EXECUTION
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
---------------------------
TRUST AGREEMENT
Dated as of February 1, 2001
---------------------------
AMORTIZING RESIDENTIAL COLLATERAL TRUST
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-BC1
Table of Contents
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................................................7
Section 1.02. Calculations Respecting Mortgage Loans.....................................................30
Section 1.03. Calculations Respecting Accrued Interest...................................................30
ARTICLE II
DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans.......................30
Section 2.02. Acceptance of Trust Fund by Trustee: Review of Documentation for Trust Fund................33
Section 2.03. Representations and Warranties of the Depositor............................................35
Section 2.04. Discovery of Breach........................................................................36
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.....................................37
Section 2.06. Grant Clause...............................................................................38
Section 2.07. Purchase of Defaulted Mortgage Loans.......................................................38
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates...........................................................................39
Section 3.02. Registration...............................................................................39
Section 3.03. Transfer and Exchange of Certificates......................................................39
Section 3.04. Cancellation of Certificates...............................................................42
Section 3.05. Replacement of Certificates................................................................42
Section 3.06. Persons Deemed Owners......................................................................43
Section 3.07. Temporary Certificates.....................................................................43
Section 3.08. Appointment of Paying Agent................................................................43
Section 3.09. Book-Entry Certificates....................................................................44
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. [Reserved].................................................................................45
Section 4.02. [Reserved].................................................................................45
Section 4.03. Reports to Certificateholders..............................................................45
Section 4.04. Certificate Account........................................................................48
Section 4.05. Determination of LIBOR.....................................................................50
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally....................................................................51
Section 5.02. Distributions from the Certificate Account.................................................52
Section 5.03. Allocation of Losses.......................................................................57
Section 5.04. Advances by Trustee........................................................................57
Section 5.05. [Reserved].................................................................................57
Section 5.06. Basis Risk Reserve Fund....................................................................57
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee..........................................................................58
Section 6.02. Certain Matters Affecting the Trustee......................................................60
Section 6.03. Trustee Not Liable for Certificates........................................................61
Section 6.04. Trustee May Own Certificates...............................................................61
Section 6.05. Eligibility Requirements for Trustee.......................................................62
Section 6.06. Resignation and Removal of Trustee.........................................................62
Section 6.07. Successor Trustee..........................................................................63
Section 6.08. Merger or Consolidation of Trustee.........................................................63
Section 6.09. Appointment of Co-Trustee, Separate Trustee or Custodian...................................63
Section 6.10. Authenticating Agents......................................................................65
Section 6.11. Indemnification of Trustee.................................................................65
Section 6.12. Fees and Expenses of Trustee...............................................................66
Section 6.13. Collection of Monies.......................................................................66
Section 6.14. Trustee To Act; Appointment of Successor...................................................66
Section 6.15. Additional Remedies of Trustee Upon Event of Default.......................................68
Section 6.16. Waiver of Defaults.........................................................................68
Section 6.17. Notification to Holders....................................................................69
Section 6.18. Directions by Certificateholders and Duties of Trustee During Event of Default.............69
Section 6.19. Action Upon Certain Failures of the Servicer and Upon Event of Default.....................69
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND
Section 7.01. Purchase of Mortgage Loans; Termination of Trust Fund Upon Purchase or
Liquidation of All Mortgage Loans........................................................69
Section 7.02. Procedure Upon Termination of Trust Fund...................................................70
Section 7.03. Additional Trust Fund Termination Requirements.............................................71
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders............................................................72
Section 8.02. Access to List of Holders..................................................................72
Section 8.03. Acts of Holders of Certificates............................................................73
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 9.01. Trustee To Retain Possession of Certain Insurance Policies and Documents...................74
Section 9.02. Preparation of Tax Returns and Other Reports...............................................74
Section 9.03. Release of Mortgage Files..................................................................75
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration.......................................................................75
Section 10.02. Prohibited Transactions and Activities.....................................................77
Section 10.03. Indemnification with Respect to Certain Taxes and Loss of REMIC Status.....................77
Section 10.04. REO Property...............................................................................78
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment....................................................79
Section 11.02. Entire Agreement...........................................................................79
Section 11.03. Amendment..................................................................................79
Section 11.04. Voting Rights..............................................................................80
Section 11.05. Provision of Information...................................................................80
Section 11.06. Governing Law..............................................................................81
Section 11.07. Notices....................................................................................81
Section 11.08. Severability of Provisions.................................................................81
Section 11.09. Indulgences; No Waivers....................................................................81
Section 11.10. Headings Not To Affect Interpretation......................................................81
Section 11.11. Benefits of Agreement......................................................................81
Section 11.12. Special Notices to the Rating Agencies.....................................................82
Section 11.13. Counterparts...............................................................................82
Section 11.14. Transfer of Servicing......................................................................82
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B-1 Form of Initial Certification
Exhibit B-2 Form of Interim Certification
Exhibit B-3 Form of Final Certification
Exhibit B-4 Form of Endorsement
Exhibit C Request for Release of Documents and Receipt
Exhibit D-l Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreement (Option One Mortgage Corporation)
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional
Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Monthly Remittance Advice
Exhibit J Monthly Electronic Data Transmission
Exhibit K-1 Custodial Agreement (The Chase Manhattan Bank f/k/a
Chase Bank of Texas, National Association)
Exhibit K-2 [Reserved]
Exhibit K-3 Custodial Agreement (U.S. Bank Trust National
Association)
Exhibit L-1 [Reserved]
Exhibit L-2 [Reserved]
Exhibit M [Reserved]
Exhibits N Form of Loss Mitigation Advisory Agreement, dated as
of March 8, 2001, between The Murrayhill Company, as
Loss Mitigation Advisor, and the Servicer
Exhibit O Consulting Agreement, dated as of March 8, 2001,
between the Depositor and The Murrayhill Company
Schedule A Mortgage Loan Schedule
This TRUST AGREEMENT, dated as of February 1, 2001 (the "Agreement"),
is by and between STRUCTURED ASSET SECURITIES CORPORATION, a Delaware
corporation, as depositor (the "Depositor"), and ▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Seller, and at
the Closing Date is the owner of the Mortgage Loans and the other property
being conveyed by it to the Trustee hereunder for inclusion in the Trust Fund.
On the Closing Date, the Depositor will acquire the Certificates from the
Trustee, as consideration for its transfer to the Trust Fund of the Mortgage
Loans and the other property constituting the Trust Fund. The Depositor has
duly authorized the execution and delivery of this Agreement to provide for
the conveyance to the Trustee of the Mortgage Loans and the other property
constituting the Trust Fund. All covenants and agreements made by the
Depositor and the Trustee herein with respect to the Mortgage Loans and the
other property constituting the Trust Fund are for the benefit of the Holders
from time to time of the Certificates. The Depositor is entering into this
Agreement, and the Trustee is accepting the Trust Fund created hereby, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be
treated for federal income tax purposes as comprising three real estate
mortgage investment conduits (each a "REMIC" or, in the alternative, REMIC 1,
REMIC 2, and REMIC 3, REMIC 3 also being referred to as the "Upper Tier
REMIC"). Each Certificate, other than the Class R Certificate, represents
ownership of a regular interest in the Upper Tier REMIC for purposes of the
REMIC Provisions. In addition, each Certificate, other than the Class R
Certificate, represents an entitlement to receive payments from the Basis Risk
Reserve Fund maintained by the Trustee pursuant to Section 5.06. The Class R
Certificate represents ownership of the sole class of residual interest in
each of REMIC 1, REMIC 2, and the Upper Tier REMIC for purposes of the REMIC
Provisions. The Upper Tier REMIC shall hold as its assets the several classes
of uncertificated Lower Tier Interests in REMIC 2, other than the Class LT2-R
Interest, and each such Lower Tier Interest is hereby designated as a regular
interest in REMIC 2 for purposes of the REMIC Provisions. REMIC 2 shall hold
as its assets the several classes of uncertificated Lower Tier Interests in
REMIC 1, other than the Class LT1-R Interest, and each such Lower Tier
Interest is hereby designated as a regular interest in REMIC 1. REMIC 1 shall
hold as its assets the property of the Trust Fund other than the Lower Tier
Interests in REMIC 1 and REMIC 2 and the Basis Risk Reserve Fund. The startup
day for each REMIC created hereby for purposes of the REMIC Provisions is the
Closing Date. In addition, for purposes of the REMIC Provisions, the latest
possible maturity date for each regular interest in each REMIC created hereby
is March 25, 2033.
REMIC 1
The following table sets forth (or describes) the class designation,
interest rate, and initial principal amount for each class of REMIC 1 Lower
Tier Interests.
REMIC 1 REMIC 1
Lower Tier Lower Tier Initial Class
Class Designation Interest Rate Principal Amount
----------------- ------------- -----------------
Class LT1-A1 (1) $212,465,534.99
Class LT1-A2 (1) $ 5,384,798.00
Class LT1-R (2) (2)
-----------------
(1) The interest rate with respect to any Distribution Date (and the
related Accrual Period) for these Lower Tier Interests is a per annum
rate equal to the weighted average of the Net Mortgage Rates of the
Mortgage Loans as of the first day of the related Collection Period.
(2) The Class LT1-R Interest is the sole class of residual interest in
the REMIC 1. It does not have an interest rate or a principal
balance.
On each Distribution Date, the Trustee shall distribute the Interest
Remittance Amount to the Class LT1-A1 and Class LT1-A2 Interests at the rate
shown above.
On each Distribution Date the Trustee shall distribute the Principal
Remittance Amount first to the Class LT1-A1 Interest until its principal
balance is reduced to zero and then to the Class LT1-A2 Interest until its
principal balance is reduced to zero.
On each Distribution Date, Realized Losses shall be allocated first
to the Class LT-A1 Interest until its balance is reduced to zero and then to
the Class LT1-A2 Interest until its balance is reduced to zero.
REMIC 2
The following table sets forth (or describes) the class designation,
interest rate, and principal amount for each class of REMIC 2 Lower Tier
Interests.
