section 5.15 Optional Purchase of Defaulted Mortgage Loans.
(a) The Servicer, in its sole discretion, shall have the right to elect (by
written notice sent to the Trustee and the Certificate Insurer), but shall not
be obligated, to purchase for its own account from the Trust Fund any Mortgage
Loan which is ninety (90) days or more Delinquent in the manner and at the price
specified in Section 2.06(b). The purchase price for any Mortgage Loan purchased
hereunder shall be deposited in the Collection Account and the Trustee, upon
receipt of such deposit, shall release or cause to be released to the Servicer
the related Trustee's Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the Servicer, in each case
without recourse, as shall be necessary to vest in the Servicer any Mortgage
Loan released pursuant hereto and the Servicer shall succeed to all the
Trustee's right, title and interest in and to such Mortgage Loan and all
security and documents related thereto. Such assignment shall be an assignment
outright and not for security. The Servicer shall thereupon own such Mortgage
Loan, and all security and documents, free of any further obligation to the
Trustee or the Certificateholders with respect thereto.
(b) After the Servicer has repurchased defaulted Mortgage
loans in a principal amount equal to 2% of the Original Pool Principal Balance,
then notwithstanding the foregoing, unless the Certificate Insurer consents, the
Servicer may only exercise its option pursuant to this Section 5.15 with respect
to the Mortgage Loan or Mortgage Loans that have been Delinquent for the longest
period at the time of such repurchase. If the Servicer shall have repurchased
Mortgage Loans under this Section 5.15 in an aggregate principal amount equal to
5% of the Original Pool Principal Balance, the Servicer may not thereafter
exercise its right under this Section 5.15 to purchase any Mortgage Loan without
the prior written consent of the Certificate Insurer. Any request by the
Servicer to the Certificate Insurer for consent to repurchase Mortgage Loans
that are not the most Delinquent shall be accompanied by a description of the
Mortgage Loans that have been Delinquent longer than the Mortgage Loan or
Mortgage Loans the Servicer proposes to repurchase. If the Certificate Insurer
fails to respond to such request within ten (10) Business Days after receipt
thereof, the Servicer may repurchase the Mortgage Loan or Mortgage Loans
proposed to be repurchased without the consent of, or any further action by, the
Certificate Insurer. Notice to the Certificate Insurer shall be delivered in
accordance with the terms of the Insurance and Reimbursement Agreement.
Section 5.16 Reports to be Provided by the Servicer. (a) In
connection with the transfer of the Certificates, the Trustee on behalf of any
Certificateholder may request that the Servicer make available to any
prospective Certificateholder annual audited financial statements of the
Servicer for one or more of the most recently completed five fiscal years for
which such statements are available, which request shall not be unreasonably
denied or unreasonably delayed. Such annual audited financial statements also
shall be made available to the Certificate Insurer upon request.
57
(b) The Servicer also agrees to make available on a reasonable
basis to the Certificate Insurer or any prospective Certificateholder a
knowledgeable financial or accounting officer for the purpose of answering
reasonable questions respecting recent developments affecting the Servicer or
the financial statements of the Servicer and to permit the Certificate Insurer
or any prospective Certificateholder to inspect the Servicer's servicing
facilities during normal business hours for the purpose of satisfying the
Certificate Insurer or such prospective Certificateholder that the Servicer has
the ability to service the Mortgage Loans in accordance with this Agreement.
Section 5.17 Adjustment of Servicing Compensation in Respect
of Prepaid Mortgage Loans. The Monthly Servicing Fee that the Servicer shall be
entitled to receive with respect to all of the Mortgage Loans and each
Distribution Date shall be offset on such Distribution Date by an amount equal
to the aggregate Prepayment Interest Shortfall with respect to all Mortgage
Loans which were subjects of Principal Prepayments during the month preceding
the month of such Distribution Date. The amount of any offset against the
Monthly Servicing Fee with respect to any Distribution Date under this Section
5.17 shall be limited to the Monthly Servicing Fee otherwise payable to the
Servicer (without adjustment on account of Prepayment Interest Shortfalls) with
respect to such Distribution Date, and the rights of the Certificateholders to
the offset of the aggregate Prepayment Interest Shortfalls shall not be
cumulative.
Section 5.18 Periodic Advances; Special Advance. (a) If, on
any Servicer Distribution Date, the Servicer determines that any Monthly
Payments due on the Due Date immediately preceding such Servicer Distribution
Date have not been received as of the close of business on the Business Day
preceding such Servicer Distribution Date, the Servicer shall determine the
amount of any Periodic Advance required to be made with respect to the related
Distribution Date. The Servicer shall, one Business Day after such Servicer
Distribution Date, deliver a magnetic tape or diskette to the Trustee indicating
the payment status of each Mortgage Loan as of such Servicer Distribution Date.
The Servicer shall include in the amount to be deposited in the Collection
Account on such Servicer Distribution Date an amount equal to the Periodic
Advance, if any, which deposit may be made in whole or in part from funds in the
Collection Account being held for future distribution or withdrawal on or in
connection with Distribution Dates in subsequent months. Any funds being held
for future distribution to Certificateholders and so used shall be replaced by
the Servicer from its own funds by deposit in the Collection Account on or
before the Business Day preceding the next Servicer Distribution Date on which
the funds in the Collection Account shall be less than the amount necessary to
pay in full the Insured Distribution Amount with respect to such date be made on
such date; provided, that if such funds are not sufficient the Servicer will use
its own funds to the extent necessary to fulfill its replacement or advance
obligation.
The Servicer shall designate on its records the specific
Mortgage Loans and related installments (or portions thereof) as to which such
Periodic Advance shall be deemed to have been made, such determination being
conclusive for purposes of withdrawals from the Collection Account pursuant to
Section 5.03.
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(b) In addition to the Periodic Advances the Servicer shall
make a special advance (the "Special Advance") on the Servicer Distribution Date
occurring in April 2001, with respect to interest on Mortgage Loans not having
their first payment due until after March 2001. The Special Advance will be
deposited into the Certificate Account and will be paid out of the Interest
Reserve Account, set up on the Closing Date and will be equal to the difference
of the (i) sum of (x) the Class A-I Interest Distribution Amount and (y) the
Class A-IO Interest Distribution Amount over (ii) the amount of interest
collected for the first Due Period. Any funds remaining in the Interest Reserve
Account after such distribution shall be remitted to the Servicer on the
Distribution Date. The Special Advance shall be made without regard to
recoverability, and shall not be reimbursable. In no event shall the Trustee, as
successor Servicer, be liable for the payment of the Special Advance except to
the extent of the amount on deposit in the Interest Reserve Account.
Section 5.19 Indemnification; Third Party Claims. (a) The
Servicer agrees to indemnify and to hold each of the Depositor, the Trustee, the
Collateral Agent, the Unaffiliated Seller, the Certificate Insurer and each
Certificateholder harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs, fees
and expenses that the Depositor, the Trustee, the Collateral Agent, the
Unaffiliated Seller, the Certificate Insurer and any Certificateholder may
sustain in any way related to the failure of the Servicer to perform its duties
and service the Mortgage Loans in compliance with the terms of this Agreement.
Each indemnified party and the Servicer shall immediately notify the other
indemnified parties if a claim is made by a third party with respect to this
Agreement, and the Servicer shall assume the defense of any such claim and pay
all expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against the Depositor, the Servicer, the Trustee, the Unaffiliated Seller, the
Certificate Insurer and/or a Certificateholder in respect of such claim. The
obligations of the Servicer under this Section 5.19 arising prior to any
resignation or termination of the Servicer hereunder shall survive the
resignation or termination of the Servicer.
(b) The Trustee may, if necessary, reimburse the Servicer from
amounts otherwise distributable on the Class X and R Certificates for all
amounts advanced by it pursuant to Section 4.04 of the Unaffiliated Seller's
Agreement, except when the claim relates directly to the failure of the
Servicer, if it is, or is an Affiliate of, the Unaffiliated Seller, to perform
its obligations to service and administer the Mortgages in compliance with the
terms of the Unaffiliated Seller's Agreement, or the failure of the Unaffiliated
Seller to perform its duties in compliance with the terms of this Agreement.
(c) The Trustee shall reimburse the Unaffiliated Seller from
amounts otherwise distributable on the Class X and R Certificates for all
amounts advanced by the Unaffiliated Seller pursuant to the second sentence of
Section 4.04(a)(ii) of the Unaffiliated Seller's Agreement except when the
relevant claim relates directly to the failure of the Unaffiliated Seller to
perform its duties in compliance with the terms of the Unaffiliated Seller's
Agreement.
Section 5.20 Maintenance of Corporate Existence and Licenses;
Merger or Consolidation of the Servicer. (a) The Servicer will keep in full
effect its existence, rights and franchises as a corporation, will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement and will otherwise operate its business so as to cause the
representations and warranties under Section 3.01 to be true and correct at all
times under this Agreement.
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(b) Any Person into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, or any Person succeeding
to the business of the Servicer, shall be an established mortgage loan servicing
institution that has a net worth of at least $15,000,000 and is a Permitted
Transferee, and in all events shall be the successor of the Servicer 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. The Servicer
shall send notice of any such merger or consolidation to the Trustee and the
Certificate Insurer.
Section 5.21 Assignment of Agreement by Servicer; Servicer Not
to Resign. The Servicer shall not assign this Agreement nor resign from the
obligations and duties hereby imposed on it except by mutual consent of the
Servicer, the Unaffiliated Seller, the Certificate Insurer and the Trustee or
upon the determination that the Servicer's duties hereunder are no longer
permissible under applicable law and that such incapacity cannot be cured by the
Servicer without incurring, in the reasonable judgment of the Certificate
Insurer, unreasonable expense. Any such determination that the Servicer's duties
hereunder are no longer permissible under applicable law permitting the
resignation of the Servicer shall be evidenced by a written Opinion of Counsel
(who may be outside counsel for the Servicer) to such effect delivered to the
Trustee, the Unaffiliated Seller, the Depositor and the Certificate Insurer. No
such resignation shall become effective until the Trustee or a successor
appointed in accordance with the terms of this Agreement has assumed the
Servicer's responsibilities and obligations hereunder in accordance with Section
7.02. The Servicer shall provide the Trustee, the Rating Agencies and the
Certificate Insurer with 30 days prior written notice of its intention to resign
pursuant to this Section 5.21.
Section 5.22 Periodic Filings with the Securities and Exchange
Commission; Additional Information. The Trustee shall prepare or cause to be
prepared for filing with the Commission (other than the initial Current Report
on Form 8-K to be filed by the Depositor in connection with the issuance of the
Certificates) any and all reports, statements and information respecting the
Trust and/or the Certificates required to be filed, and shall solicit any and
all proxies of the Certificateholders whenever such proxies are required to be
solicited, pursuant to the Securities Exchange Act of 1934, as amended. The
Depositor shall promptly file, and exercise its reasonable best efforts to
obtain a favorable response to, no-action requests with, or other appropriate
exemptive relief from, the Commission seeking the usual and customary exemption
from such reporting requirements granted to issuers of securities similar to the
Certificates if and to the extent the Depositor shall deem any such relief to be
necessary or appropriate. Fees and expenses incurred by the Trustee in
connection with the foregoing shall be reimbursed pursuant to Section 9.05 and
shall not be paid by the Trust.
The Servicer and the Depositor each agree to promptly furnish
to the Trustee, from time to time upon request, such further information,
reports and financial statements as the Trustee deems appropriate to prepare and
file all necessary reports with the Securities and Exchange Commission.