REMIC 2 REMIC 2
Lower Tier Class Lower Tier Initial Class Corresponding Class
Class Designation Interest Rate Principal Amount of Certificates
------------------ -------------- ----------------- -----------------
Class LT2-D (1) $108,925,332.99 N/A
Class LT2-A (1) $102,934,000.00 Class A1
Class LT2-M1 (1) $ 3,268,000.00 Class M1
Class LT2-M2 (1) $ 2,178,500.00 Class M2
Class LT2-B (1) $ 544,500.00 Class B
Class LT-AX (2) (3) Class AX
Class LT2-R (4) (4) N/A
-----------------
(1) The interest rate with respect to any Distribution Date (and the
related Accrual Period) for these interests is a per annum rate equal
to the Net Funds Cap for such Distribution Date.
(2) For the first 40 Distribution Dates (and the related Accrual Periods),
the Class LT-AX Interest shall bear interest on its notional balance
at a per annum rate of 6.00% and shall not bear interest thereafter.
(3) The Class LT-AX Interest does not have a principal balance but has a
notional principal balance that will at all times equal the principal
balance of the Class LT1-A2 Interest.
(4) The Class LT2-R Interest is the sole class of residual interest in
the REMIC 2. It does not have an interest rate or a principal
balance.
On each Distribution Date, a portion of the interest that accrues at
the rate shown above on the Class LT2-D Interest shall be deferred and added
to the principal balance of the Class LT2-D Interest. For any Distribution
Date, the portion so deferred shall equal 50% of the increase occurring on
such Distribution Date in the Overcollateralization Amount. Interest so
deferred shall be applied to make principal payments on the other Lower Tier
Interests in REMIC 2 entitled to receive principal payments.
On each Distribution Date, from the Interest Remittance Amount, the
Trustee shall distribute at the pass through rates shown above to and among
the REMIC 2 Lower Tier Interests, interest (other than the interest that is
deferred with respect to the Class LT2-D Interest).
On each Distribution Date, the Trustee shall distribute the excess of
the Total Distribution Amount over the portion of the Interest Remittance
Amount distributed as interest under the immediately preceding paragraph among
the REMIC 2 Lower Tier Interests. The Trustee shall distribute such excess,
and shall allocate Realized Losses, among the Class LT2-A, LT2-M1, Class
LT2-M2, and Class LT2-B Interests in a manner such that, immediately following
the Distribution Date, the principal balance of each such REMIC 2 Lower Tier
Interest equals 50% of the balance of the Corresponding Class of Certificates.
The Trustee shall distribute any remaining funds, and shall allocate any
remaining Realized Losses, to Class LT2-D Interest.
REMIC 3
The following table sets forth (or describes) the class designation,
interest rate, and principal amount for each class of Upper Tier REMIC
Interests.
Upper Tier Upper Tier Initial Upper Tier Corresponding
Class Designation Interest Rate Principal Amount Certificate
----------------- ------------- ------------------ --------------
Class A1 (1) $205,868,000.00 Class A1 (5)
Class M1 (1) $ 6,536,000.00 Class M1 (5)
Class M2 (1) $ 4,357,000.00 Class M2 (5)
Class B (1) $ 1,089,000.00 Class B (5)
Class AX (2) (3) Class AX
Class X (4) $ 332.99 Class X
Class UT-R (6) (6) Class R
-----------------
(1) The Class A1, Class M1, Class M2, and Class B Interests will bear
interest during the applicable initial Accrual Period at 5.52125%,
5.82125%, 6.27125% and 7.22125%, respectively, per annum. The Class
A, Class M1, Class M2, and Class B Interests will bear interest
during each Accrual Period thereafter at a per annum rate equal to
the lesser of (i) LIBOR plus 0.250%, 0.550%, 1.000%, and 1.950%,
respectively, and (ii) the Net Funds Cap; provided, that if the
holder of the Class X Certificate does not exercise its option to
purchase the Mortgage Loans and related property pursuant to Section
7.01(b) on the Distribution Date on which it is first entitled to do
so, then with respect to such Distribution Date and each subsequent
Distribution Date the per annum rates calculated pursuant to clause
(i) above with respect to the Certificates will be LIBOR plus 0.500%,
0.825%, 1.500% and 2.925%, respectively.
(2) For the first 40 Distribution Dates (and the related Accrual
Periods), the Class AX Interest shall bear interest on its notional
balance at a per annum rate of 6.00% and shall not bear interest
thereafter.
(3) The Class AX Interest does not have a principal balance but has a
notional principal balance that will at all times equal the principal
balance of the Class LT1-A2 Interest.
(4) The Class X Interest has an initial principal balance in the amount
shown above but it will not accrue interest on such balance. It will
accrue interest on a notional principal balance. As of any
Distribution Date, the Class X Interest shall have a notional
principal balance equal to the aggregate of the principal balances of
the Class LT2-A, Class LT2-M1, Class LT2-M2, Class LT2-B,and LT2-D
Interests as of the first day of the related Accrual Period. With
respect to any Interest Accrual Period, the Class X Interest shall
bear interest at a rate equal to the excess of the Net Funds Cap for
such Accrual Period over the product of (i) 2 and (ii) the Adjusted
Lower Tier WAC for such Accrual Period. With respect to any
Distribution Date, interest that so accrues on the notional balance
of the Class X Interest shall be deferred in an amount equal to any
increase in the Overcollateralization Amount on the Distribution
Date. The deferred interest shall not itself bear interest.
(5) Each of these Certificates will represent not only the ownership of
the Corresponding Class of Upper Tier Regular Interest but also the
right to receive payments from the Basis Risk Reserve Fund in respect
of any Basis Risk Shortfalls or Unpaid Basis Risk Shortfalls. For
federal income tax purposes, the Trustee will treat a
Certificateholder's right to receive payments from the Basis Risk
Reserve Fund as payments made pursuant to an interest rate cap
contract written by the Class X Certificateholder.
The Class UT-R Interest is the sole class of residual interest in the
Upper Tier REMIC. The Class UT-R Interest does not have an interest rate.
The following table specifies the Class designation, initial Class
Principal Amount, Certificate Interest Rate and minimum denomination (by
dollar amount or Percentage Interest) for each Class of Certificates
representing the interests in the Trust Fund created hereunder.
Initial Class Certificate
Class Designation Principal Amount Interest Rate Minimum Denomination
----------------- ---------------- ------------- ---------------------
Class A1 $205,868,000.00 (3) $ 25,000
Class AX (1) 6.00% $ 250,000
Class M1 $ 6,536,000.00 (4) $ 25,000
Class M2 $ 4,357,000.00 (9) $ 25,000
Class B $ 1,089,000.00 (6) $ 25,000
Class X $ 332.99 (7) 100%
Class R (2) (8) 100%
-----------------
(1) The Class AX Certificates have no Class Principal Amount. The Class
AX Certificates will accrue interest on a Class Notional Amount equal
to $5,384,798.
(2) The Class R Certificates have no Class Principal Amount.
(3) The Class A1 Certificates will bear interest during the initial
Accrual Period at 5.52125% per annum. The Class A1 Certificates will
bear interest during each Accrual Period thereafter at a per annum
rate equal to the lesser of (i) LIBOR plus 0.250% and (ii) the Net
Funds Cap; provided, that if the holder of the Class X Certificate
does not exercise its option to purchase the Mortgage Loans and
related property pursuant to Section 7.01(b) on the Distribution Date
on which it is first entitled to do so, then with respect to such
Distribution Date and each subsequent Distribution Date the per annum
rate calculated pursuant to clause (i) above with respect to the
Class A1 Certificates will be LIBOR plus 0.500%.
(4) The Class M1 Certificates will bear interest during the initial
Accrual Period at 5.82125% per annum. The Class M1 Certificates will
bear interest during each Accrual Period thereafter at a per annum
rate equal to the lesser of (i) LIBOR plus 0.550% and (ii) the Net
Funds Cap; provided, that if the holder of the Class X Certificate
does not exercise its option to purchase the Mortgage Loans and
related property pursuant to Section 7.01(b) on the Distribution Date
on which it is first entitled to do so, then with respect to such
Distribution Date and each subsequent Distribution Date the per annum
rate calculated pursuant to clause (i) above with respect to the
Class M1 Certificates will be LIBOR plus 0.825%.
(5) The Class M2 Certificates will bear interest during the initial
Accrual Period at 6.27125% per annum. The Class M2 Certificates will
bear interest during each Accrual Period thereafter at a per annum
rate equal to the lesser of (i) LIBOR plus 1.000% and (ii) the Net
Funds Cap; provided, that if the holder of the Class X Certificate
does not exercise its option to purchase the Mortgage Loans and
related property pursuant to Section 7.01(b) on the Distribution Date
on which it is first entitled to do so, then with respect to such
Distribution Date and each subsequent Distribution Date the per annum
rate calculated pursuant to clause (i) above with respect to the
Class M2 Certificates will be LIBOR plus 1.500%.
(6) The Class B Certificates will bear interest during the initial
Accrual Period at 7.22125% per annum. The Class B Certificates will
bear interest during each Accrual Period thereafter at a per annum
rate equal to the lesser of (i) LIBOR plus 1.950% and (ii) the Net
Funds Cap; provided, that if the holder of the Class X Certificate
does not exercise its option to purchase the Mortgage Loans and
related property pursuant to Section 7.01(b) on the Distribution Date
on which it is first entitled to do so, then with respect to such
Distribution Date and each subsequent Distribution Date the per annum
rate calculated pursuant to clause (i) above with respect to the
Class B Certificates will be LIBOR plus 2.925%.
(7) The Class X Certificates will not bear interest.
(8) The Class R Certificates will not bear interest.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $217,850,332.99.
In consideration of the mutual agreements herein contained, the
Depositor and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: As provided in the Servicing Agreement.
Accountant: A person engaged in the practice of accounting who
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accrual Period: With respect to any Distribution Date and any Class
of LIBOR Certificates, the one-month period beginning on the immediately
preceding Distribution Date (or on the Closing Date in the case of the first
Accrual Period) and ending on the day immediately preceding the related
Distribution Date. With respect to any Distribution Date and the Class AX
Certificates, the calendar month immediately preceding the month in which such
Distribution Date occurs.
Additional Collateral: None.
Adjustable Rate Mortgage Loan: Any Mortgage Loan as to which the
related Mortgage Note provides for the adjustment of the Mortgage Rate
applicable thereto.
Adjusted Lower Tier WAC: For any Accrual Period, the weighted average
of the interest rates on the LT2-D, LT2-A, LT2-M1, LT2-M2, and LT2-B Interests
determined for this purpose by first subjecting the rate payable on the Class
LT2-D Interest to a cap of zero, and subjecting the rate payable on each of
the Class LT2-A, Class LT2-M1, Class LT2-M2, and Class LT2-B Interests to a
cap that corresponds to the Certificate Interest Rate for the Corresponding
Class of Certificates for such Accrual Period.
Advance: An advance of the aggregate of payments of principal and
interest (net of the Servicing Fee) on one or more Mortgage Loans that were
due on the Due Date in the related Collection Period and not received as of
the close of business on the related Determination Date, required to be made
by or on behalf of the Servicer (or by the Trustee) pursuant to Section 5.04.
Advisor's Fee Rate: 0.015% per annum.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
Applied Loss Amount: With respect to any Distribution Date, the
amount, if any, by which (x) the aggregate Certificate Principal Amount of the
Certificates after giving effect to distributions on such date, exceeds (y)
the Total Loan Balance for such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the amount set
forth in an appraisal made in connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however, that
the Trustee shall not be responsible for determining whether any such
assignment is in recordable form.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's
Certificate on behalf of the Depositor.
B Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Amount of the Class A1, Class
M1 and Class M2 Certificates, in each case after giving effect to
distributions on such Distribution Date and (ii) the Class Principal Amount of
the Class B Certificates immediately prior to such Distribution Date exceeds
(y) the amount, if any, by which (i) the Total Loan Balance for such
Distribution Date exceeds (ii) 0.25% of the Cut-off Date Total Loan Balance.
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator, dissolution, or termination, as the case may
be, of such Person pursuant to the provisions of either the United States
Bankruptcy Code of 1986, as amended, or any other similar state laws.
Basis Risk Reserve Fund: A fund created as part of the Trust Fund
pursuant to Section 5.06 of this Agreement but which is not an asset of any
REMIC.
Basis Risk Shortfall: With respect to any Distribution Date and any
Class of LIBOR Certificates, the amount by which the Certificate Interest Rate
applicable to such Class for such date, determined without regard to the Net
Funds Cap for such date but subject to a cap equal to the Maximum Interest
Rate, exceeds such Net Funds Cap.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the
Trustee to the effect that any proposed transfer will not (i) cause the assets
of the Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor or the Trustee.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are
no longer permitted and Definitive Certificates are to be issued to
Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." As of the Closing Date, the following Classes of
Certificates constitute Book-Entry Certificates: the Class A1, Class AX, Class
M1, Class M2 and Class B Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a
day on which banking institutions in New York, New York or, if other than New
York, the city in which the Corporate Trust Office of the Trustee is located,
or the States of Maryland or Minnesota are closed, or (iii) with respect to
any Remittance Date or any Servicer reporting date, the States specified in
the definition of "Business Day" in the Servicing Agreement, are authorized or
obligated by law or executive order to be closed.
Carryforward Interest: With respect to any Distribution Date and each
Class of Certificates, the sum of (i) the amount, if any, by which (x) the sum
of (A) Current Interest for such Class for the immediately preceding
Distribution Date and (B) any unpaid Carryforward Interest for such Class from
previous Distribution Dates exceeds (y) the amount distributed in respect of
interest on such Class on such immediately preceding Distribution Date, and
(ii) interest on such amount for the related Accrual Period at the applicable
Certificate Interest Rate.
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in
accordance with the provisions of Section 4.04.
Certificate Interest Rate: With respect to each Class of Certificates
and any Distribution Date, the applicable per annum rate set forth or
described in the Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate (other
than the Class AX and Class R Certificates), the initial Certificate Principal
Amount thereof, less the amount of all principal distributions previously
distributed with respect to such Certificate and any Applied Loss Amount
previously allocated to such Certificate. The Class AX and Class R
Certificates are issued without Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of
"Holder."
Civil Relief Act: The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
Class: All Certificates bearing the same class designation.
Class Notional Amount: With respect to each Class of Notional
Certificates, the applicable class notional amount calculated as provided in
the Preliminary Statement hereto.
Class Principal Amount: With respect to each Class of Certificates
other than the Class AX and Class R Certificates, the aggregate of the
Certificate Principal Amounts of all Certificates of such Class at the date of
determination. With respect to the Class AX and Class R Certificates, zero.
Class R Certificate: The Class R Certificate executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially in
the form annexed hereto as Exhibit A and evidencing the ownership of the Class
LT1-R Interest, Class LT2-R Interest and the residual interest in the Upper
Tier REMIC.
Class X Distributable Amount: On any Distribution Date, the amount of
interest that has accrued on the notional component of the Class X
Certificate, as described in the Preliminary Statement, but that has not been
distributed prior to such date. In addition, such amount shall include the
initial Overcollateralization Amount of $332.99 to the extent such amount has
not been distributed on an earlier Distribution Date as part of the
Overcollateralization Release Amount.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: March 8, 2001.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Period: With respect to any Distribution Date, the period
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
Conventional Loan: A Mortgage Loan that is not insured by the United
States Federal Housing Administration or guaranteed by the United States
Department of Veterans Affairs.
Conventional Loan Documents: None.
Cooperative Shares: None.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Services (ARC 2001-BC1); provided that its administrative services office is
located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Department.
Corresponding Class: The Class of Certificates that corresponds to a
class of REMIC 2 Lower Tier Interests or Upper Tier REMIC Interests as
described in the Preliminary Statement.
Current Interest: With respect to each Class of Certificates and any
Distribution Date, the aggregate amount of interest accrued at the applicable
Certificate Interest Rate during the related Accrual Period on the Class
Principal Amount (or Class Notional Amount) of such Class immediately prior to
such Distribution Date.
Custodial Agreement: Each custodial agreement attached as Exhibit K
hereto, and any custodial agreement subsequently executed by the Trustee and
acknowledged by the Servicer substantially in the form thereof.
Custodian: Each custodian appointed by the Trustee pursuant to a
Custodial Agreement, and any successor thereto. The initial Custodians are The
Chase Manhattan Bank, f/k/a, Chase Bank of Texas, National Association; and
U.S. Bank Trust, National Association.
Cut-off Date: February 1, 2001.
Cut-off Date Total Loan Balance: With respect to the Mortgage Loans
in the Trust Fund on the Closing Date, the Total Loan Balance as of the
Cut-off Date.
Deferred Amount: With respect to any Distribution Date and each
Certificate, the aggregate of Applied Loss Amounts previously applied in
reduction of the Certificate Principal Amount thereof, less any amounts
previously reimbursed in respect thereof.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Delinquency Rate: With respect to any calendar month, the fraction,
expressed as a percentage, the numerator of which is the aggregate outstanding
principal balance of all Mortgage Loans 60 or more days delinquent (including
all foreclosures and REO Properties) as of the close of business on the last
day of such month, and the denominator of which is the Total Loan Balance as
of the close of business on the last day of such month.
Deposit Date: With respect to each Distribution Date, the Business
Day immediately preceding such Distribution Date.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Determination Date: With respect to each Distribution Date, the 18th
day of the month in which such Distribution Date occurs, or, if such 18th day
is not a Business Day, the next succeeding Business Day.
Directing Holder: The holder of the Class X Certificate.
Disqualified Organization: Either (i) the United States, (ii) any
state or political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative
described in section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code unless such organization is subject to the tax imposed
by section 511 of the Code, (vii) any organization described in section
1381(a)(2)(C) of the Code, or (viii) any "electing large partnership"
described in section 775 of the Code, or (ix) any other entity designated as a
Disqualified Organization by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of the
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by such governmental unit.
Distribution Date: The 25th day of each month or, if such 25th day is
not a Business Day, the next succeeding Business Day, commencing in March
2001.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable
to the Rating Agencies or (ii) an account or accounts the deposits in which
are insured by the FDIC to the limits established by such corporation,
provided that any such deposits not so insured shall be maintained in an
account at a depository institution or trust company whose commercial paper or
other short term debt obligations (or, in the case of a depository institution
or trust company which is the principal subsidiary of a holding company, the
commercial paper or other short term debt or deposit obligations of such
holding company or depository institution, as the case may be) have been rated
by each Rating Agency in its highest short-term rating category, or (iii) a
segregated trust account or accounts (which shall be a "special deposit
account") maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity, in
a manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts
may bear interest.
Eligible Investments: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries
of foreign depositories and the Trustee or any agent of the Trustee,
acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
or state banking authorities, so long as at the time of investment
or the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, FNMA or FHLMC with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC,
if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States
of America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of
the two highest long-term credit rating categories of each Rating
Agency; provided, however, that securities issued by any particular
corporation will not be Eligible Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the
Trust Fund to exceed 20% of the sum of the Total Loan Balance and
the aggregate principal amount of all Eligible Investments in the
Certificate Account; provided, further, that such securities will
not be Eligible Investments if they are published as being under
review with negative implications from either Rating Agency;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 180 days after the date
of issuance thereof) rated by each Rating Agency in its highest
short-term rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on
behalf of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or
time deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current
rating by either Rating Agency of any of the Certificates. Such
investments in this subsection (viii) may include money market
mutual funds or common trust funds, including any fund for which
▇▇▇▇▇ Fargo Bank Minnesota, National Association (the "Bank"), the
Trustee or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (x) the Bank or an affiliate
thereof charges and collects fees and expenses from such funds for
services rendered, (y) the Bank or an affiliate thereof charges and
collects fees and expenses for services rendered pursuant to this
Agreement, and (z) services performed for such funds and pursuant to
this Agreement may converge at any time. The Trustee specifically
authorizes the Bank or an affiliate thereof to charge and collect
from the Trustee such fees as are collected from all investors in
such funds for services rendered to such funds (but not to exceed
investment earnings thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: Any Class X Certificate and any
Certificate with a rating below the lowest applicable rating permitted under
the Underwriter's Exemption.
Errors and Omission Insurance Policy: The errors or omission
insurance policy required to be obtained by the Servicer satisfying the
requirements of Section 3.08 of the Servicing Agreement.