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ARTICLE VI
DISTRIBUTIONS AND PAYMENTS
Section 6.01 Establishment of Accounts; Withdrawals from
Accounts; Deposits to the Certificate Account. (a) The Trustee shall establish
and maintain the Certificate Account which shall be titled "Certificate Account,
The Chase Manhattan Bank, as trustee for the registered holders of ABFS Mortgage
Loan Trust 2001-1, Mortgage Pass-Through Certificates, Series 2001-1 which
account shall be an Eligible Account. Upon receipt of the proceeds of the sale
of the Certificates, on the Closing Date, the Trustee shall, upon the
Unaffiliated Seller's direction, from the proceeds of the sale of the
Certificates, deposit, on behalf of the Certificateholders in the Interest
Reserve Account, an amount equal to $800,000. Amounts on deposit in the Interest
Reserve Account shall be invested by the Trustee, at the direction of the
Servicer in Permitted Investments. Any such Permitted Investment shall mature no
later than the Servicer Distribution Date. All income realized from any such
Permitted Investment shall be for the benefit of the Servicer as additional
servicing compensation. The amount of any losses incurred in respect of any such
Permitted Investment shall be deposited in the Interest Reserve Account by the
Servicer out if its own funds immediately as realized.
(b) The Servicer shall direct the Trustee in writing to invest
the funds in the Certificate Account only in Permitted Investments. Any such
Permitted Investment shall mature no later than one Business Day prior to the
Distribution Date. No Permitted Investment shall be sold or disposed of at a
gain prior to maturity unless the Servicer has delivered to the Trustee an
Opinion of Counsel (at the Servicer's expense) that such sale or disposition
will not cause the Trust Fund to be subject to the tax on income from prohibited
transactions imposed by Code Section 860F(a)(1), otherwise subject the Trust
Fund to tax or cause the Trust Fund to fail to qualify as a REMIC and the
Certificate Insurer consents to such disposition. All income (other than any
gain from a sale or disposition of the type referred to in the preceding
sentence) realized from any such Permitted Investment shall be for the benefit
of the Servicer as additional servicing compensation. The amount of any losses
incurred in respect of any such investments shall be deposited in the
Certificate Account by the Servicer out of its own funds immediately as
realized.
(c) On each Servicer Distribution Date, the Servicer shall
cause to be deposited in the Certificate Account, from funds on deposit in the
Collection Account, (a) an amount equal to the Servicer Remittance Amount and
(b) Net Foreclosure Profits, if any with respect to the related Distribution
Date, minus any portion thereof payable to the Servicer pursuant to Section
5.03. On each Servicer Distribution Date, the Servicer shall also deposit into
the Certificate Account any Periodic Advances with respect to the related
Distribution Date calculated in accordance with Section 5.18.
Section 6.02 Permitted Withdrawals From the Certificate
Account. The Trustee shall withdraw or cause to be withdrawn funds from the
Certificate Account for the following purposes:
(a) to effect the distributions described in Section 6.05;
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(b) to pay to the Unaffiliated Seller with respect to each
Mortgage Loan or property acquired in respect thereof that has been repurchased
or replaced pursuant to Section 2.05 or 3.03 or to pay to the Servicer with
respect to each Mortgage Loan or property acquired in respect thereof that has
been purchased all amounts received thereon and not required to be distributed
as of the date on which the related repurchase or purchase price or Principal
Balance was determined;
(c) to pay the Servicer any interest earned on or investment
income earned with respect to funds in the Certificate Account;
(d) to return to the Collection Account any amount deposited
in the Certificate Account that was not required to be deposited therein; and
(e) to clear and terminate the Certificate Account upon
termination of the Trust Fund pursuant to Article VIII.
The Trustee shall keep and maintain a separate accounting for
withdrawals from the Certificate Account pursuant to each of subclauses (a)
through (e) listed above.
Section 6.03 Collection of Money. Except as otherwise
expressly provided herein, the Trustee may demand payment or delivery of all
money and other property payable to or receivable by the Trustee pursuant to
this Agreement, including (a) all payments due on the Mortgage Loans in
accordance with the respective terms and conditions of such Mortgage Loans and
required to be paid over to the Trustee by the Servicer or by any Sub-Servicer
and (b) Insured Payments. The Trustee shall hold all such money and property
received by it, as part of the Trust Fund and shall apply it as provided in this
Agreement.
Section 6.04 The Certificate Insurance Policy. (a) Within two
(2) days of each Servicer Distribution Date and based solely on the Servicer's
Remittance Report delivered to the Trustee, the Trustee shall determine with
respect to the immediately following Distribution Date, the amount to be on
deposit in the Certificate Account on such Distribution Date as a result of the
Servicer's remittance of the Servicer Remittance Amount on the related Servicer
Distribution Date, excluding the amount of any Insured Payment and after giving
effect to the application of the amounts described in clauses (a)(i) and (a)(ii)
of Section 6.05 for the related Distribution Date. The amounts described above
in the preceding sentence with respect to the Distribution Date are the
"Available Funds".
(b) If on any Distribution Date there is an Available Funds
Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the
Certificate Insurance Policy and submit such notice to the Certificate Insurer
no later than 12:00 noon New York City time on the third Business Day preceding
such Distribution Date as a claim for an Insured Payment in an amount equal to
such Available Funds Shortfall.
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(c) The Trustee shall establish a separate Eligible Account
for the benefit of Holders of the Certificates and the Certificate Insurer
referred to herein as the "Certificate Insurance Payment Account" over which the
Trustee shall have exclusive control and sole right of withdrawal. The Trustee
shall deposit upon receipt any amount paid under the Certificate Insurance
Policy in the Certificate Insurance Payment Account and distribute such amount
only for purposes of payment to the Class A Certificateholders of the Insured
Distribution Amount for which a claim was made and such amount may not be
applied to satisfy any costs, expenses or liabilities of the Servicer, the
Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy,
to the extent needed to pay the Insured Distribution Amount shall be transferred
to the Certificate Account on the related Distribution Date and disbursed by the
Trustee to the Class A Certificateholders in accordance with Section 6.05. It
shall not be necessary for such payments to be made by checks or wire transfers
separate from the checks or wire transfers used to pay the Insured Distribution
Amount with other funds available to make such payment. However, the amount of
any payment of principal or of interest on the Certificates to be paid from
funds transferred from the Certificate Insurance Payment Account shall be noted
as provided in paragraph (d) below in the Certificate Register and in the
statement to be furnished to Holders of the Class A Certificates pursuant to
Section 6.07. Funds held in the Certificate Insurance Payment Account shall not
be invested. Any funds remaining in the Certificate Insurance Payment Account on
the first Business Day following a Distribution Date shall be returned to the
Certificate Insurer pursuant to the written instructions of the Certificate
Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of
the amount of interest and principal paid in respect of any Certificate from
moneys received under the Certificate Insurance Policy. The Certificate Insurer
shall have the right to inspect such records at reasonable times during normal
business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified
copy of an order of the appropriate court that any Insured Distribution Amount
has been voided in whole or in part as a preference payment under applicable
bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall
comply with the provisions of the Certificate Insurance Policy to obtain payment
by the Certificate Insurer of such voided Insured Distribution Amount, and
shall, at the time it provides notice to the Certificate Insurer, notify, by
mail to the Certificateholders of the affected Certificates that, in the event
any Certificateholder's Insured Distribution Amount is so recovered, such
Certificateholder will be entitled to payment pursuant to the Certificate
Insurance Policy, a copy of which shall be made available through the Trustee,
the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and
the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if
any, its records evidencing the payments which have been made by the Trustee and
subsequently recovered from the Certificateholders, and dates on which such
payments were made.
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(f) The Trustee shall promptly notify the Certificate Insurer
of any proceeding or the institution of any action, of which a Responsible
Officer of the Trustee has actual knowledge, seeking the avoidance as a
preferential transfer under applicable bankruptcy, insolvency, receivership or
similar law (a "Preference Claim") of any distribution made with respect to the
Certificates. Each Certificateholder, by its purchase of Certificates, the
Servicer and the Trustee agree that, the Certificate Insurer (so long as no
Certificate Insurer Default exists) may at any time during the continuation of
any proceeding relating to a Preference Claim direct all matters relating to
such Preference Claim, including, without limitation, (i) the direction of any
appeal of any order relating to such Preference Claim and (ii) the posting of
any surety, supersedeas or performance bond pending any such appeal. In addition
and without limitation of the foregoing, the Certificate Insurer shall be
subrogated to, and each Certificateholder, the Servicer and the Trustee hereby
delegate and assign to the Certificate Insurer, to the fullest extent permitted
by law, the rights of the Servicer, the Trustee and each Certificateholder in
the conduct of any such Preference Claim, including, without limitation, all
rights of any party to any adversary proceeding or action with respect to any
court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates,
furnish to the Certificate Insurer a notice of such retirement, and, upon
retirement of the Certificates and the expiration of the term of the Certificate
Insurance Policy, surrender the Certificate Insurance Policy to the Certificate
Insurer for cancellation.
Section 6.05 Distributions. (a) No later than 12:00 noon, New
York, New York time on the Servicer Distribution Date, the Servicer shall
deliver to the Trustee a report in computer-readable form containing such
information as to enable the Trustee to make the distribution pursuant to clause
(i) through (x) below, and such other information as the Trustee shall
reasonably require. With respect to the Certificate Account, on each
Distribution Date, the Trustee shall make the following allocations,
disbursements and transfers in the following order of priority, and each such
allocation, transfer and disbursement shall be treated as having occurred only
after all preceding allocations, transfers and disbursements have occurred:
(i) to the Trustee, an amount equal to the Trustee's Fees then
due to it;
(ii) from amounts then on deposit in the Certificate Account,
to the Certificate Insurer the Premium Amount for such Distribution
Date;
(iii) from amounts then on deposit in the Certificate Account,
the Interest Distribution Amount for the Class A Certificates, which
shall be further distributed pari passu to the owners of the Class A-1
Certificates and to the owners of the Class A-IO Certificates based on
the ratio of the Class A-1 Interest Distribution Amount and the Class
A-IO Interest Distribution Amount, respectively, to such Interest
Distribution Amount;
(iv) from amounts then on deposit in the Certificate Account,
the Reimbursement Amount owing to the Certificate Insurer;
(v) from amounts then on deposit in the Certificate Account,
the Principal Distribution Amount for the Class A-1 Certificates, until
the principal balance of the Class A-1 Certificates is reduced to zero;
(vi) from amounts then on deposit in the Certificate Amount,
the amount of any Mortgage Loan Interest Shortfalls for the Class A
Certificates which shall be further distributed pari passu to the
owners of the Class A-1 Certificates and to the owners of the Class
A-IO Certificates, in the same manner as the distribution described in
(iii) above;
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(vii) from amounts then on deposit in the Certificate Account,
to the Trustee, an amount equal to the outstanding expenses due the
Trustee pursuant to this Agreement and not otherwise paid or reimbursed
by the Servicer;
(viii) from amounts then on deposit in the Certificate
Account, to the Servicer for reimbursement of any Nonrecoverable
Advances and nonrecoverable Servicing Advances;
(ix) from amounts then on deposit in the Certificate Account,
to the holders of the Class X Certificates the sum of all amounts to
which such Certificates are entitled pursuant to Section 2.07(a)(i),
notes (3) and (4) hereunder and, to the extent not duplicative, any
Overcollateralization Reduction Amounts; and
(x) to the holders of the Class R Certificates, any further
remaining balance.
Notwithstanding the foregoing, the aggregate amounts
distributed on all Distribution Dates to the Holders of the Class A-1
Certificates on account of principal shall not exceed the Original Certificate
Principal Balance for the Class A-1 Certificates.
Section 6.06 Investment of Accounts. (a) So long as no Event
of Default shall have occurred and be continuing, and consistent with any
requirements of the Code, all or a portion of any Account other than the
Certificate Insurance Payment Account held by the Trustee shall be invested and
reinvested by the Trustee, as directed in writing by the Servicer, in one or
more Permitted Investments bearing interest or sold at a discount. If an Event
of Default shall have occurred and be continuing or if the Servicer does not
provide investment directions, the Trustee shall invest all Accounts in
Permitted Investments described in paragraph (iv) of the definition of Permitted
Investments. No such investment in any Account shall mature later than the
Business Day immediately preceding the next Distribution Date (except that if
such Permitted Investment is an obligation of the Trustee, then such Permitted
Investment shall mature not later than such Distribution Date).