Escrow Account: Any account established and maintained by the
Servicer pursuant to the Servicing Agreement.
Event of Default: An event described in Section 8.01 of the Servicing
Agreement, which pursuant to such agreement may result in termination for
cause and entitles the Trustee to terminate such Servicer.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fidelity Bond: The fidelity bond required to be obtained by the
Servicer satisfying the requirements of Section 3.08 of the Servicing
Agreement.
Final Scheduled Distribution Date: With respect to the Certificates
other than the Interest-Only Certificates, December 25, 2030; with respect to
the Class AX Certificates, June 25, 2004.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fixed Rate Mortgage Loans: Any Mortgage Loan as to which the related
Mortgage Note provides for a fixed rate of interest throughout the term of
such Note.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Holder or Certificateholder: The registered owner of any Certificate
as recorded on the books of the Certificate Registrar except that, solely for
the purposes of taking any action or giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the
Trustee, the Servicer, the Loss Mitigation Advisor, MGIC or any Affiliate
thereof shall be deemed not to be outstanding in determining whether the
requisite percentage necessary to effect any such consent has been obtained,
except that, in determining whether the Trustee shall be protected in relying
upon any such consent, only Certificates which a Responsible Officer of the
Trustee knows to be so owned shall be disregarded. The Trustee may request and
conclusively rely on certifications by the Depositor, the Servicer, the Loss
Mitigation Advisor or MGIC in determining whether any Certificates are
registered to an Affiliate of the Depositor, the Servicer, the Loss Mitigation
Advisor or MGIC.
HUD: The United States Department of Housing and Urban Development,
or any successor thereto.
IBF Mortgage Loan Sale Agreement: The mortgage loan sale and
assignment agreement, dated as of February 1, 2001, for the sale of the
Mortgage Loans by the Seller to the Depositor.
Independent: When used with respect to any Accountants, a Person who
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Index: The index specified in the related Mortgage Note for
calculation of the Mortgage Rate thereof.
Initial LIBOR Rate: 5.27125%.
Insurance Fee Rate: With respect to each MGIC-Insured Mortgage Loan,
a per annum rate equal to 0.71%, plus any taxes due and payable with respect
to any MGIC-Insured Mortgage Loan that is located in the states of Kentucky
and West Virginia; provided, that if the Loss Mitigation Advisor (or an
appropriate successor) ceases to provide its services under the Loss
Mitigation Advisory Agreement, the Insurance Fee Rate shall be 0.72%.
Insurance Policy: Any Primary Mortgage Insurance Policy (whether
obtained by the borrower, the originator or the Trust), any standard hazard
insurance policy, flood insurance policy, earthquake insurance policy or title
insurance policy relating to the Mortgage Loans or the Mortgaged Properties,
to be in effect as of the Closing Date or thereafter during the term of this
Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of
the Servicer in connection with procuring such proceeds, (ii) to be applied to
restoration or repair of the related Mortgaged Property or (iii) required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note.
Interest Remittance Amount: With respect to any Distribution Date,
(a) the sum of (1) all interest collected (other than Payaheads) or advanced
in respect of Scheduled Payments on the Mortgage Loans during the related
Collection Period, less (w) the MGIC Insurance Premiums and certain state
taxes imposed on such premiums, (x) any Prepayment Premiums received by the
Servicer during such Collection Period, (y) the Servicing Fee and (z)
previously unreimbursed Advances to the extent allocable to interest and the
allocable portion of previously unreimbursed Servicing Advances, (2) any
Prepayment Interest Shortfall Amount (as defined in the Servicing Agreement)
paid by the Servicer with respect to the related Prepayment Period, (3) the
portion of any Purchase Price or Substitution Amount paid with respect to such
Mortgage Loans during the related Prepayment Period allocable to interest, and
(4) all Net Liquidation Proceeds, Insurance Proceeds and any other recoveries
collected with respect to the Mortgage Loans during the related Prepayment
Period, to the extent allocable to interest, as reduced by (b) other costs,
expenses or liabilities reimbursable to the Trustee and the Servicer to the
extent provided in this Agreement and the Servicing Agreement.
Intervening Assignments: The original intervening assignments of the
Mortgage, notices of transfer or equivalent instrument.
Latest Possible Maturity Date: The Distribution Date occurring in
March 2033.
▇▇▇▇▇▇ Capital: ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers
Holdings Inc., or any successor in interest.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR
Rate. With respect to each subsequent Accrual Period, the per annum rate
determined pursuant to Section 4.05 on the basis of London interbank offered
rate quotations for one-month Eurodollar deposits, as such quotations may
appear on the display designated as page "LIUS01M" on the Bloomberg Financial
Markets Commodities News (or such other page as may replace such page on that
service for the purpose of displaying London interbank offered quotations of
major banks).
LIBOR Certificate: Any Class A1, Class M1, Class M2 and Class B
Certificate.
LIBOR Determination Date: The second London Business Day immediately
preceding the commencement of each Accrual Period for any LIBOR Certificates.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Servicer has determined that all amounts that it expects to recover on behalf
of the Trust Fund from or on account of such Mortgage Loan have been
recovered.
Liquidation Expenses: Expenses that are incurred by the Servicer in
connection with the liquidation of any defaulted Mortgage Loan and are not
recoverable under the applicable Primary Mortgage Insurance Policy, if any,
including, without limitation, foreclosure and rehabilitation expenses, legal
expenses and unreimbursed amounts, if any, expended pursuant to the Servicing
Agreement.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale, payment in
full, discounted payoff or otherwise, or the sale of the related Mortgaged
Property if the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan, including any amounts remaining in the related Escrow Account.
London Business Day: Any day on which banks are open for dealing in
foreign currency and exchange in London, England and New York City.
Loss Mitigation Advisor: The Murrayhill Company, a Colorado
corporation, and its successors and assigns.
Loss Mitigation Advisory Agreement: The loss mitigation and advisory
agreement, dated as of the Closing Date, entered into by the Servicer and the
Loss Mitigation Advisor.
Loss Mitigation Advisor's Fee: As to any Distribution Date and each
Mortgage Loan, an amount equal to the product of (a) one twelfth, (b) the
Advisor's Fee Rate and (c) the Scheduled Principal Balance of such Mortgage
Loan as of the first day of the related Collection Period.
Lower Tier Interest: As described in the Preliminary Statement.
M1 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Amount of the Class A1
Certificates after giving effect to distributions on such Distribution Date
and (ii) the Class Principal Amount of the Class M1 Certificates immediately
prior to such Distribution Date exceeds (y) the lesser of (A) the product of
(i) 94.50% and (ii) the Total Loan Balance for such Distribution Date and (B)
the amount, if any, by which (i) the Total Loan Balance for such Distribution
Date exceeds (ii) 0.25% of the Cut-off Date Total Loan Balance.
M2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Amount of the Class A1 and
Class M1 Certificates, in each case after giving effect to distributions on
such Distribution Date and (ii) the Class Principal Amount of the Class M2
Certificates immediately prior to such Distribution Date exceeds (y) the
lesser of (A) the product of (i) 98.50% and (ii) the Total Loan Balance for
such Distribution Date and (B) the amount, if any, by which (i) the Total Loan
Balance for such Distribution Date exceeds (ii) 0.25% of the Cut-off Date
Total Loan Balance.
Material Defect: As defined in Section 2.02(c) hereof.
Maximum Interest Rate: With respect to any Class of LIBOR
Certificates and any Distribution Date, an annual rate equal to the amount, if
any, by which (1) the weighted average of the maximum "lifetime" Mortgage
Rates specified in the related Mortgage Notes of the Adjustable Rate Mortgage
Loans and the Mortgage Rates of the Fixed Rate Mortgage Loans exceeds, (2)(I)
in the case of the first 40 Distribution Dates only, the sum of (A) the
Aggregate Expense Rate and (B) the product of (x) 6.00% and (y) a fraction,
the numerator of which is the Class Notional Amount of the Class AX
Certificates and the denominator of which is the Total Loan Balance for that
Distribution Date and (II) thereafter, zero.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related
Mortgage, or an Assignment of Mortgage, has been or will be recorded in the
name of MERS, as nominee for the holder from time to time of the Mortgage
Note.
MGIC: Mortgage Guaranty Insurance Corporation, a monoline insurance
company and its successors or assigns.
MGIC-Insured Mortgage Loan: Any Mortgage Loan included for coverage
under a MGIC Insurance Policy.
MGIC Insurance Policy: The loan-level Primary Mortgage Insurance
Policies on certain of the MGIC-Insured Mortgage Loans issued by MGIC to the
Trust, as the insured, as evidenced by the issuance of a Mortgage Guaranty
Master Policy Number 22-400-4-1291 and related endorsements.
MGIC Insurance Premium: With respect to each Distribution Date and
each MGIC-Insured Mortgage Loan, the product of (a) one-twelfth of the
Insurance Fee Rate and (b) the Scheduled Principal Balance of such Mortgage
Loan as of the first day of the related Collection Period.
Monthly Excess Cashflow: With respect to any Distribution Date, the
sum of (x) Monthly Excess Interest for such date and (y) the
Overcollateralization Release Amount for such date.
Monthly Excess Interest: With respect to any Distribution Date, the
amount of any Interest Remittance Amount remaining after application pursuant
to clauses (i) through (vi) of Section 5.02(b) on such date.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor in
interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the
Trustee pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 or Section
2.05, including without limitation, each Mortgage Loan listed on the Mortgage
Loan Schedule, as amended from time to time.
Mortgage Loan Sale Agreement: The mortgage loan sale and assignment
agreement, dated as of February 1, 2001, for the sale of the Mortgage Loans by
▇▇▇▇▇▇ Capital to the Seller.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time to reflect the addition of Mortgage Loans to, or the deletion of
Mortgage Loans from, the Trust Fund. Such schedule shall, among other things
(i) designate the Servicer servicing such Mortgage Loan; (ii) designate the
Custodian with respect to the Mortgage File related to such Mortgage Loan; and
(iii) where applicable, indicate whether such Mortgage Loan is a MGIC-Insured
Mortgage Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: The aggregate of the Adjustable Rate Mortgage Loan and
the Fixed Rate Mortgage Loans identified on the Mortgage Loan Schedule as
being included in the Mortgage Pool.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan.
Mortgaged Property: The fee simple interest in real property,
together with improvements thereto including any exterior improvements to be
completed within 120 days of disbursement of the related Mortgage Loan
proceeds.
Mortgagor: The obligor on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date, (A) the
fraction, expressed as a percentage, the numerator of which is equal to the
product of (i) the amount, if any, by which (a) the Interest Remittance Amount
for such Distribution Date (as reduced by the Trustee Fee for such
Distribution Date) exceeds (b) the Current Interest payable with respect to
the Certificates for such date and (ii) twelve, and the denominator of which
is the Total Loan Balance for such Distribution Date, multiplied by (B) a
fraction, the numerator of which is thirty and the denominator of which is the
greater of thirty and the actual number of days in the immediately preceding
calendar month.
Net Funds Cap: With respect to any Distribution Date, a per annum
rate equal to (a) a fraction, expressed as a percentage, the numerator of
which is the product of (i) the Optimal Interest Remittance Amount for such
date and (ii) 12, and the denominator of which is the Total Loan Balance for
the immediately preceding Distribution Date multiplied by (b) a fraction, the
numerator of which is 30 and the denominator of which is the greater of 30 and
the actual number of days in the immediately preceding calendar month.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds net of (i) unreimbursed expenses and
(ii) any unreimbursed Advances, if any, received and retained in connection
with the liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage
Rate thereof reduced by the sum of the Servicing Fee Rate, the Trustee Fee
Rate and the Insurance Fee Rate, in the case of a MGIC-Insured Mortgage Loan.
Net Prepayment Interest Shortfall: With respect to any Remittance
Date, the excess, if any, of any Prepayment Interest Shortfalls with respect
to the Mortgage Loans for such date over any amounts paid by the Servicers
with respect to such shortfalls.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than (i) a citizen or resident of
the United States; (ii) a corporation (or entity treated as a corporation for
tax purposes) created or organized in the United States or under the laws of
the United States or of any state thereof, including, for this purpose, the
District of Columbia; (iii) a partnership (or entity treated as a partnership
for tax purposes) organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the
District of Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in gross income for
United States income tax purposes regardless of its source; or (v) a trust, if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last
clause of the preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
U.S. Persons prior to such date, may elect to continue to be U.S. Persons.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class AX Certificate.
Offering Document: The Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee, and who may be in-house or
outside counsel to the Depositor or the Servicer but which must be Independent
outside counsel with respect to any such opinion of counsel concerning the
transfer of any Residual Certificate or concerning certain matters with
respect to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the taxation, or the federal income tax status, of each REMIC.
Optimal Interest Remittance Amount: With respect to each Distribution
Date, the amount, if any, by which (1) the product of (A)(x) the weighted
average of the Net Mortgage Rates of the Mortgage Loans as of the first day of
the related Collection Period, divided by (y) 12, and (B) the Total Loan
Balance for the immediately preceding Distribution Date exceeds (2)(I) in the
case of the first 40 Distribution Dates only, an amount equal to the product
of (A) 0.50% and (B) the lesser of (x) $5,384,798 and (y) the Total Loan
Balance for the immediately preceding Distribution Date and (II) thereafter,
zero.
Original Loan-to-Value Ratio: With respect to any Mortgage Loan, the
ratio of the principal balance of such Mortgage Loan at origination, or such
other date as is specified, to the Original Value of the related Mortgage
Property.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor
at the time the related Mortgage Loan was originated.
Overcollateralization Amount: With respect to any Distribution Date,
the amount, if any, by which (x) the Total Loan Balance for such Distribution
Date exceeds (y) the aggregate Certificate Principal Amount of the
Certificates after giving effect to distributions on such Distribution Date.
Overcollateralization Deficiency: With respect to any Distribution
Date, the amount, if any, by which (x) the Targeted Overcollateralization
Amount for such Distribution Date exceeds (y) the Overcollateralization Amount
for such Distribution Date, calculated for this purpose after giving effect to
the reduction on such Distribution Date of the Certificate Principal Amounts
of the Certificates resulting from the distribution of the Principal
Distribution Amount on such Distribution Date, but prior to allocation of any
Applied Loss Amount on such Distribution Date.
Overcollateralization Release Amount: With respect to any
Distribution Date, the lesser of (x) the Principal Remittance Amount for such
Distribution Date and (y) the amount, if any, by which (i) the
Overcollateralization Amount for such date, calculated for this purpose on the
basis of the assumption that 100% of the Principal Remittance Amount for such
date is applied on such date in reduction of the aggregate of the Certificate
Principal Amounts of the Certificates, exceeds (ii) the Targeted
Overcollateralization Amount for such date.
Payahead: With respect to any Mortgage Loan and any Due Date
therefor, any Scheduled Payment received by the Servicer during any Collection
Period in addition to the Scheduled Payment due on such Due Date, intended by
the related Mortgagor to be applied on a subsequent Due Date.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
Percentage Interest: With respect to any Certificate, its percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than the Class AX, Class X and Class R
Certificates, the Percentage Interest evidenced thereby shall equal the
initial Certificate Principal Amount thereof divided by the initial Class
Principal Amount of all Certificates of the same Class. With respect to the
Class X and Class R Certificates, the Percentage Interest evidenced thereby
shall be 100%. With respect to any Class AX Certificate, the Percentage
Interest evidenced thereby shall equal the initial Notional Amount of such
Class AX Certificate as set forth on the face thereof divided by the initial
Class Notional Amount of the Class AX Certificates.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Placement Agent: ▇▇▇▇▇▇ Brothers Inc.
Plan Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. 2510.3-101.
Pool Balance: The aggregate of the Scheduled Principal Balances of
all Mortgage Loans in the Mortgage Pool at the date of determination.
Prepayment Interest Excess: With respect to any Remittance Date and
any Principal Prepayment in full received on the Mortgage Loans made on the
first day of the month during which such Remittance Date occurs, all amounts
paid in respect of interest, to the extent in excess of one month's interest
and excluding any delinquent interest, at the applicable Net Mortgage Rate on
the amount of such Principal Prepayment (such amounts generally to equal one
day's interest thereon at the applicable Net Mortgage Rate).
Prepayment Interest Shortfall: With respect to any full or partial
Principal Prepayment of a Mortgage Loan, the excess, if any, of (i) one full
month's interest at the applicable Mortgage Rate, as reduced by the Servicing
Fee Rate, on the outstanding principal balance of such Mortgage Loan
immediately prior to such prepayment over (ii) the amount of interest actually
received with respect to such Mortgage Loan in connection with such Principal
Prepayment.
Prepayment Period: With respect to each Remittance Date, the
one-month period beginning on the Cut-off Date, in the case of the first
Distribution Date, and on the second day of the calendar month immediately
preceding the month in which the related Distribution Date occurs, in the case
of each subsequent Remittance Date, and ending on the first day of the month
in which such Remittance Date occurs.
Prepayment Premiums: Any prepayment fees and penalties to be paid by
the Mortgagor on a Mortgage Loan.
Primary Mortgage Insurance Policy: The MGIC Insurance Policy and any
other mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate, whether such policy is obtained by the
originator, the borrower or the Trust.
Principal Distribution Amount: With respect to any Distribution Date,
an amount equal to the Principal Remittance Amount for such date minus the
Overcollateralization Release Amount, if any, for such date.
Principal Prepayment: Any Mortgagor payment of principal (other than
a Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled
Due Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note or the Servicing Agreement.
Principal Remittance Amount: With respect to any Distribution Date,
(a) the sum of (i) all principal collected (other than Payaheads) or advanced
in respect of Scheduled Payments on the Mortgage Loans during the related
Collection Period (less unreimbursed Advances, to the extent allocable to
principal, and the allocable portion of unreimbursed Servicing Advances), (ii)
all Principal Prepayments in full or in part received during the related
Prepayment Period, (iii) the portion of any Purchase Price or Substitution
Amount paid with respect to each Mortgage Loan that was purchased from the
Trust Fund during the related Prepayment Period allocable to principal, and
(iv) all Net Liquidation Proceeds, Insurance Proceeds and other recoveries
(less unreimbursed Advances, to the extent allocable to principal, and the
allocable portion of unreimbursed Servicing Advances) collected with respect
to such Mortgage Loans during the related Prepayment Period, to the extent
allocable to principal, as reduced by (b) after application of the Interest
Remittance Amount, other costs, expenses or liabilities reimbursable to the
Trustee and the Servicer to the extent provided in this Agreement.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: None.
Prospectus: The prospectus supplement dated March 1, 2001, and the
supplement thereto dated March 8, 2001, together with the accompanying
prospectus dated January 26, 2001, relating to the Class A1, Class AX, Class
M1, Class M2 and Class B Certificates.
Purchase Price: With respect to the purchase of a Mortgage Loan
pursuant to this Agreement, an amount equal to the sum of (a) 100% of the
unpaid principal balance of such Mortgage Loan, (b) accrued interest thereon
at the applicable Mortgage Rate, from the date as to which interest was last
paid to (but not including) the Due Date in the Collection Period immediately
preceding the related Distribution Date and (c) the fair market value of all
other property being purchased. The Servicer (or the Trustee, if applicable)
shall be reimbursed from the Purchase Price for any Mortgage Loan or related
REO Property for any Advances made or other amounts advanced with respect to
such Mortgage Loan that are reimbursable to the Servicer under this Agreement
or the Servicing Agreement (or to the Trustee hereunder), together with any
accrued and unpaid compensation due to the Servicer or the Trustee hereunder
or thereunder.
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Certificate Account and insuring
a minimum, fixed or floating rate of return on investments of such funds,
which contract or surety bond shall:
(i) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency in
one of its two highest rating categories or, if such insurance
company has no long-term debt, whose claims paying ability is rated
by each Rating Agency in one of its two highest rating categories,
and whose short-term debt is rated by each Rating Agency in its
highest rating category;
(ii) provide that the Trustee may exercise all of the rights
under such contract or surety bond without the necessity of taking
any action by any other Person;
(iii) provide that if at any time the then current credit
standing of the obligor under such guaranteed investment contract is
such that continued investment pursuant to such contract of funds
would result in a downgrading of any rating of the Certificates, the
Trustee shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder,
together with accrued interest thereon at the interest rate provided
under such contract to the date of delivery of such funds to the
Trustee;
(iv) provide that the Trustee's interest therein shall be
transferable to any successor trustee hereunder: and
(v) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Certificate Account not later
than the Business Day prior to any Distribution Date.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the related Mortgaged Properties are located,
duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided and whose claims paying
ability is rated by each Rating Agency in its highest rating category or whose
selection as an insurer will not adversely affect the rating of the
Certificates.