(b) Subject to Section 6.01(b), if any amounts are needed for
disbursement from any Account held by the Trustee and sufficient uninvested
funds are not available to make such disbursement, the Trustee shall cause to be
sold or otherwise converted to cash a sufficient amount of the investments in
such Account. The Trustee shall not be, and the Servicer shall be, liable for
any investment loss or other charge resulting therefrom unless the Trustee's
failure to perform in accordance with this Section 6.06 is the cause of such
loss or charge.
(c) Subject to Section 9.01 hereof, the Trustee shall not in
any way be held liable by reason of any insufficiency in any Account held by the
Trustee resulting from any investment loss on any Permitted Investment included
therein (except to the extent that the Trustee is the obligor and has defaulted
thereon or as provided in subsection (b) of this Section 6.06).
(d) So long as no Event of Default shall have occurred and be
continuing, all net income and gain realized from investment of, and all
earnings on, funds deposited in any Account (excluding the Certificate Insurance
Payment Account) shall be for the benefit of the Servicer as servicing
compensation (in addition to the Servicing Fee). The Servicer shall deposit in
the related Account the amount of any loss incurred in respect of any Permitted
Investment held therein which is in excess of the income and gain thereon
immediately upon realization of such loss, without any right to reimbursement
therefor from its own funds.
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Section 6.07 Reports by the Trustee. (a) On each Distribution
Date the Trustee shall forward to each Holder, to the Certificate Insurer, to
the Underwriter, to the Depositor and to the Rating Agencies the report provided
by the Servicer pursuant to Section 6.05 (the "Servicer Remittance Report"),
setting forth information including, without limitation, the following
information:
(i) the amount of the distribution with respect to the Class
A-1, Class A-IO, Class R and Class X Certificates;
(ii) the amount of such distributions allocable to principal,
separately identifying the aggregate amount of any Prepayments or other
unscheduled recoveries of principal included therein and separately
identifying any Overcollateralization Increase Amounts;
(iii) the amount of such distributions allocable to interest
and the calculation thereof;
(iv) the Certificate Principal Balance of the Class A-1
Certificates as of such Distribution Date, together with the principal
amount of the Class A-1 Certificates (based on a Certificate in an
original principal amount of $1,000) then outstanding, in each case
after giving effect to any payment of principal on such Distribution
Date;
(v) the Certificate Notional Balance of the Class A-IO
Certificates as of such Distribution Date, together with the Notional
Amount of the Class A-IO Certificates then outstanding, in each case
after giving effect to any payment of interest on such Distribution
Date.
(vi) the amount of any Insured Payment included in the amounts
distributed to the Class A-1 and Class A-IO Certificateholders on such
Distribution Date;
(vii) the total of any Substitution Adjustments and any Loan
Repurchase Price amounts included in such distribution; and
(viii) the amounts, if any, of any Liquidated Loan Losses for
consumer purpose loans and for business purpose loans for the related
Due Period and cumulative Liquidated Loan Losses since the Startup Date
for consumer purpose loans and for business purpose loans.
Items (i), (ii) and (iii) above shall, with respect to the
Class A-1 Certificates, be presented on the basis of a Certificate having a
$1,000 denomination. In addition, by January 31 of each calendar year following
any year during which the Certificates are outstanding, the Trustee shall
furnish a report to each Holder of record if so requested in writing at any time
during each calendar year as to the aggregate of amounts reported pursuant to
(i), (ii) and (iii) with respect to the Certificates for such calendar year.
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(b) All distributions made to the Class A-1
Certificateholders, the Class A-IO Certificateholders and the Class X and R
Certificateholders as a Class on each Distribution Date will be made on a pro
rata basis among the Certificateholders of each Class on the next preceding
Record Date based on the Percentage Interest represented by their respective
Certificates, and shall be made by wire transfer of immediately available funds
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor, if, in the case of a Class A-1
Certificateholder, such Certificateholder shall own of record Certificates of
the same Class which have denominations aggregating at least $5,000,000
appearing in the Certificate Register and shall have provided complete wiring
instructions at least five Business Days prior to the Record Date, and otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register.
(c) In addition, the Servicer Remittance Report described in
subsection (a) above forwarded by the Trustee to each Holder, to the Certificate
Insurer, to the Underwriter, to the Servicer, to the Depositor and to the Rating
Agencies on each Distribution Date, shall include the following information with
respect to all Mortgage Loans as well as a break out as to (x) consumer purpose
and business purpose Mortgage Loans as of the close of business on the last
Business Day of the prior calendar month (except as otherwise provided in clause
(v) below), which is hereby required to be prepared by the Servicer and
furnished to the Trustee for such purpose and to the Certificate Insurer on or
prior to the related Servicer Distribution Date:
(i) for the related Due Period, the total number of Mortgage
Loans and the aggregate Principal Balances thereof, together with the
number, aggregate principal balances of such Mortgage Loans and the
percentage (based on the aggregate Principal Balances of the Mortgage
Loans) of the aggregate Principal Balances of such Mortgage Loans to
the aggregate Principal Balance of all Mortgage Loans (A) 31-60 days
Delinquent, (B) 61-90 days Delinquent and (C) 91 or more days
Delinquent;
(ii) for the related Due Period, the number, aggregate
Principal Balances of all Mortgage Loans and percentage (based on the
aggregate Principal Balances of the Mortgage Loans) of the aggregate
Principal Balances of such Mortgage Loans to the aggregate Principal
Balance of all Mortgage Loans in foreclosure proceedings and the
number, aggregate Principal Balances of all Mortgage Loans and
percentage (based on the aggregate Principal Balances of the Mortgage
Loans) of any such Mortgage Loans also included in any of the
statistics described in the foregoing clause (i);
(iii) for the related Due Period, the number, aggregate
Principal Balances of all Mortgage Loans and percentage (based on the
aggregate Principal Balances of the Mortgage Loans) of the aggregate
Principal Balances of such Mortgage Loans to the aggregate Principal
Balance of all Mortgage Loans relating to Mortgagors in bankruptcy
proceedings and the number, aggregate Principal Balances of all
Mortgage Loans and percentage (based on the aggregate Principal
Balances of the Mortgage Loans) of any such Mortgage Loans also
included in any of the statistics described in the foregoing clause
(i);
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(iv) for the related Due Period, the number, aggregate
Principal Balances of all Mortgage Loans and percentage (based on the
aggregate Principal Balances of the Mortgage Loans) of the aggregate
Principal Balances of such Mortgage Loans to the aggregate Principal
Balance of all Mortgage Loans relating to REO Properties and the
number, aggregate Principal Balances of all Mortgage Loans and
percentage (based on the aggregate Principal Balances of the Mortgage
Loans) of any such Mortgage Loans also included in any of the
statistics described in the foregoing clause (i);
(v) the weighted average Mortgage Interest Rate as of the Due
Date occurring in the Due Period related to such Distribution Date;
(vi) the weighted average remaining term to stated maturity of
all Mortgage Loans;
(vii) the book value of any REO Property;
(viii) the Pool Cumulative Loan Losses for the related Due
Period and the aggregate Pool Cumulative Loan Losses since the Closing
Date;
(ix) the Delinquency Ratio, the Rolling Three Month
Delinquency Rate and the Twelve Month Loss Amount; and
(x) the total number of Mortgage Loans and the Pool Principal
Balance.
Section 6.08 Additional Reports by Trustee. (a) The Trustee
shall report to the Depositor, the Servicer and the Certificate Insurer with
respect to the amount then held in each Account (including investment earnings
accrued or scheduled to accrue) held by the Trustee and the identity of the
investments included therein, as the Depositor, the Servicer or the Certificate
Insurer may from time to time request in writing.
(b) From time to time, at the request of the Certificate
Insurer, the Trustee shall report to the Certificate Insurer with respect to its
actual knowledge, without independent investigation, of any breach of any of the
representations or warranties relating to individual Mortgage Loans set forth in
any Unaffiliated Seller's Agreement or in Section 3.01 or 3.02 hereof. The
Trustee shall also provide the Certificate Insurer such other information as may
be reasonably requested by it.
Section 6.09 Compensating Interest. Not later than the
Servicer Distribution Date, the Servicer shall remit to the Trustee (without
right or reimbursement therefor) for deposit into the Certificate Account an
amount equal to the lesser of (a) the aggregate of the Prepayment Interest
Shortfalls for the related Distribution Date resulting from Principal
Prepayments during the related Due Period and (b) its aggregate Monthly
Servicing Fees received in the related Due Period and shall not have the right
to reimbursement therefor (the "Compensating Interest"); provided, however, that
Compensating Interest with respect to any Mortgage Loan and any Distribution
Date shall not exceed the Servicing Fees due in respect of such Mortgage Loan on
such Distribution Date.
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Section 6.10 Effect of Payments by the Certificate Insurer;
Subrogation. Anything herein to the contrary notwithstanding, any payment with
respect to principal of or interest on the Certificates which is made with
moneys received pursuant to the terms of the Certificate Insurance Policy shall
not be considered payment of the Certificates from the Trust Fund. The
Depositor, the Servicer and the Trustee acknowledge, and each Holder by its
acceptance of a Certificate agrees, that without the need for any further action
on the part of the Certificate Insurer, the Depositor, the Servicer, the Trustee
or the Certificate Registrar (a) to the extent the Certificate Insurer makes
payments, directly or indirectly, on account of principal of or interest on the
Certificates to the Holders of such Certificates, the Certificate Insurer will
be fully subrogated to, and each Certificateholder, the Servicer and the Trustee
hereby delegate and assign to the Certificate Insurer, to the fullest extent
permitted by law, the rights of such Holders to receive such principal and
interest from the Trust Fund, including, without limitation, any amounts due to
the Certificateholders in respect of securities law violations arising from the
offer and sale of the Certificates, and (b) the Certificate Insurer shall be
paid such amounts from the sources and in the manner provided herein for the
payment of such amounts and as provided in the Insurance and Reimbursement
Agreement. The Trustee and the Servicer shall cooperate in all respects with any
reasonable request by the Certificate Insurer for action to preserve or enforce
the Certificate Insurer's rights or interests under this Agreement without
limiting the rights or affecting the interests of the Holders as otherwise set
forth herein.
Section 6.11 Additional Rights of Certificate Insurer. (a)
Unless a Certificate Insurer Default exists and is continuing, the Trustee, the
Depositor and the Servicer shall cooperate in all respects with any reasonable
request by the Certificate Insurer for action to preserve or enforce the
Certificate Insurer's rights or interests hereunder without limiting the rights
or affecting the interests of the Certificateholders as otherwise set forth
herein.
(b) Unless a Certificate Insurer Default exists and is
continuing, the Certificate Insurer shall have the right to participate in, to
direct the enforcement or defense of, and, at the Certificate Insurer's sole
option, to institute or assume the defense of, any action, proceeding or
investigation for any remedy available to the Trustee with respect to any matter
that could adversely affect the Trust, the Trust Fund or the rights or
obligations of the Certificate Insurer hereunder, under the Unaffiliated Seller
Agreement, under the Insurance and Reimbursement Agreement or under the
Certificate Insurance Policy or any other instrument, document or agreement
relating to the foregoing (collectively, the "Transaction Documents"), including
(without limitation) any insolvency or bankruptcy proceeding in respect of any
Originator, the Unaffiliated Seller, the Servicer, the Depositor or any
Affiliate thereof provided, that such participation or direction shall not be in
conflict with any rule of law or with the terms of this Agreement. Following
written notice to the Trustee, the Certificate Insurer shall have exclusive
right to determine, in its sole discretion, the actions necessary to preserve
and protect the Trust and the Trust Fund. The Certificate Insurer shall be
entitled to reimbursement for all out-of-pocket costs and expenses of the
Certificate Insurer in connection with such action, proceeding or investigation,
including (without limitation) reasonable attorneys' fees and any judgment or
settlement entered into affecting the Certificate Insurer or the Certificate
Insurer's interests, all of which shall be included in the Reimbursement Amount.
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(c) In connection with any such action, proceeding or
investigation for any remedy available to the Trustee with respect to any matter
that could adversely affect the Trust, the Trust Fund or the rights or
obligations of the Certificate Insurer hereunder or under the Certificate
Insurance Policy or the Transaction Documents, including (without limitation)
any insolvency or bankruptcy proceeding in respect of any Originator, the
Unaffiliated Seller, the Servicer, the Depositor, the Trust or any Affiliate
thereof, the Trustee hereby agrees to cooperate with, and (unless a Certificate
Insurer Default exists and is continuing) to take such action as reasonably
directed by, the Certificate Insurer, including (without limitation) entering
into such agreements and settlements as the Certificate Insurer shall direct, in
its sole discretion, without the consent of any Certificateholder.
Notwithstanding any other provision herein or in any of the other Transaction
Documents, the Trustee shall not be liable to the Certificate Insurer or any
Certificateholder for any such action that conforms to the direction of the
Certificate Insurer.
(d) Any judgment or settlement entered against or affecting
the Trust or the Trust Fund in connection with any action, proceeding or
investigation shall be paid by the Trustee from the Trust Fund out of funds that
would otherwise be distributed to the Holders of the Class X or R Certificates.
(e) The Trustee hereby agrees to provide to the Certificate
Insurer prompt written notice of any action, proceeding or investigation that
names the Trust or the Trustee as a party or that could adversely affect the
Trust, the Trust Fund or the rights or obligations of the Certificate Insurer
hereunder or under the Certificate Insurance Policy or the Transaction
Documents, including (without limitation) any insolvency or bankruptcy
proceeding in respect of any Originator, the Unaffiliated Seller, the Servicer,
the Depositor, the Trust or any Affiliate thereof.
(f) Notwithstanding anything contained herein or in any of the
other Transaction Documents to the contrary (other than at any time during which
a Certificate Insurer Default exists or is continuing), the Trustee shall not,
without the Certificate Insurer's prior written consent or unless directed by
the Certificate Insurer, undertake or join any litigation or agree to any
settlement of any action, proceeding or investigation affecting the Trust, the
Trust Fund or the rights or obligations of the Certificate Insurer hereunder or
under the Certificate Insurance Policy or the Transaction Documents.
(g) Each Holder of a Certificate, by acceptance of its
Certificate, and the Trustee agree that Certificate Insurer shall have such
rights as set forth in this Section, which are in addition to any rights of the
Certificate Insurer pursuant to the other provisions of the Transaction
Documents, that the rights set forth in this Section may be exercised by the
Certificate Insurer, in its sole discretion, without the need for the consent or
approval of any Certificateholder or the Trustee, notwithstanding any other
provision contained herein or in any of the other Transaction Documents, and
that nothing contained in this Section shall be deemed to be an obligation of
the Certificate Insurer to exercise any of the rights provided for herein.
(h) The Trustee shall, upon reasonable prior written request,
permit any representative of the Certificate Insurer, during the Trustee's
normal business hours, to examine all books of accounts, records, reports and
other information of the Trustee relating to the Certificates and the Trust Fund
(including, without limitation, the Mortgage Files), to make copies and extracts
therefrom and to discuss the Trustee's performance of its duties with respect to
the Transaction Documents with the Responsible Officers of the Trustee.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. (a) In case one or more of the
following events (each an "Event of Default") shall occur and be continuing:
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(i) any failure by the Servicer to remit to the Trustee any
payment required to be made by the Servicer under the terms of this
Agreement which continues unremedied for one (1) Business Day after the
date upon which written notice of such failure, requiring the same to
be remedied, shall have been given to the Servicer and the Certificate
Insurer by the Trustee or to the Servicer and the Trustee by the
Certificate Insurer or Certificateholders of Class A Certificates
evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required
Servicing Advance which failure continues unremedied for a period of
thirty (30) days after the date 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 any
Certificateholder or the Certificate Insurer;
(iii) any failure on the part of the Servicer duly to observe
or perform in any material respect any other of the covenants or
agreements on the part of the Servicer contained in this Agreement, or
the failure of any representation and warranty made pursuant to Section
3.01 to be true and correct which continues unremedied for a period of
thirty (30) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Servicer, as the case may be, by the Depositor or the Trustee or to
the Servicer and the Trustee by any Certificateholder or the
Certificate Insurer;
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law or for
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree
or order shall have remained in force, undischarged or unstayed for a
period of forty-five (45) days;
(v) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to the Servicer or of or relating to all or
substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability to pay
its debts 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;
(vii) the Certificate Insurer shall notify the Trustee of any
event of default under the Insurance and Reimbursement Agreement;
(viii) if on any Distribution Date the Rolling Three Month
Delinquency Rate exceeds 12.50% of the aggregate outstanding Principal
Balance of the Mortgage Loans;
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(ix) if on any Distribution Date, the Twelve Month Loss Amount
exceeds 2.50% of the sum of the aggregate outstanding Principal Balance
of the Mortgage Loans as of the close of business on the first day of
the twelfth preceding calendar month (or, if later, the Cut-off Date);
(x) ABFS or the Servicer shall fail to pay any scheduled
payment of principal or interest on any scheduled debt service expense
when due and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such scheduled debt service;
(xi) Net Worth to be less than the sum of (i) $30,000,000 plus
(ii) 50% of the cumulative Net Income for each fiscal quarter ending
after the Closing Date; (excluding any fiscal quarter for which Net
Income was less than zero); or
(xii) any Change of Control shall occur.
Then, and in each and every such case, so long as such Event
of Default shall not have been remedied: (x) with respect solely to clause (i)
above, if such payment is in respect of Periodic Advances or Compensating
Interest owing by the Servicer and such payment is not made by 12:00 Noon, New
York time on the fourth Business Day prior to the applicable Distribution Date,
the Trustee, upon receipt of written notice or discovery by a Responsible
Officer of such failure, shall give immediate telephonic notice of such failure
to a Servicing Officer of the Servicer and to the Certificate Insurer and the
Trustee may, and shall, at the direction of the Certificate Insurer, terminate
all of the rights and obligations of the Servicer under this Agreement and the
Trustee, or a successor servicer appointed in accordance with Section 7.02,
shall immediately make such Periodic Advance or payment of Compensating Interest
and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer;
(y) with respect to any other Event of Default, the Trustee shall, at the
direction of the Certificate Insurer, by notice in writing to the Servicer and a
Responsible Officer of the Trustee, terminate all the rights and obligations of
the Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, as servicer. Upon receipt by the Servicer of such written
notice, all authority and power of the Servicer under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall, subject to Section 7.02,
pass to and be vested in the Trustee or such other Person as may be specified by
the Certificate Insurer and the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, at the expense of the Servicer, any and all documents and other
instruments and do or cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, including, but
not limited to, the transfer and endorsement or assignment of the Mortgage Loans
and related documents. The Servicer agrees to cooperate (and pay any related
costs and expenses) with the Trustee in effecting the termination of the
Servicer's responsibilities and rights hereunder and the transfer of such
responsibilities and rights to a successor Servicer, including, without
limitation, the transfer to the Trustee or its designee for administration by it
of all amounts which shall at the time be credited by the Servicer to the
Collection Account or thereafter received with respect to the Mortgage Loans.
The Trustee shall promptly notify the Certificate Insurer and the Rating
Agencies of the occurrence of an Event of Default.
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Section 7.02 Trustee to Act; Appointment of Successor. (a) On
and after the time the Servicer receives a notice of termination pursuant to
Section 7.01, or the Trustee receives the resignation of the Servicer evidenced
by an Opinion of Counsel pursuant to Section 5.21, the Trustee shall promptly
notify the Rating Agencies, except as otherwise provided in Section 7.01, the
Trustee or such other Person as may be specified by the Certificate Insurer
shall be the successor in all respects to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof
arising on or after the date of succession; provided, however, that the Trustee
shall not be liable for any actions or the representations and warranties of any
servicer prior to it and including, without limitation, the obligations of the
Servicer set forth in Sections 2.06 and 3.03. The Trustee, as successor
servicer, shall be obligated to pay Compensating Interest pursuant to Section
6.09 in any event and to make advances pursuant to Section 5.18 unless, and only
to the extent the Trustee determines reasonably and in good faith that such
advances would not be recoverable pursuant to Section 5.04, such determination
to be evidenced by a certification of a Responsible Officer of the Trustee
delivered to the Certificate Insurer.
(b) Notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act or if the Certificate
Insurer so requests in writing to the Trustee, appoint, pursuant to such
direction of the Certificate Insurer, or if no such direction is provided to the
Trustee, pursuant to the provisions set forth in paragraph (c) below, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution acceptable to the Certificate Insurer that has 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.
(c) In the event the Trustee is the successor servicer, it
shall be entitled to the same Servicing Compensation (including the Servicing
Fee as adjusted pursuant to the definition thereof) and other funds pursuant to
Section 5.08 hereof as the Servicer if the Servicer had continued to act as
servicer hereunder. In the event the Trustee is unable or unwilling to act as
successor servicer, the Trustee shall solicit, by public announcement, bids from
housing and home finance institutions, banks and mortgage servicing institutions
meeting the qualifications set forth above. Such public announcement shall
specify that the successor servicer shall be entitled to the full amount of the
aggregate Servicing Fees hereunder as servicing compensation, together with the
other Servicing Compensation. Within thirty days after any such public
announcement, the Trustee shall negotiate and effect the sale, transfer and
assignment of the servicing rights and responsibilities hereunder to the
qualified party submitting the highest qualifying bid. The Trustee shall deduct
from any sum received by the Trustee from the successor to the Servicer in
respect of such sale, transfer and assignment all costs and expenses of any
public announcement and of any sale, transfer and assignment of the servicing
rights and responsibilities hereunder and the amount of any unreimbursed
Servicing Advances and Periodic Advances owed to the Trustee. After such
deductions, the remainder of such sum shall be paid by the Trustee to the
Servicer at the time of such sale, transfer and assignment to the Servicer's
successor.
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(d) The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. The Servicer agrees to cooperate with the Trustee and any successor
servicer in effecting the termination of the Servicer's servicing
responsibilities and rights hereunder and shall promptly provide the Trustee or
such successor servicer, as applicable, at the Servicer's cost and expense, all
documents and records reasonably requested by it to enable it to assume the
Servicer's functions hereunder and shall promptly also transfer to the Trustee
or such successor servicer, as applicable, all amounts that then have been or
should have been deposited in the Collection Account by the Servicer or that are
thereafter received with respect to the Mortgage Loans. Any collections received
by the Servicer after such removal or resignation shall be endorsed by it to the
Trustee and remitted directly to the Trustee or, at the direction of the
Trustee, to the successor servicer. Neither the Trustee nor any other successor
servicer shall be held liable by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Servicer to deliver, or any delay in delivering, cash, documents
or records to it, or (ii) restrictions imposed by any regulatory authority
having jurisdiction over the Servicer hereunder. Notwithstanding anything to the
contrary herein, no appointment of a successor to the Servicer under this
Agreement shall be effective until the Certificate Insurer shall have consented
thereto, and written notice of such proposed appointment shall have been
provided by the Trustee to the Certificate Insurer and to each
Certificateholder. The Trustee shall not resign as servicer until a successor
servicer reasonably acceptable to the Certificate Insurer has been appointed or
until a successor servicer has been appointed in accordance with paragraph (c)
above. The Certificate Insurer shall have the right to remove the Trustee (or
any Successor Servicer) as successor Servicer under this Section 7.02 without
cause, and the Trustee shall appoint such other successor Servicer as directed
by the Certificate Insurer.
(e) Pending appointment of a successor to the Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as the Certificate Insurer and such successor shall agree; provided,
however, that unless otherwise agreed by the Certificate Insurer, no such
compensation shall be in excess of that permitted the Servicer pursuant to
Section 5.08, together with other Servicing Compensation. The Servicer, the
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
Section 7.03 Waiver of Defaults. The Majority
Certificateholders may, on behalf of all Certificateholders, and subject to the
consent of the Certificate Insurer, waive any events permitting removal of the
Servicer as servicer pursuant to this Article VII; provided, however, that the
Majority Certificateholders may not waive a default in making a required
distribution on a Certificate without the consent of the holder of such
Certificate. Upon any waiver of a past default, such default shall cease to
exist, and any Event of Default 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 default 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 and the Certificate Insurer.