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, a Mortgage Loan that, on the date of
substitution, (i) has a Scheduled Principal Balance (together with that of any
other mortgage loan substituted for the same Deleted Mortgage Loan) as of the
Due Date in the month in which such substitution occurs not in excess of the
Scheduled Principal Balance of the related Deleted Mortgage Loan; provided,
however, that, to the extent that the Scheduled Principal Balance of such
Mortgage Loan is less than the Scheduled Principal Balance of the related
Deleted Mortgage Loan, then such differential in principal amount, together
with interest thereon at the applicable Mortgage Rate from the date as to
which interest was last paid through the end of the Collection Period in which
such substitution occurs (such amount, a "Substitution Amount"), shall be paid
by the party effecting such substitution to the Trustee for deposit into the
Certificate Account, and shall be treated as a Principal Prepayment hereunder;
(ii) has a Net Mortgage Rate not lower than the Net Mortgage Rate of the
related Deleted Mortgage Loan; (iii) if the total principal balance of
Qualifying Substitute Mortgage Loans in the Trust Fund is less than 5% of the
initial principal balance of the Mortgage Loans, has a remaining stated term
to maturity not longer than, and not more than one year shorter than, the
remaining term to stated maturity of the related Deleted Mortgage Loan; (iv)
(A) has an Original Loan-to-Value Ratio as of the date of such substitution of
not greater than 80%; provided, however, that if the related Deleted Mortgage
Loan has an Original Loan-to-Value Ratio of greater than 80%, then the
Original Loan-to-Value Ratio of such substitute Mortgage Loan may be greater
than 80% but shall not be greater than the Original Loan-to-Value Ratio of the
related Deleted Mortgage Loan and (B) the addition of such substitute Mortgage
Loan does not increase the weighted average Original Loan-to-Value Ratio of
the Mortgage Pool by more than 5%; (v) will comply with all of the
representations and warranties relating to Mortgage Loans set forth herein, as
of the date as of which such substitution occurs; (vi) if applicable, has the
same index as and a margin not less than that of the related Deleted Mortgage
Loan and (vii) has not been delinquent for a period of more than 30 days more
than twice in the twelve months immediately preceding such date of
substitution. In the event that either one mortgage loan is substituted for
more than one Deleted Mortgage Loan or more than one mortgage loan is
substituted for one or more Deleted Mortgage Loans, then (a) the Scheduled
Principal Balance referred to in clause (i) above shall be determined on a
loan-by-loan basis, (b) the rate referred to in clause (ii) above shall be
determined on a loan-by-loan basis and (c) the remaining term to stated
maturity referred to in clause (iii) above, and the Original Loan-to-Value
Ratio referred to in clause (iv) above shall be determined on a weighted
average basis, provided that the final scheduled maturity date of any
Qualifying Substitute Mortgage Loan shall not exceed the latest Final
Scheduled Distribution Date of any Class of Certificates. Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan
pursuant to this Agreement, the party effecting such substitution shall
certify such qualification in writing to the Trustee.
Rating Agency: Each of Moody's and S&P.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the date of liquidation, minus (ii) Liquidation Proceeds received, to the
extent allocable to principal, net of amounts that are reimbursable therefrom
to the Servicer with respect to such Mortgage Loan (other than Advances of
principal) including expenses of liquidation. In determining whether a
Realized Loss is a Realized Loss of principal, Liquidation Proceeds shall be
allocated, first, to payment of expenses related to such Liquidated Mortgage
Loan, then to accrued unpaid interest and finally to reduce the principal
balance of the Mortgage Loan.
Record Date: With respect to the LIBOR Certificates and the Class AX
Certificates and any Distribution Date, the close of business on the Business
Day immediately preceding such Distribution Date. With respect to the Class X
and Class R Certificates and any Distribution Date, the last Business Day of
the month immediately preceding the month in which the Distribution Date
occurs (or, in the case of the first Distribution Date, the Closing Date).
Recognition Agreement: None.
Reference Banks: As defined in Section 4.05.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC
pursuant to Section 10.01(a) hereof.
REMIC 1: As described in the Preliminary Statement.
REMIC 2: As described in the Preliminary Statement.
REMIC 3: As described in the Preliminary Statement.
REMIC Provisions: The 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 regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the foregoing may be
in effect from time to time.
Remittance Date: The day in each calendar month on which the Servicer
is required to remit payments to the Certificate Account, as specified in the
Servicing Agreement, which is the 18th day of each calendar month (or, if such
18th day is not a Business Day, the next succeeding Business Day).
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Required Reserve Fund Amount: With respect to any Distribution Date
on which the Net Excess Spread is less than 0.25%, the amount, if any by which
(a) the product of 1.00% and the Total Loan Balance for such date exceeds (b)
the amount on deposit in the Basis Risk Reserve Fund immediately prior to such
date. With respect to any Distribution Date on which the Net Excess Spread is
equal to or greater than 0.25%, the amount, if any, by which (i) $1,000
exceeds (ii) the amount on deposit in the Basis Risk Reserve Fund immediately
prior to such date.
Reserve Interest Rate: As defined in Section 4.05.
Residual Certificate: The Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary,
the Treasurer, or any assistant treasurer, working in its corporate trust
department and having responsibility for the administration of this Agreement.
Restricted Certificate: Any Class X or Class R Certificate.
Rolling Three Month Delinquency Rate: With respect to any
Distribution Date, the fraction, expressed as a percentage, equal to the
average of the Delinquency Rates for each of the three (or one and two, in the
case of the first and second Distribution Dates) immediately preceding
calendar months.
S&P: Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor in interest.
Scheduled Payment: Each scheduled payment of principal and interest
(or of interest only, if applicable) to be paid by the Mortgagor on a Mortgage
Loan, as reduced (except where otherwise specified herein) by the amount of
any related Debt Service Reduction (excluding all amounts of principal and
interest that were due on or before the Cut-off Date whenever received) and,
in the case of an REO Property, an amount equivalent to the Scheduled Payment
that would have been due on the related Mortgage Loan if such Mortgage Loan
had remained in existence. In the case of any bi-weekly payment Mortgage Loan,
all payments due on such Mortgage Loan during any Collection Period shall be
deemed collectively to constitute the Scheduled Payment due on such Mortgage
Loan in such Collection Period.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as
of any Distribution Date, the principal balance of such Mortgage Loan at the
close of business on the Cut-off Date, after giving effect to principal
payments due on or before the Cut-off Date, whether or not received, less an
amount equal to principal payments due after the Cut-off Date and on or before
the Due Date in the related Collection Period, whether or not received from
the Mortgagor or advanced by the Servicer, and all amounts allocable to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the related Prepayment
Period) and (ii) any REO Property as of any Distribution Date, the Scheduled
Principal Balance of the related Mortgage Loan on the Due Date immediately
preceding the date of acquisition of such REO Property by or on behalf of the
Trustee (reduced by any amount applied as a reduction of principal on the
Mortgage Loan). With respect to any Mortgage Loan and the Cut-off Date, as
specified in the Mortgage Loan Schedule.
Security Agreement: None.
Seller: IBF Special Purpose Corporation VII, or any successor in
interest.
Senior Certificate: Any Class A1 or Class AX Certificate.
Senior Enhancement Percentage: With respect to any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the sum of
the aggregate Class Principal Amount of the Class M1, Class M2 and Class B
Certificates and the Overcollateralization Amount (which amount, for purposes
of this definition only, shall not be less than zero and assuming for purposes
of this definition that the Principal Distribution Amount has been distributed
on such Distribution Date and no Trigger Event has occurred) and the
denominator of which is the Total Loan Balance for such Distribution Date.
Senior Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or if a Trigger Event has
occurred with respect to such Distribution Date, an amount equal to 100% of
the Principal Distribution Amount and (b) on or after the Stepdown Date and as
long as a Trigger Event has not occurred with respect to such Distribution
Date, the amount, if any, by which (i) the aggregate Certificate Principal
Amount of the Class A1 Certificates immediately prior to such Distribution
Date exceeds (ii) the lesser of (x) the product of (A) 88.50% and (B) the
Total Loan Balance for such Distribution Date and (y) the amount, if any, by
which (A) the Total Loan Balance for such Distribution Date exceeds (B) 0.25%
of the Cut-off Date Total Loan Balance.
Servicer: Option One Mortgage Corporation, or any successors in
interest.
Servicing Agreement: The Servicing Agreement between the Servicer and
▇▇▇▇▇▇ Capital attached hereto as Exhibit E.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of (a) one-twelfth of the Servicing Fee Rate and
(b) the outstanding principal balance of such Mortgage Loan as of the first
day of the related Collection Period.
Servicing Fee Rate: 0.50% per annum.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stepdown Date: The later to occur of (x) the Distribution Date in
March 2004 and (y) the first Distribution Date on which the Senior Enhancement
Percentage (calculated for this purpose after giving effect to payments or
other recoveries in respect of the Mortgage Loans during the related
Collection Period but before giving effect to distributions on the
Certificates on such Distribution Date) is greater than to equal to 11.50%.
Subordinate Certificate: Any Class M1, Class M2, Class B or Class X
Certificate.
Substitution Amount: As defined in the definition of Qualifying
Substitute Mortgage Loan.
Target Amount: With respect to any Distribution Date beginning with
the Distribution Date in December 2001, an amount equal to the Total Loan
Balance as of such Distribution Date minus the Targeted Overcollateralization
Amount for such Distribution Date.
Targeted Overcollateralization Amount: With respect to any
Distribution Date, 0.25% of the Cut-off Date Total Loan Balance.
Tax Matters Person: The "tax matters person" as specified in the
REMIC Provisions.