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Section 7.04 Rights of the Certificate Insurer to Exercise
Rights of Class A-1 and Class A-IO Certificateholders. By accepting its
Certificate, each Class A-1and Class A-IO Certificateholder agrees that unless a
Certificate Insurer Default exists, the Certificate Insurer shall be deemed to
be the Certificateholders for all purposes (other than with respect to the
receipt of payment on the Certificates) and shall have the right to exercise all
rights of the Class A-1 and Class A-IO Certificateholders under this Agreement
and under the Class A-1 and Class A-IO Certificates without any further consent
of the Class A-1 and Class A-IO Certificateholders, including, without
limitation:
(a) the right to require the Unaffiliated Seller to repurchase
Mortgage Loans pursuant to Section 2.06 or 3.03 hereof to the extent set forth
in such Sections;
(b) the right to give notices of breach or to terminate the
rights and obligations of the Servicer as servicer pursuant to Section 7.01
hereof and to consent to or direct waivers of Servicer defaults pursuant to
Section 7.03 hereof;
(c) the right to direct the actions of the Trustee during the
continuance of an Event of Default pursuant to Sections 7.01 and 7.02 hereof;
(d) the right to institute proceedings against the Servicer
pursuant to Section 7.01 hereof;
(e) the right to direct the Trustee to investigate certain
matters pursuant to Section 9.02(a)(v) hereof;
(f) the right to remove the Trustee pursuant to Section 9.07
hereof;
(g) the right to direct foreclosures upon the failure of the
Servicer to do so in accordance with the provisions of Section 5.06 of this
Agreement; and
(h) any rights or remedies expressly given the Majority
Certificateholders.
In addition, each Certificateholder agrees that, subject to
Section 10.02, unless a Certificate Insurer Default exists, the rights
specifically enumerated above may only be exercised by the Certificateholders
with the prior written consent of the Certificate Insurer.
Section 7.05 Trustee To Act Solely with Consent of the
Certificate Insurer. Unless a Certificate Insurer Default exists, the Trustee
shall not, without the Certificate Insurer's consent or unless directed by the
Certificate Insurer:
(a) terminate the rights and obligations of the Servicer as
Servicer pursuant to Section 7.01 hereof;
(b) agree to any amendment pursuant to Section 10.03 hereof;
or
(c) undertake any litigation.
The Certificate Insurer may, in writing and in its sole
discretion renounce all or any of its rights under Sections 7.04, 7.05 or 7.06
or any requirement for the Certificate Insurer's consent for any period of time.
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Section 7.06 Mortgage Loans, Trust Fund and Accounts Held for
Benefit of the Certificate Insurer. (a) The Trustee shall hold the Trust Fund
and the Mortgage Files for the benefit of the Certificateholders and the
Certificate Insurer and all references in this Agreement and in the Certificates
to the benefit of Holders of the Certificates shall be deemed to include the
Certificate Insurer. The Trustee shall cooperate in all reasonable respects with
any reasonable request by the Certificate Insurer for action to preserve or
enforce the Certificate Insurer's rights or interests under this Agreement and
the Certificates unless, as stated in an Opinion of Counsel addressed to the
Trustee and the Certificate Insurer, such action is adverse to the interests of
the Certificateholders or diminishes the rights of the Certificateholders or
imposes additional burdens or restrictions on the Certificateholders.
(b) The Servicer hereby acknowledges and agrees that it shall
service the Mortgage Loans for the benefit of the Certificateholders and for the
benefit of the Certificate Insurer, and all references in this Agreement to the
benefit of or actions on behalf of the Certificateholders shall be deemed to
include the Certificate Insurer.
Section 7.07 Certificate Insurer Default. Notwithstanding
anything elsewhere in this Agreement or in the Certificates to the contrary, if
a Certificate Insurer Default exists, or if and to the extent the Certificate
Insurer has delivered its written renunciation of all of its rights under this
Agreement, the provisions of this Article VII and all other provisions of this
Agreement which (a) permit the Certificate Insurer to exercise rights of the
Certificateholders, (b) restrict the ability of the Certificateholders, the
Servicer or the Trustee to act without the consent or approval of the
Certificate Insurer, (c) provide that a particular act or thing must be
acceptable to the Certificate Insurer, (d) permit the Certificate Insurer to
direct (or otherwise to require) the actions of the Trustee, the Servicer or the
Certificateholders, (e) provide that any action or omission taken with the
consent, approval or authorization of the Certificate Insurer shall be
authorized hereunder or shall not subject the party taking or omitting to take
such action to any liability hereunder or (f) which have a similar effect, shall
be of no further force and effect and the Trustee shall administer the Trust
Fund and perform its obligations hereunder solely for the benefit of the Holders
of the Certificates. Nothing in the foregoing sentence, nor any action taken
pursuant thereto or in compliance therewith, shall be deemed to have released
the Certificate Insurer from any obligation or liability it may have to any
party or to the Certificateholders hereunder, under any other agreement,
instrument or document (including, without limitation, the Certificate Insurance
Policy) or under applicable law.
ARTICLE VIII
TERMINATION
Section 8.01 Termination. (a) Subject to Section 8.02, this
Agreement shall terminate upon notice to the Trustee of either: (i) the later of
the distribution to Certificateholders of the final payment or collection with
respect to the last Mortgage Loan (or Periodic Advances of same by the
Servicer), or the disposition of all funds with respect to the last Mortgage
Loan and the remittance of all funds due hereunder and the payment of all
Reimbursement Amounts, Premium Amounts, Trustee Fees and other amounts due and
payable to the Certificate Insurer and the Trustee or (ii) mutual consent of the
Servicer, the Trustee, the Certificate Insurer and all Certificateholders in
writing; provided, however, that in no event shall the Trust established by this
Agreement terminate later than: (i) twenty-one years after the death of the last
surviving lineal descendant of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, late Ambassador of the United
States to the Court of St. ▇▇▇▇▇, alive as of the date hereof or (ii) the
Distribution Date in March, 2037.
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(b) In addition, subject to Section 8.02, the Class X
Certificateholder may, at its option and at its sole cost and expense, terminate
this Agreement on the first Distribution Date after any Distribution Date on
which the Pool Principal Balance is less than 10% of the Original Pool Principal
Balance (the "Clean-Up Call Date") by purchasing, on such succeeding
Distribution Date, all of the outstanding Mortgage Loans and REO Properties at a
price equal to the sum of (i) 100% of the aggregate Principal Balance of each
outstanding Mortgage Loan and each REO Property and (ii) the greater of (1) the
aggregate amount of accrued and unpaid interest on the Mortgage Loans through
the related Due Period and (2) 30 days' accrued interest thereon computed at a
rate equal to the related Mortgage Interest Rate, in each case net of the
Servicing Fee, (iii) any Reimbursements, Amounts or Premium Amounts due to the
Certificate Insurer under this Agreement and any I&I Payments and (iv) any
Trustee Fees or other amounts due to the Trustee hereunder (the "Termination
Price"); provided that in no event will the Termination Price be less than the
sum of the Class A-1 Certificate Principal Balance plus all accrued and unpaid
interest on the Class A-1 and Class A-IO Certificates plus all accrued and
unpaid Premium Amounts, Reimbursement Amounts and all amounts due the Trustee
hereunder plus all unreimbursed Periodic Advances and Servicing Advances. In the
absence of the exercise of any such purchase option by the Class X
Certificateholder, the Servicer shall have the option to exercise the same
purchase rights. Any such purchase shall be accomplished by deposit into the
Certificate Account of the Termination Price. No such termination is permitted
without the prior written consent of the Certificate Insurer if it would result
in a draw on the Certificate Insurance Policy.
(c) If on any Distribution Date, the Servicer determines that
there are no outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than funds in the Certificate Account, the Servicer shall send
a final distribution notice promptly to each such Certificateholder and any
Certificate Insurer in accordance with paragraph (d) below.
(d) Notice of any termination, specifying the Distribution
Date upon which the Trust Fund will terminate and the Certificateholders shall
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Servicer by letter
to Certificateholders and the Certificate Insurer mailed during the month of
such final distribution before the Servicer Distribution Date in such month,
specifying (i) the Distribution Date upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office of the Trustee therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates at the office of the Trustee therein specified. The Servicer
shall give such notice to the Trustee therein specified. The Servicer shall give
such notice to the Trustee at the time such notice is given to
Certificateholders. The obligations of the Certificate Insurer hereunder shall
terminate upon the deposit by the Servicer with the Trustee of a sum sufficient
to purchase all of the Mortgage Loans and REO Properties as set forth above or
when the Class A-1 Certificate Principal Balance has been reduced to zero.
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(e) In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the time
specified in the above-mentioned written notice, the Servicer 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 six months after the second notice, all of the Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates and
the cost thereof shall be paid out of the funds and other assets which remain
subject hereto. If within nine months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Class R
Certificateholders 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 only to the Class R Certificateholders for payment and not to the
Certificate Insurer or the Trustee. Such funds shall remain uninvested.
Section 8.02 Additional Termination Requirements. (a) In the
event that the Servicer exercises its purchase option as provided in Section
8.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee and the Certificate Insurer have
been furnished with an Opinion of Counsel to the effect that the failure of the
Trust Fund to comply with the requirements of this Section 8.02 will not (i)
result in the imposition of taxes on "prohibited transactions" of any REMIC
created hereunder as defined in Section 860F of the Code or (ii) cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that any Class A-1
Certificates or Class A-IO Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date the
Servicer shall adopt and the Trustee shall sign, a plan of complete
liquidation of each REMIC created hereunder 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 REMIC I to the Servicer
for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited (A) to the Class A-1 Certificateholders the
Class A-1 Principal Balance, plus one month's interest thereon at the
Class A-1 Pass-Through Rate, (B) to the Certificate Insurer any amounts
due the Certificate Insurer under this Agreement or the Insurance and
Reimbursement Agreement and unpaid, including all Reimbursement Amounts
and (C) to the Class R Certificateholders, all cash on hand after such
payment to the Class A-1 Certificateholders (other than cash retained
to meet claims) and the Trust Fund shall terminate at such time;
provided, however that any such payment will be made after all
outstanding fees, costs and expenses of the Trustee have been paid in
full.
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(b) By their acceptance of the Certificates, the Holders
thereof hereby agree to appoint the Servicer 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
or upon the written request of the Certificate Insurer 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.
Section 8.03 Accounting Upon Termination of Servicer. Upon
termination of the Servicer, the Servicer shall, at its expense:
(a) deliver to its successor or, if none shall yet have been
appointed, to the Trustee, the funds in any Account;
(b) deliver to its successor or, if none shall yet have been
appointed, to the Trustee all Mortgage Files and related documents and
statements held by it hereunder and a Mortgage Loan portfolio computer tape;
(c) deliver to its successor or, if none shall yet have been
appointed, to the Trustee and, upon request, to the Certificateholders a full
accounting of all funds, including a statement showing the Monthly Payments
collected by it and a statement of monies held in trust by it for the payments
or charges with respect to the Mortgage Loans; and
(d) execute and deliver such instruments and perform all acts
reasonably requested in order to effect the orderly and efficient transfer of
servicing of the Mortgage Loans to its successor and to more fully and
definitively vest in such successor all rights, powers, duties,
responsibilities, obligations and liabilities of the "Servicer" under this
Agreement.
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee. (a) The Trustee, prior to the
occurrence of an Event of Default of which a Responsible Officer of the Trustee
shall have actual knowledge and after the curing of all Events of Default which
may have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge has occurred and
has not been cured or waived, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform on their face to the requirements of this
Agreement; provided, however, that the Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Servicer or the
Unaffiliated Seller hereunder. If any such instrument is found not to conform on
its face to the requirements of this Agreement, the Trustee will, at the expense
of the Servicer notify the Certificate Insurer of such instrument in the event
the Trustee, after so requesting, does not receive a satisfactorily corrected
instrument.
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(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge, and
after the curing of all such Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, 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 or other
officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with this Agreement or at the direction of the
Certificate Insurer or with the consent of the Certificate Insurer, the
Majority Certificateholders, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement;
(iv) the Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default or Event of Default
(except an Event of Default with respect to the nonpayment of any
amount described in Section 7.01(a)), unless a Responsible Officer of
the Trustee shall have received written notice thereof. In the absence
of receipt of such notice, the Trustee may conclusively assume that
there is no default or Event of Default;
(v) the Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability for the performance of
any of its duties hereunder or 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; and
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(vi) subject to the other provisions of this Agreement (and
except in its capacity as successor Servicer) and without limiting the
generality of this Section, 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, the
Trust Fund, the Certificateholders or the Mortgage Loans, (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.
(d) It is intended that the Trust Fund formed hereunder shall
constitute, and that the affairs of the REMIC Trust shall be conducted so as to
qualify it as three separate REMICs as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Unaffiliated Seller, as
Class R Certificateholder, covenants and agrees that it shall act as agent (and
the Unaffiliated Seller, as Class R Certificateholder, is hereby appointed to
act as agent) and as Tax Matters Person on behalf of each REMIC created
hereunder, and that in such capacities it shall:
(i) prepare, sign and file, or cause to be prepared and filed,
in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
Income Tax Return (Form 1066) and any other Tax Return required to be
filed by each REMIC created hereunder, using a calendar year as the
taxable year for each REMIC created hereunder;
(ii) make, or cause to be made, an election, on behalf of each
REMIC created hereunder, to be treated as a REMIC on the federal tax
return of each REMIC created hereunder for its first taxable year;
(iii) prepare and forward, or cause to be prepared and
forwarded, to the Trustee, the Certificateholders and to the Internal
Revenue Service and any other relevant governmental taxing authority
all information returns or reports as and when required to be provided
to them in accordance with the REMIC Provisions;
(iv) to the extent that the affairs of the Trust Fund are
within its control, conduct such affairs of the Trust Fund at all times
that any Certificates are outstanding so as to maintain the status of
each REMIC created hereunder as a REMIC under the REMIC Provisions and
any other applicable federal, state and local laws, including, without
limitation, information reports relating to "original issue discount,"
as defined in the Code, based upon the Prepayment Assumption and
calculated by using the issue price of the Certificates;
(v) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the REMIC status of
any REMIC created hereunder;
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(vi) pay the amount of any and all federal, state, and local
taxes, including, without limitation, upon the Trustee or the
Certificateholders in connection with the Trust, the Trust Fund or the
Mortgage Loans, prohibited transaction taxes as defined in Section 860F
of the Code, other than any amount due as a result of a transfer or
attempted or purported transfer in violation of Section 4.02, imposed
on any REMIC created hereunder when and as the same shall be due and
payable (but such obligation shall not prevent the Unaffiliated Seller
or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Unaffiliated Seller
from withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings).
(vii) ensure that any such returns or reports filed on behalf
of any REMIC created hereunder by the Trustee are properly executed by
the appropriate person and submitted in a timely manner;
(viii) represent any REMIC created hereunder in any
administrative or judicial proceedings relating to an examination or
audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of any REMIC created hereunder ,
enter into settlement agreements with any governmental taxing agency,
extend any statute of limitations relating to any item of any REMIC
created hereunder and otherwise act on behalf of each REMIC created
hereunder in relation to any tax matter involving any REMIC created
hereunder ;
(ix) as provided in Section 5.11 hereof, make available
information necessary for the computation of any tax imposed (1) on
transferors of residual interests to transferees that are not Permitted
Transferees or (2) on pass-through entities, any interest in which is
held by an entity which is not a Permitted Transferee. The Trustee
covenants and agrees that it will cooperate with the Servicer in the
foregoing matters and that it will sign, as Trustee, any and all Tax
Returns required to be filed by each REMIC created hereunder .
Notwithstanding the foregoing, at such time as the Trustee becomes the
successor Servicer, the holder of the largest percentage of the Class R
Certificates shall serve as Tax Matters Person until such time as an
entity is appointed to succeed the Trustee as Servicer;
(x) make available to the Internal Revenue Service and those
Persons specified by the REMIC Provisions all information necessary to
compute any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Class R Certificate to any Person who is not a Permitted
Transferee, including the information described in Treasury regulations
sections 1.860D-1(b)(5) and 1.860E-2(a)(5)with respect to the "excess
inclusions" of such Class R Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a Class R
Certificate having as among its record holders at any time any Person
that is not a Permitted Transferee. Reasonable compensation for
providing such information may be accepted by the Trustee;
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(xi) pay out of its own funds, without any right of
reimbursement, any and all tax related expenses of each REMIC created
hereunder (including, but not limited to, tax return preparation and
filing expenses and any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to each
REMIC created hereunder that involve the Internal Revenue Service or
state tax authorities), other than the expense of obtaining any Opinion
of Counsel required pursuant to Sections 3.03, 5.10 and 8.02 and other
than taxes except as specified herein;
(xii) upon filing with the Internal Revenue Service, the
Trustee shall furnish to the Holders of the Class R Certificates the
Form 1066 and each Form 1066Q and shall respond promptly to written
requests made not more frequently than quarterly by any Holder of Class
R Certificates with respect to the following matters:
(A) the original projected principal and interest cash flows
on the Closing Date on the regular and residual
interests created hereunder and on the Mortgage Loans,
based on the Prepayment Assumption;
(B) the projected remaining principal and interest cash
flows as of the end of any calendar quarter with respect
to the regular and residual interests created hereunder
and the Mortgage Loans, based on the Prepayment
Assumption;
(C) the Prepayment Assumption and any interest rate
assumptions used in determining the projected principal
and interest cash flows described above;
(D) the original issue discount (or, in the case of the
Mortgage Loans, market discount) or premium accrued or
amortized through the end of such calendar quarter with
respect to the regular or residual interests created
hereunder and with respect to the Mortgage Loans,
together with each constant yield to maturity used in
computing the same;
(E) the treatment of losses realized with respect to the
Mortgage Loans or the regular interests created
hereunder, including the timing and amount of any
cancellation of indebtedness income of any REMIC created
hereunder with respect to such regular interests or bad
debt deductions claimed with respect to the Mortgage
Loans;
(F) the amount and timing of any non-interest expenses of
any REMIC created hereunder; and
(G) any taxes (including penalties and interest) imposed on
any REMIC created hereunder, including, without
limitation, taxes on "prohibited transactions,"
"contributions" or "net income from foreclosure
property" or state or local income or franchise taxes;
and
(xiii) make any other required reports in respect of interest
payments in respect of the Mortgage Loans and acquisitions and
abandonments of Mortgaged Property to the Internal Revenue Service
and/or the borrowers, as applicable.
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(e) In the event that any tax is imposed on "prohibited
transactions" of any REMIC created hereunder as defined in Section 860F(a)(2) of
the Code, on the "net income from foreclosure property" of any REMIC created
hereunder as defined in Section 860G(c) of the Code, on any contribution to any
REMIC created hereunder after the Startup Day pursuant to Section 860G(d) of the
Code, or any other tax is imposed, such tax shall be paid by (i) the Trustee, if
such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement, (ii) the Servicer, if such tax arises out of
or results from a breach by the Servicer of any of its obligations under this
Agreement, or otherwise (iii) the holders of the Class R Certificates in
proportion to their Percentage Interests. To the extent such tax is chargeable
against the holders of the Class R Certificates, notwithstanding anything to the
contrary contained herein, the Trustee is hereby authorized to retain from
amounts otherwise distributable to the Holders of the Class R Certificates on
any Distribution Date sufficient funds to for the payment of such tax.
Section 9.02 Certain Matters Affecting the Trustee. (a) Except
as otherwise provided in Section 9.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
Opinion of Counsel, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such opinion of counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend by litigation hereunder or in relation hereto at the
request, order or direction of the Certificate Insurer or any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders or the Certificate Insurer, as
applicable, shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein by the Trustee or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default of which a Responsible Officer of the
Trustee shall have actual knowledge (which has not been cured), to
exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
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(v) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in
writing to do so by the Certificate Insurer or the Majority
Certificateholders; 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 satisfactory to the Trustee against
such cost, expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid
by the Servicer or, if paid by the Trustee, shall be repaid by the
Servicer upon demand from the Servicer's own funds;
(vi) 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;
(vii) the Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust created hereby or the
powers granted hereunder; and
(viii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys or custodians and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed by the Trustee with due care.
(b) Following the Startup Day, the Trustee shall not knowingly
accept any contribution of assets to the Trust Fund, unless the Trustee and the
Certificate Insurer shall have received an Opinion of Counsel (at the expense of
the Servicer) to the effect that the inclusion of such assets in the Trust Fund
will not cause any REMIC created hereunder to fail to qualify as a REMIC at any
time that any Certificates are outstanding or subject any REMIC created
hereunder to any tax under the REMIC Provisions or other applicable provisions
of federal, state and local law or ordinances. The Trustee agrees to indemnify
the Trust Fund and the Servicer for any taxes and costs, including any
attorney's fees, imposed or incurred by the Trust Fund or the Servicer as a
result of the breach of the Trustee's covenants set forth within this subsection
(b).
Section 9.03 Trustee Not Liable for Certificates or Mortgage
Loans. The recitals contained herein or in the Certificates (other than the
certificate of authentication on the Certificates) shall be taken as the
statements of the Unaffiliated Seller or the Servicer as the case may be, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or of any
Mortgage Loan or related document. The Trustee shall not be accountable for the
use or application by the Depositor of any of the Certificates or the proceeds
of the Certificates, or for the use or application of any funds paid to the
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Collection Account by the Servicer. The Trustee shall not be responsible for the
legality or validity of the Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be issued
hereunder. 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 or to record this Agreement.
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Section 9.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgor of Certificates
with the same rights it would have if it were not Trustee, and may otherwise
deal with the parties hereto.
Section 9.05 Trustee's Fees and Expenses; Indemnity. (a) The
Trustee acknowledges that in consideration of the services rendered by the
Trustee in the execution of the trust hereby created and in the exercise and
performance of any of the powers and duties hereunder it is entitled to receive
the Trustee's Fee in accordance with the provision of Section 6.05(a) (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of any express trust). Additionally, the Trustee hereby covenants, for
the benefit of the Depositor and the Certificate Insurer, that the Trustee has
arranged separately with the Servicer for the payment or reimbursement to the
Trustee of all of the Trustee's expenses in connection with this Agreement,
including, without limitation, and all reasonable out of pocket expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ). Notwithstanding any other provision of this Agreement
to the contrary, the Servicer covenants and agrees 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 Certificates
or incurred in connection with the administration of the Trust, 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.
For the avoidance of doubt, the parties hereto acknowledge that it is the intent
of the parties that the Depositor and the Certificate Insurer shall not pay any
of the Trustee's fees and expenses in connection with this transaction.