Telerate Page 120: The display designated as "Page 120" on the Dow
▇▇▇▇▇ Telerate Service (or such other page selected by the Trustee as may
replace Page 120 on that service for the purpose of displaying daily Federal
Funds rates).
Termination Price: As defined in Section 7.01.
Title Insurance Policy: A title insurance policy maintained with
respect to a Mortgage Loan.
Total Distribution Amount: With respect to any Distribution Date, the
sum of the Interest Remittance Amount for such date and the Principal
Remittance Amount for such date.
Total Loan Balance: The aggregate of the Scheduled Principal Balances
of all Mortgage Loans at the date of determination.
Transfer Agreement: As defined in the Mortgage Loan Sale Agreement.
Transferor: Each seller of Mortgage Loans to ▇▇▇▇▇▇ Capital pursuant
to the Transfer Agreements.
Trigger Event: A Trigger Event will have occurred with respect to any
Distribution Date if the Rolling Three Month Delinquency Rate as of the last
day of the immediately preceding Collection Period equals or exceeds 130% of
the Senior Enhancement Percentage for such Distribution Date.
Trust Fund: The corpus of the trust created pursuant to this
Agreement, consisting of the Mortgage Loans, the assignment of the Depositor's
rights under the Mortgage Loan Sale Agreement, the IBF Mortgage Loan Sale
Agreement and the Servicing Agreement, such amounts as shall from time to time
be held in the Certificate Account, any Escrow Account, the Basis Risk Reserve
Fund, the Insurance Policies, any REO Property and the other items referred to
in, and conveyed to the Trustee under, Section 2.01(a).
Trustee: ▇▇▇▇▇ Fargo Bank Minnesota, National Association, not in its
individual capacity but solely as Trustee, or any successor in interest, or if
any successor trustee or any co-trustee shall be appointed as herein provided,
then such successor trustee and such co-trustee, as the case may be.
Trustee Fee: As to any Distribution Date, an amount equal to the
product of (a) one-twelfth the Trustee Fee Rate and (b) the aggregate
Scheduled Principal Balance of the related Mortgage Loans as of the first day
of the related Collection Period.
Trustee Fee Rate: 0.01% per annum.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58, 65
Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Unpaid Basis Risk Shortfall: With respect to any Distribution Date
and any Certificate, the aggregate of all Basis Risk Shortfalls with respect
to such Certificate remaining unpaid from previous Distribution Dates, plus
interest accrued thereon at the applicable Certificate Interest Rate
(calculated without giving effect to the applicable Net Funds Cap).
Upper Tier REMIC: REMIC 3.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
85% of all Voting Interests shall be allocated among the Class A1, Class M1,
Class M2 and Class B Certificates. Voting Interests shall be allocated among
the Class A1, Class M1, Class M2 and Class B Certificates (and among the
Certificates of each such Class) in proportion to their Class Principal
Amounts (or Certificate Principal Amounts). The Class X Certificate shall be
allocated 15% of the Voting Interests; provided, however, that, solely with
respect to the Certificateholders' right to direct the Trustee to terminate
the Servicer upon an Event of Default pursuant to Section 6.14, the Class X
Certificate shall be allocated 49.9% of the Voting Rights and the remainder of
the Voting Rights shall be allocated among the Class A1, Class M1, Class M2
and Class B Certificates. Voting Interests shall be allocated among the Class
X Certificates in proportion to their outstanding Percentage Interests. The
Class AX and Class R Certificates shall not have any Voting Interests.
Section 1.02. Calculations Respecting Mortgage Loans. Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan in the Trust Fund shall be made based upon current information as to the
terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans and payments to be made to the Trustee as
supplied to the Trustee by the Servicer. The Trustee shall not be required to
recompute, verify or recalculate the information supplied to it by the
Servicer.
Section 1.03. Calculations Respecting Accrued Interest. Accrued
interest, if any, on any Certificate other than any Interest-Only Certificate
shall be calculated based upon a 360-day year and the actual number of days in
each Accrual Period. Accrued interest, if any, on any Interest-Only
Certificate shall be calculated based upon a 360-day year consisting of twelve
30-day months.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01. Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans. (a) Concurrently with the execution and delivery of this
Agreement, the Depositor does hereby transfer, assign, set over, deposit with
and otherwise convey to the Trustee, without recourse, subject to Sections
2.02, 2.04, 2.05 and 2.06, in trust, all the right, title and interest of the
Depositor in and to the Mortgage Loans. Such conveyance includes, without
limitation, the right to all payments of principal and interest received on or
with respect to the Mortgage Loans on and after the Cut-off Date (other than
payments of principal and interest due on or before such date), and all such
payments due after such date but received prior to such date and intended by
the related Mortgagors to be applied after such date, together with all of the
Depositor's right, title and interest in and to the Certificate Account and
all amounts from time to time credited to and the proceeds of the Certificate
Account, any Escrow Account and all amounts from time to time credited to and
the proceeds of any such Escrow Account, any Basis Risk Reserve Fund
established pursuant to Section 5.06 and all amounts from time to time
credited to and the proceeds of any such Basis Risk Reserve Fund, any REO
Property and the proceeds thereof, the Depositor's rights under any Insurance
Policies related to the Mortgage Loans, the Depositor's security interest in
any collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties and any Additional Collateral, and any proceeds of the foregoing,
to have and to hold, in trust; and the Trustee declares that, subject to the
review provided for in Section 2.02, it has received and shall hold the Trust
Fund, as trustee, in trust, for the benefit and use of the Holders of the
Certificates and for the purposes and subject to the terms and conditions set
forth in this Agreement, and, concurrently with such receipt, has caused to be
executed, authenticated and delivered to or upon the order of the Depositor,
in exchange for the Trust Fund, Certificates in the authorized denominations
evidencing the entire ownership of the Trust Fund.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sale Agreement and the IBF Mortgage Loan Sale
Agreement, including all rights of ▇▇▇▇▇▇ Capital under the Servicing
Agreement and the Transfer Agreements to the extent assigned under the
Mortgage Loan Sale Agreement and the IBF Mortgage Loan Sale Agreement, and
delegates its obligations thereunder. The Trustee hereby accepts such
assignment and delegation, and shall be entitled to exercise all rights of the
Depositor under the Mortgage Loan Sale Agreement and the IBF Mortgage Loan
Sale Agreement as if, for such purpose, it were the Depositor. The foregoing
sale, transfer, assignment, set-over, deposit and conveyance does not and is
not intended to result in the creation or assumption by the Trustee of any
obligation of the Depositor, the Seller, ▇▇▇▇▇▇ Capital or any other Person in
connection with the Mortgage Loans or any other agreement or instrument
relating thereto except as specifically set forth herein.
(b) In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, or cause to be delivered to and
deposited with, the Trustee, and/or the applicable Custodian acting on the
Trustee's behalf, the following documents or instruments with respect to each
Mortgage Loan (each a "Mortgage File") so transferred and assigned:
(i) with respect to each Mortgage Loan, the original Mortgage
Note endorsed without recourse in proper form to the order of the
Trustee, or in blank (in each case, with all necessary intervening
endorsements, as applicable) or with respect to any lost Mortgage
Note, a lost note affidavit stating that the original Mortgage Note
was lost, misplaced or destroyed, together with a copy of the
related Mortgage Note;
(ii) the original of any guarantee executed in connection with
the Mortgage Note, assigned to the Trustee;
(iii) with respect to any Mortgage Loan, the original recorded
Mortgage with evidence of recording indicated thereon and the
original recorded power of attorney, with evidence of recording
thereon. If, in connection with any Mortgage Loan, the Depositor
cannot deliver the Mortgage or power of attorney with evidence of
recording thereon on or prior to the Closing Date because of a delay
caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage or power of
attorney has been lost, the Depositor shall deliver or cause to be
delivered to the Trustee (or its custodian), in the case of a delay
due to recording, a true copy of such Mortgage or power of attorney,
pending delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such
Mortgage or power of attorney delivered to the Trustee (or the
applicable Custodian) is a true copy and that the original of such
Mortgage or power of attorney has been forwarded to the public
recording office, or, in the case of a Mortgage or power of attorney
that has been lost, a copy thereof (certified as provided for under
the laws of the appropriate jurisdiction) and a written Opinion of
Counsel acceptable to the Trustee and the Depositor that an original
recorded Mortgage or power of attorney is not required to enforce
the Trustee's interest in the Mortgage Loan;
(iv) the original of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loans, or,
as to any assumption, modification or substitution agreement which
cannot be delivered on or prior to the Closing Date because of a
delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for
recordation, a photocopy of such assumption, modification or
substitution agreement, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying
that the copy of such assumption, modification or substitution
agreement delivered to the Trustee (or the applicable Custodian) is
a true copy and that the original of such agreement has been
forwarded to the public recording office;
(v) with respect to each Non-MERS Mortgage Loan, an original
Assignment of Mortgage, in form and substance acceptable for
recording. The Mortgage shall be assigned either (A) in blank,
without recourse, (B) to "▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as Trustee of the Amortizing Residential Collateral
Trust, 2001-BC1", without recourse, or (C) to the order of the
Trustee;
(vi) if applicable, such original intervening assignments of
the Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete
chain of assignment from the originator, or, in the case of an
Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Trustee that such original Intervening
Assignment is not required to enforce the Trustee's interest in the
Mortgage Loans;
(vii) with respect to any Mortgage Loan, the original mortgagee
title insurance policy or attorney's opinion of title and abstract
of title; and
(viii) the original of any security agreement, chattel mortgage
or equivalent executed in connection with the Mortgage or as to any
security agreement, chattel mortgage or their equivalent that cannot
be delivered on or prior to the Closing Date because of a delay
caused by the public recording office where such document has been
delivered for recordation, a photocopy of such document, pending
delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such
security agreement, chattel mortgage or their equivalent delivered
to the Trustee (or its custodian) is a true copy and that the
original of such document has been forwarded to the public recording
office.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-4 is intended to effect the transfer to the
Trustee, for the benefit of the Certificateholders, of the Mortgage Notes and
the Mortgages.