(b) The Trust Fund, the Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified by the Servicer and held
harmless against any loss, liability, claim, damage or expense arising out of,
or imposed upon the Trust or the Trustee through the Servicer's acts or
omissions in violation of this Agreement, 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. The Servicer
shall immediately notify the Trustee, the Servicer, the Depositor, the
Certificate Insurer and all Certificateholders if a claim is made by a third
party with respect to this Agreement, and the Servicer shall assume (with the
consent of the Certificate Insurer) the defense of any such claim and advance
all expenses in connection therewith, including reasonable counsel fees, and
promptly advance funds to pay, discharge and satisfy any judgment or decree
which may be entered against the Servicer, the Depositor, the Trustee, the
Certificate Insurer and/or any Certificateholder in respect of such claim. The
obligations of the Servicer under this Section 9.05 arising prior to any
resignation or termination of the Servicer hereunder shall survive the
resignation or removal of the Trustee, termination of the Servicer and payment
of the Certificates, and shall extend to any co-trustee or separate trustee
appointed pursuant to this Article IX. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Trustee be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
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Section 9.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a banking entity (a) organized and doing
business under the laws of any state or the United States of America subject to
supervision or examination by federal or state authority, (b) authorized under
such laws to exercise corporate trust powers, including taking title to the
Trust Fund assets on behalf of the Certificateholders, (c) be a wholly owned
subsidiary of a bank holding company having a combined capital and surplus of at
least $50,000,000, (d) whose long-term deposits, if any, shall be rated at least
BBB- by S&P and Baa3 by ▇▇▇▇▇'▇ (except as provided herein) or such lower
long-term deposit rating as may be approved in writing by the Certificate
Insurer, and (e) reasonably acceptable to the Certificate Insurer as evidenced
in writing. If such banking 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 determining an entity's combined
capital and surplus for clause (c) of this Section, the amount set forth in its
most recent report of condition so published shall be deemed to be its combined
capital and surplus. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 9.07.
Section 9.07 Resignation and Removal of the Trustee. (a) The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Servicer, the Certificate Insurer and
the Depositor. Upon receiving such notice of resignation, the Certificate
Insurer may promptly appoint a successor trustee by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee and to
the successor trustee. A copy of such instrument shall be delivered to the
Depositor, the Certificateholders, the Certificate Insurer and the Unaffiliated
Seller by the Servicer. Unless a successor trustee shall have been so appointed
and shall have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.06 and shall fail to resign after
written request therefor by the Servicer or the Certificate Insurer, or if at
any time the Trustee shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or the Trustee shall breach any of its obligations hereunder in any
material respect then the Servicer (with the consent of the Certificate Insurer)
or the Certificate Insurer may remove the Trustee and the Servicer shall, at the
direction of the Certificate Insurer, and the Certificate Insurer may, within
thirty (30) days after such removal, appoint, a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the Depositor, the Certificateholders, the Certificate Insurer and
the Unaffiliated Seller by the Servicer.
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(c) If the Trustee fails to perform in accordance with the
terms of this Agreement, the Majority Certificateholders (with the consent of
the Certificate Insurer) or the Certificate Insurer may remove the Trustee and
appoint a successor trustee by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Servicer, one complete set to
the Trustee and the Certificate Insurer so removed and one complete set to the
successor Trustee so appointed.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 9.08.
Section 9.08 Successor Trustee. Any successor trustee
appointed as provided in Section 9.07 shall execute, acknowledge and deliver to
the Depositor, the Certificate Insurer, the Unaffiliated 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 the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder, and the Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor trustee all
such rights, powers, duties and obligations. No successor trustee shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor trustee shall be eligible under the provisions of Section 9.06.
Upon acceptance of appointment by a successor trustee as provided in this
Section, the Servicer shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register and to the Rating Agencies. If the Servicer fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Servicer.
Section 9.09 Merger or Consolidation of Trustee. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation or national banking association resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation or national banking association succeeding to the business of
the trustee, shall be the successor of the Trustee hereunder, provided such
corporation or national banking association shall be eligible under the
provisions of Section 9.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 9.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
9.10 and the consent of the Certificate Insurer, such powers, duties,
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obligations, rights and trusts as the Servicer and the Trustee may consider
necessary or desirable. If the Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an Event of Default shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 9.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 9.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 9.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (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 Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee or co-trustee at the direction of the
Trustee.
(c) 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 IX. 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.
(d) 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. The Trustee shall not
be responsible for any action or inaction of any such separate trustee or
co-trustee, provided that the Trustee appointed such separate trustee or
co-trustee with due care. 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 9.11 Tax Returns. The Servicer, upon request, will
promptly furnish the Trustee with all such information as may be reasonably
required in connection with the Trustee's preparation of all Tax Returns of the
Trust Fund or for the purpose of the Trustee responding to reasonable requests
for information made by Certificateholders in connection with tax matters and,
upon request within five (5) Business Days after its receipt thereof, the
Servicer shall (a) sign on behalf of the Trust Fund any Tax Return that the
Servicer is required to sign pursuant to applicable federal, state or local tax
laws, and (b) cause such Tax Return to be returned to the Trustee for filing and
for distribution to Certificateholders if required.
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Section 9.12 Retirement of Certificates. The Trustee shall,
upon the retirement of the Certificates pursuant hereto or otherwise, furnish to
the Certificate Insurer a notice of such retirement, and, upon retirement of the
Certificates and the expiration of the term of the Certificate Insurance Policy,
shall surrender the Certificate Insurance Policy to the Certificate Insurer for
cancellation.
Section 9.13 Trustee May Enforce Claims Without Possession of
Certificates. 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, any such proceeding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Certificateholders in respect of which such
judgment has been recovered.
Section 9.14 Suits for Enforcement. In case an Event of
Default or other default by the Servicer hereunder shall occur and be
continuing, the Trustee, in its discretion, but subject to Section 9.01 and
Section 7.01, as applicable, 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, shall deem most effectual to protect and enforce any of the rights of
the Trustee or the Certificateholders.
ARTICLE X
THE COLLATERAL AGENT
Section 10.01 Duties of the Collateral Agent. (a) The
Collateral Agent, prior to the occurrence of an Event of Default of which a
Responsible Officer shall have actual knowledge and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement. If an Event of
Default of which a Responsible Officer shall have actual knowledge has occurred
and has not been cured or waived, the Collateral Agent shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree of
care and skill in its exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
(b) The Collateral Agent, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Collateral Agent which are specifically required to
be furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform on their face to the requirements of this
Agreement; provided, however, that the Collateral Agent shall not be responsible
for the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by any Person hereunder.
If any such instrument is found not to conform on its face to the requirements
of this Agreement, the Collateral Agent shall note it as such on the Initial
Certification or Final Certification delivered pursuant to Section 2.06(b).
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(c) No provision of this Agreement shall be construed to
relieve the Collateral Agent from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided, however,
that:
(i) prior to the occurrence of an Event of Default of which a
Responsible Officer shall have actual knowledge , and after the curing
of all such Events of Default which may have occurred, the duties and
obligations of the Collateral Agent shall be determined solely by the
express provisions of this Agreement, the Collateral Agent 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 Collateral
Agent and, in the absence of bad faith on the part of the Collateral
Agent, the Collateral Agent 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 Collateral Agent and
conforming to the requirements of this Agreement;
(ii) the Collateral Agent shall not be personally liable for
an error of judgment made in good faith by a Responsible Officer or
other officers of the Collateral Agent, unless it shall be proved that
the Collateral Agent was negligent in ascertaining the pertinent facts;
(iii) the Collateral Agent 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 this Agreement or at the direction of the
Certificate Insurer or the Truseee or with the consent of the
Certificate Insurer or the Truseee;
(iv) the Collateral Agent shall not be required to expend or
risk its own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or 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 Collateral
Agent to perform, or be responsible for the manner of performance of,
any of the obligations of the Servicer or the Truseee under this
Agreement; and
(v) subject to the other provisions of this Agreement and
without limiting the generality of this Section 10.01, the Collateral
Agent 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, the Trust Fund, the
Certificateholders or the Mortgage Loans, (D) to confirm or verify the
contents of any reports or certificates of any Person delivered to the
Collateral Agent pursuant to this Agreement believed by the Collateral
Agent to be genuine and to have been signed or presented by the proper
party or parties.
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Section 10.02 Certain Matters Affecting the Collateral Agent.
Except as otherwise provided in Section 10.01 hereof:
(a) the Collateral Agent may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
Opinion of Counsel, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) the Collateral Agent may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(c) the Collateral Agent shall be under no obligation to
exercise any of the powers vested in it by this Agreement or to institute,
conduct or defend by litigation hereunder or in relation hereto at the request,
order or direction of the Certificate Insurer or any of the Certificateholders,
pursuant to the provisions of this Agreement, unless such Certificateholders or
the Certificate Insurer, as applicable, shall have offered to the Truseee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein by the Collateral Agent or thereby; nothing
contained herein shall, however, relieve the Collateral Agent of the obligation,
upon the occurrence of an Event of Default of which a Responsible Officer shall
have actual Knowledge (which has not been cured), to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of care
and skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(d) the Collateral Agent 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) the Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to do so
by the Certificate Insurer or the majority of Certificate Holders; provided,
however, that if the payment within a reasonable time to the Collateral Agent of
the costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Collateral Agent, not reasonably
assured to the Collateral Agent by the security afforded to it by the terms of
this Agreement, the Collateral Agent may require reasonable indemnity
satisfactory to the Collateral Agent against such cost, expense or liability as
a condition to taking any such action. The reasonable expense of every such
examination shall be paid by the Servicer or, if paid by the Collateral Agent,
shall be repaid by the Servicer upon demand from the Servicer's own funds;
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(f) the right of the Collateral Agent to perform any
discretionary act enumerated in this Agreement shall not be construed as a duty,
and the Collateral Agent shall not be answerable for anything other than its
negligence or willful misconduct in the performance of such act;
(g) the Collateral Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys.
Section 10.03 Collateral Agent Not Liable for Certificates or
Mortgage Loans. The recitals contained herein shall be taken as the statements
of the Trust and the Servicer, as the case may be, and the Collateral Agent
assumes no responsibility for their correctness. The Collateral Agent makes no
representations as to the validity or sufficiency of this Agreement or of any
Mortgage Loan or related document. The Collateral Agent shall not be accountable
for the use or application of any funds paid to the Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from the Collection Account by the
Servicer. The Collateral Agent shall not be responsible for the legality or
validity of the Agreement or the validity, priority, perfection or sufficiency
of the security for the Certificates issued or intended to be issued under this
Agreement.
Section 10.04 Collateral Agent May Own Certificates. The
Collateral Agent in its individual or any other capacity may become the owner or
pledgor of Certificates with the same rights it would have if it were not
Collateral Agent, and may otherwise deal with the parties hereto.
Section 10.05 Collateral Agent's Fees and Expenses; Indemnity.
(a) The Collateral Agent acknowledges that in consideration of the performance
of its duties hereunder it is entitled to receive its fees and expenses from the
Servicer, as separately agreed between the Servicer and the Collateral Agent.
The Depositor, the Trustee and the Certificate Insurer shall not pay any of the
Collateral Agent fees and expenses in connection with this transaction. The
Collateral Agent shall not be entitled to compensation for any expense,
disbursement or advance as may arise from its negligence or bad faith.
(b) The Collateral Agent and any director, officer, employee
or agent of the Collateral Agent shall be indemnified by first, the Trust and,
second, the Servicer and held harmless against any loss, liability, claim,
damage or reasonable expense incurred in connection with this Agreement other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence of the Collateral Agent in the performance of its duties
hereunder or by reason of the Collateral Agent's reckless disregard of
obligations and duties hereunder. The obligations of the Servicer under this
Section 10.05 arising prior to any resignation or termination of the Servicer
hereunder shall survive termination of the Servicer and payment of the
Certificates.
Section 10.06 Eligibility Requirements for Collateral Agent.
The Collateral Agent hereunder shall at all times be a banking entity (a)
organized and doing business under the laws of any state or the United States of
America subject to supervision or examination by federal or state authority, (b)
authorized under such laws to exercise corporate trust powers, including taking
title to the Trust Fund on behalf of the Truseee, for the benefit of the
Certificateholders and the Certificate Insurer, (c) be a wholly owned subsidiary
of a bank holding company having a combined capital and surplus of at least
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$50,000,000, (d) whose long-term deposits, if any, shall be rated at least BBB-
by S&P and Baa3 by ▇▇▇▇▇'▇ (except as provided herein) or such lower long-term
deposit rating as may be approved in writing by the Certificate Insurer, and (e)
reasonably acceptable to the Certificate Insurer as evidenced in writing. If
such banking 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 determining an entity's combined capital and
surplus for clause (c) of this Section 10.06, the amount set forth in its most
recent report of condition so published shall be deemed to be its combined
capital and surplus. In case at any time the Collateral Agent shall cease to be
eligible in accordance with the provisions of this Section 10.06, the Collateral
Agent shall resign immediately in the manner and with the effect specified in
Section 10.07.
Section 10.07 Resignation and Removal of the Collateral Agent.
(a) The Collateral Agent may at any time resign and be discharged from the
trusts hereby created by giving thirty (30) days' written notice thereof to the
Truseee, the Servicer, and the Certificate Insurer.
(b) If at any time the Collateral Agent shall cease to be
eligible in accordance with the provisions of Section 10.06 and shall fail to
resign after written request therefor by the Truseee, the Servicer or the
Certificate Insurer, or if at any time the Collateral Agent shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Collateral Agent or of its property shall be appointed, or any public
officer shall take charge or control of the Collateral Agent or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, then
the Truseee or the Servicer, with the consent of the Certificate Insurer, or the
Certificate Insurer may remove the Collateral Agent.
(c) If the Collateral Agent fails to perform in accordance
with the terms of this Agreement, the Truseee, the Servicer or the Majority
Certificateholders, with the consent of the Certificate Insurer, or the
Certificate Insurer may remove the Collateral Agent.
(d) Upon removal or receipt of notice of resignation of the
Collateral Agent, the Truseee shall either (i) take possession of the Truseee's
Mortgage Files and assume the duties of the Collateral Agent hereunder or (ii)
appoint a successor Collateral Agent pursuant to Section 9.08. If the Truseee
shall assume the duties of the Collateral Agent hereunder, it shall notify the
Trust, the Depositor, the Servicer and Certificate Insurer in writing.
Section 10.08 Successor Collateral Agent. Upon the resignation
or removal of the Collateral Agent, the Truseee may appoint a successor
Collateral Agent, with the written approval of the Certificate Insurer;
provided, however, that the successor Collateral Agent so appointed shall in no
event be the Unaffiliated Seller, the Depositor or the Servicer or any Person
known to a Responsible Officer of the Truseee to be an Affiliate of the
Unaffiliated Seller, the Depositor or the Servicer and shall be approved by the
Certificate Insurer. The Truseee or such custodian, as the case may be, shall
assume the duties of the Collateral Agent hereunder. Any successor Collateral
Agent appointed as provided in this Section 10.08 shall execute, acknowledge and
deliver to the Trust, the Depositor, the Certificate Insurer, the Servicer, the
Truseee and to its predecessor Collateral Agent an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Collateral Agent shall become effective and such successor
Collateral Agent, without any further act, deed or conveyance, shall become
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fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Collateral
Agent herein. The predecessor Collateral Agent shall deliver to the successor
Collateral Agent all Truseee's Mortgage Files and related documents and
statements held by it hereunder, and the Servicer and the predecessor Collateral
Agent shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor Collateral Agent all such rights, powers, duties and obligations.
The cost of any such transfer to the successor Collateral Agent shall be for the
account of the Collateral Agent in the event of the resignation of the
Collateral Agent, and shall be for the account of the Servicer in the event of
the removal of the Collateral Agent. No successor Collateral Agent shall accept
appointment as provided in this Section 10.08 unless at the time of such
acceptance such successor Collateral Agent shall be eligible under the
provisions of Section 10.06. Upon acceptance of appointment by a successor
Collateral Agent as provided in this Section 10.08, the Servicer shall mail
notice of the succession of such Collateral Agent hereunder to all
Certificateholders at their addresses as shown in the Certificate Register and
to the Rating Agencies. If the Servicer fails to mail such notice within ten
(10) days after acceptance of appointment by the successor Collateral Agent, the
successor Collateral Agent shall cause such notice to be mailed at the expense
of the Servicer.
Section 10.09 Merger or Consolidation of Collateral Agent. Any
Person into which the Collateral Agent may be merged or converted or with which
it may be consolidated or any corporation or national banking association
resulting from any merger, conversion or consolidation to which the Collateral
Agent shall be a party, or any corporation or national banking association
succeeding to the business of the Collateral Agent, shall be the successor of
the Collateral Agent hereunder; provided, that such corporation or national
banking association shall be eligible under the provisions of Section 10.06,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Limitation on Liability of the Depositor and the
Servicer. None of the Depositor, the Servicer or any of the directors, officers,
employees or agents of the Depositor the Servicer shall be under any liability
to the Trust, the Certificateholders or the Certificate Insurer for any action
taken, or for refraining from the taking of any action, in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor or the Servicer or any such Person
against any breach of warranties, representations, covenants or agreements made
herein, or against any specific liability imposed on each such party pursuant to
this Agreement or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations or duties hereunder.
The Depositor or the Servicer and any director, officer, employee or agent of
the Depositor or the Servicer may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any appropriate Person
respecting any matters arising hereunder.
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Section 11.02 Acts of Certificateholders. (a) Except as
otherwise specifically provided herein, whenever Certificateholder action,
consent or approval is required under this Agreement, such action, consent or
approval shall be deemed to have been taken or given on behalf of, and shall be
binding upon, all Certificateholders if the Majority Certificateholders or the
Certificate Insurer agrees to take such action or give such consent or approval.
(b) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(c) No Certificateholder shall have any right to vote (except
as expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of 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.
(d) Prior to the execution of any amendment to this Agreement,
the Trustee shall be entitled to receive and rely upon an Opinion of Counsel
(which shall be an expense of the Trust) stating that the execution of such
amendment is authorized and permitted by this Agreement. The Trustee may, but
shall not be obligated to, enter into any such amendment which affects the
Trustee's own rights, duties or immunities under this Agreement.
Section 11.03 Amendment. (a) This Agreement may be amended
from time to time by the Servicer, the Depositor and the Trustee by written
agreement, upon the prior written consent of the Certificate Insurer, without
notice to or consent of the Certificateholders to cure any ambiguity, to correct
or supplement any provisions herein, to comply with any changes in the Code, or
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 such action shall not, as evidenced by an
Opinion of Counsel, at the expense of the party requesting the change, delivered
to the Trustee, adversely affect in any material respect the interests of any
Certificateholder; and provided further, that no such amendment shall reduce in
any manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or change the rights or obligations
of any other party hereto without the consent of such party. The Trustee shall
give prompt written notice to the Rating Agencies of any amendment made pursuant
to this Section 11.03 or pursuant to Section 6.09 of the Unaffiliated Seller's
Agreement.
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(b) This Agreement may be amended from time to time by the
Servicer, the Depositor and the Trustee with the consent of the Certificate
Insurer, the Majority Certificateholders and the Holders of the majority of the
Percentage Interest in the Class R Certificates 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;
provided, however, that no such amendment shall be made unless the Trustee
receives an Opinion of Counsel, at the expense of the party requesting the
change, that such change will not adversely affect the status of any REMIC
created hereunder as a REMIC or cause a tax to be imposed on any REMIC created
hereunder; and provided, further, that no such amendment shall reduce in any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Class of Certificates without
the consent of the Holders of such Class of Certificates or reduce the
percentage for the Holders of which are required to consent to any such
amendment without the consent of the Holders of 100% of such Class of
Certificates affected thereby.
(c) It shall not be necessary for the consent of Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof.
Section 11.04 Recordation of Agreement. To the extent
permitted by applicable law, this Agreement, or a memorandum thereof if
permitted under applicable law, is subject to recordation in all appropriate
public offices for real property records in all of the counties or other
comparable jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Servicer at the direction of
the Majority Certificateholders or the Certificate Insurer.
Section 11.05 Duration of Agreement. This Agreement shall
continue in existence and effect until terminated as herein provided.
Section 11.06 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered to (i) in the case of the Servicer, American Business Credit, Inc.,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, (ii) in the case of the Unaffiliated
Seller, ABFS 2001-1, Inc., Balapointe Office Centre, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, (iii) in the
case of the Trustee, The Chase Manhattan Bank, Institutional Trust Services, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Structured Finance
Services, ABFS 2001-1, (iv) in the case of the Certificateholders, as set forth
in the Certificate Register, (v) in the case of ▇▇▇▇▇'▇ Investors Service, Inc.,
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Home Equity Monitoring
Group, (vi) in the case of Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Residential Mortgage Surveillance Group, (vii) in the
case of the Certificate Insurer, MBIA Insurance Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Insured Portfolio Management - Mortgage
Backed Securities, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ (in each case in which notice or
other communication to the Certificate Insurer refers to an Event of Default, a
claim on the Certificate Insurance Policy or with respect to which failure on
the part of the Certificate Insurer to respond shall be deemed to constitute
consent or acceptance, then a copy of such notice or other communication should
also be sent to the attention of the General Counsel and shall be marked to
indicate "URGENT MATERIAL ENCLOSED") and (viii) in the case of the Depositor or
the Underwriter, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ABS Capital I Inc. or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇, Esq. Any such notices shall be deemed to be effective with respect to
any party hereto upon the receipt of such notice by such party, except that
notices to the Certificateholders shall be effective upon mailing or personal
delivery.
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Section 11.07 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be
held invalid for any reason whatsoever, 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 covenants, agreements, provisions or
terms of this Agreement.
Section 11.08 No Partnership. Nothing herein contained shall
be deemed or construed to create a co-partnership or joint venture between the
parties hereto and the services of the Servicer shall be rendered as an
independent contractor and not as agent for the Certificateholders.
Section 11.09 Counterparts. This Agreement may be executed in
one or more counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to be an
original; such counterparts, together, shall constitute one and the same
agreement.
Section 11.10 Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the Servicer, the Depositor, the
Trustee and the Certificateholders and their respective successors and permitted
assigns.
Section 11.11 Headings. The headings of the various sections
of this Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
Section 11.12 The Certificate Insurer Default. Any right
conferred to the Certificate Insurer shall be suspended during any period in
which a Certificate Insurer Default exists. At such time as the Certificates are
no longer outstanding hereunder, the Certificate Insurance Policy has terminated
in accordance with its terms and no amounts owed to the Certificate Insurer
hereunder and no Reimbursement Amounts remain unpaid, the Certificate Insurer's
rights hereunder shall terminate.
Section 11.13 Third Party Beneficiary. The parties agree that
each of the Unaffiliated Seller and the Certificate Insurer is intended and
shall have all rights of a third-party beneficiary of this Agreement.
Section 11.14 [RESERVED].
Section 11.15 Appointment of Tax Matters Person. The Holders
of the Class R Certificates hereby appoint the Unaffiliated Seller to act, as
their agent, as the Tax Matters Person for each REMIC created hereunder for all
purposes of the Code. The Tax Matters Person will perform, or cause to be
performed, such duties and take, or cause to be taken, such actions as are
required to be performed or taken by the Tax Matters Person under the code. The
Holders of the Class R Certificates may hereafter appoint a different entity as
their agent, or may appoint one of the Class R Certificateholders to be the Tax
Matters Person.
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Section 11.16 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
OF THE STATE OF NEW YORK.
(b) THE SERVICER AND THE TRUSTEE HEREBY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND
EACH WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS
SET FORTH IN SECTION 10.06 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS,
POSTAGE PREPAID. THE DEPOSITOR, THE SERVICER AND THE TRUSTEE EACH HEREBY WAIVE
ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE DEPOSITOR, THE SERVICER OR THE TRUSTEE TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT ANY OF THEIR RIGHTS
TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE DEPOSITOR, THE SERVICER AND THE TRUSTEE EACH HEREBY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED
TO, OR IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE WILL BE RESOLVED
IN A BENCH TRIAL WITHOUT A JURY.
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IN WITNESS WHEREOF, the Servicer, the Trustee and the
Depositor have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ABS CAPITAL I INC.,
as Depositor
By:_____________________________
Name:
Title:
AMERICAN BUSINESS CREDIT, INC., as Servicer
By:_____________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Trustee
By:_____________________________
Name:
Title:
[Signature Page to Pooling and Servicing Agreement]
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