(c) (i) Assignments of Mortgage with respect to each Non-MERS
Mortgage Loan shall be recorded; provided, however, that such Assignments need
not be recorded if, in the Opinion of Counsel (which must be Independent
counsel) acceptable to the Trustee and the Rating Agencies, recording in such
states is not required to protect the Trustee's interest in the related
Non-MERS Mortgage Loans. Subject to the preceding sentence, as soon as
practicable after the Closing Date (but in no event more than three months
thereafter except to the extent delays are caused by the applicable recording
office), the Trustee, at the expense of the Depositor and with the cooperation
of the Servicer, shall cause to be properly recorded by the Servicer in each
public recording office where the related Mortgages are recorded each
Assignment of Mortgage referred to in subsection (b)(v) above with respect to
each Non-MERS Mortgage Loan.
(ii) With respect to each MERS Mortgage Loan, the Trustee, at the
expense of the Depositor and at the direction and with the cooperation of the
Servicer, shall cause to be taken such actions as are necessary to cause the
Trustee to be clearly identified as the owner of each such Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee or the applicable Custodian on behalf of the Trustee
under clause (b)(vii) above and is not so delivered, the Depositor will
provide a copy of such Title Insurance Policy to the Trustee, or to the
applicable Custodian on behalf of the Trustee, as promptly as practicable
after the execution and delivery hereof, but in any case within 180 days of
the Closing Date.
(e) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
applicable Custodian on behalf of the Trustee, an Officer's Certificate which
shall include a statement to the effect that all amounts received in
connection with such prepayment that are required to be deposited in the
Certificate Account pursuant to Section 4.04 have been so deposited. All
original documents that are not delivered to the Trustee or the applicable
Custodian on behalf of the Trustee shall be held by the Servicer in trust for
the benefit of the Trustee and the Certificateholders.
Section 2.02. Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund. (a) The Trustee, by execution and delivery
hereof, acknowledges receipt by it or by the applicable Custodian on its
behalf of the Mortgage Files pertaining to the Mortgage Loans listed on the
Mortgage Loan Schedule, subject to review thereof by the Trustee, or by the
applicable Custodian on behalf of the Trustee, under this Section 2.02. The
Trustee, or the applicable Custodian on behalf of the Trustee, will execute
and deliver to the Trustee and the Depositor on the Closing Date an Initial
Certification in the form annexed hereto as Exhibit B-1 (or in the form
annexed to the applicable Custodial Agreement as Exhibit B-1, as applicable).
(b) Within 45 days after the Closing Date, the Trustee or the
applicable Custodian on behalf of the Trustee, will, for the benefit of
Holders of the Certificates, review each Mortgage File to ascertain that all
required documents set forth in Section 2.01 have been received and appear on
their face to contain the requisite signatures by or on behalf of the
respective parties thereto, and shall deliver to the Trustee and the Depositor
an Interim Certification in the form annexed hereto as Exhibit B-2 (or in the
form annexed to the applicable Custodial Agreement as Exhibit B-2, as
applicable) to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan prepaid in full or any
specifically identified in such certification as not covered by such
certification), (i) all of the applicable documents specified in Section
2.01(b) are in its possession and (ii) such documents have been reviewed by it
and appear to relate to such Mortgage Loan. The Trustee, or the applicable
Custodian on behalf of the Trustee, shall make sure that the documents are
executed and endorsed, but shall be under no duty or obligation to inspect,
review or examine any such documents, instruments, certificates or other
papers to determine that the same are valid, binding, legally effective,
properly endorsed, genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded or are in recordable form or
that they are other than what they purport to be on their face. Neither the
Trustee nor any applicable Custodian shall have any responsibility for
verifying the genuineness or the legal effectiveness of or authority for any
signatures of or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (a) above
the Trustee or the applicable Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear
regular on its face (i.e., is mutilated, damaged, defaced, torn or otherwise
physically altered) or appears to be unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule (each, a "Material Defect"), the
Trustee, or the applicable Custodian on behalf of the Trustee shall promptly
identify the Mortgage Loan to which such Material Defect relates in the
Interim Certification delivered to the Depositor and to the Trustee. Within 90
days of its receipt of such notice, the Transferor, or, if the Transferor does
not do so, the Depositor shall be required to cure such Material Defect (and,
in such event, the Depositor shall provide the Trustee with an Officer's
Certificate confirming that such cure has been effected). If the applicable
Transferor or the Depositor, as applicable, does not so cure such Material
Defect, the Transferor, or, if the Transferor does not do so, the Depositor,
shall, if a loss has been incurred with respect to such Mortgage Loan that
would, if such Mortgage Loan were not purchased from the Trust Fund,
constitute a Realized Loss, and such loss is attributable to the failure of
the Depositor to cure such Material Defect, repurchase the related Mortgage
Loan from the Trust Fund at the Purchase Price. A loss shall be deemed to be
attributable to the failure of the Depositor to cure a Material Defect if, as
determined by the Depositor, upon mutual agreement with the Trustee acting in
good faith, absent such Material Defect, such loss would not have been
incurred. Within the two-year period following the Closing Date, the Depositor
may, in lieu of repurchasing a Mortgage Loan pursuant to this Section 2.02,
substitute for such Mortgage Loan a Qualifying Substitute Mortgage Loan
subject to the provisions of Section 2.05. The failure of the Trustee or the
applicable Custodian to give the notice contemplated herein within 45 days
after the Closing Date shall not affect or relieve the Depositor of its
obligation to repurchase any Mortgage Loan pursuant to this Section 2.02 or
any other Section of this Agreement requiring the repurchase of Mortgage Loans
from the Trust Fund.
(d) Within 180 days following the Closing Date, the Trustee, or the
applicable Custodian, shall deliver to the Trustee and the Depositor a Final
Certification substantially in the form attached as Exhibit B-3 (or in the
form annexed to the applicable Custodial Agreement as Exhibit B-3, as
applicable) evidencing the completeness of the Mortgage Files in its
possession or control, with any exceptions noted thereto.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, any Custodian or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
(f) Each of the parties hereto acknowledges that the applicable
Custodian shall perform the applicable review of the Mortgage Loans and
respective certifications thereof as provided in this Section 2.02 and the
Custodial Agreement.
Section 2.03. Representations and Warranties of the Depositor. (a)
The Depositor hereby represents and warrants to the Trustee, for the benefit
of Certificateholders, as of the Closing Date or such other date as is
specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation
and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter
into and perform its obligations under this Agreement, and to create
the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate
action on the part of the Depositor; neither the execution and
delivery of this Agreement, nor the consummation of the transactions
herein contemplated, nor compliance with the provisions hereof, will
conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or
its properties or the certificate of incorporation or bylaws of the
Depositor;
(iii) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any
other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by
the Trustee, constitutes a valid and binding obligation of the
Depositor enforceable against it in accordance with its terms except
as such enforceability may be subject to (A) applicable bankruptcy
and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally and (B) general principles of
equity regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened or likely to be asserted
against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by this Agreement or
(B) with respect to any other matter which in the judgment of the
Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially and adversely
affect it or its business, assets, operations or condition,
financial or otherwise, or adversely affect its ability to perform
its obligations under this Agreement; and
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good
and marketable title thereto, and had full right to transfer and
sell each Mortgage Loan to the Trustee free and clear, subject only
to (1) liens of current real property taxes and assessments not yet
due and payable and, if the related Mortgaged Property is a
condominium unit, any lien for common charges permitted by statute,
(2) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of
such Mortgage acceptable to mortgage lending institutions in the
area in which the related Mortgaged Property is located and
specifically referred to in the lender's Title Insurance Policy or
attorney's opinion of title and abstract of title delivered to the
originator of such Mortgage Loan, and (3) such other matters to
which like properties are commonly subject which do not,
individually or in the aggregate, materially interfere with the
benefits of the security intended to be provided by the Mortgage, of
any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign each Mortgage Loan
pursuant to this Agreement.
(b) The representations and warranties of each Transferor with
respect to the related Mortgage Loans in the applicable Transfer Agreement,
which have been assigned to the Trustee hereunder, were made as of the date
specified in the applicable Transfer Agreement (or underlying agreement, if
such Transfer Agreement is in the form of an assignment of a prior agreement).
To the extent that any fact, condition or event with respect to a Mortgage
Loan constitutes a breach of both (i) a representation or warranty of the
applicable Transferor under the applicable Transfer Agreement and (ii) a
representation or warranty of ▇▇▇▇▇▇ Capital under the Mortgage Loan Sale
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right to enforce the obligations of the applicable
Transferor under any applicable representation or warranty made by it. The
Trustee acknowledges that ▇▇▇▇▇▇ Capital shall have no obligation or liability
with respect to any breach of a representation or warranty made by it with
respect to the Mortgage Loans if the fact, condition or event constituting
such breach also constitutes a breach of a representation or warranty made by
the applicable Transferor in the applicable Transfer Agreement, without regard
to whether such Transferor fulfills its contractual obligations in respect of
such representation or warranty. The Trustee further acknowledges that the
Depositor shall have no obligation or liability with respect to any breach of
any representation or warranty with respect to the Mortgage Loans (except as
set forth in Section 2.03(a)(vi)) under any circumstances.
Section 2.04. Discovery of Breach. It is understood and agreed that
the representations and warranties (i) set forth in Section 2.03, (ii) of
▇▇▇▇▇▇ Capital set forth in the Mortgage Loan Sale Agreement and assigned to
the Depositor by the Seller under the IBF Mortgage Loan Sale Agreement and to
the Trustee by the Depositor hereunder and (iii) of each Transferor and of the
Servicer, assigned by ▇▇▇▇▇▇ Capital to the Seller pursuant to the Mortgage
Loan Sale Agreement, by the Seller to the Depositor pursuant to the IBF
Mortgage Loan Sale Agreement and assigned to the Trustee by the Depositor
hereunder, shall each survive delivery of the Mortgage Files and the
Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue
throughout the term of this Agreement. Upon discovery by either of the
Depositor or the Trustee of a breach of any of such representations and
warranties that adversely and materially affects the value of the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other party. Within 90 days of the discovery of a breach of any
representation or warranty given to the Trustee by the Depositor or given by
any Transferor or ▇▇▇▇▇▇ Capital and assigned to the Trustee, the Depositor,
such Transferor or ▇▇▇▇▇▇ Capital, as applicable, shall either (a) cure such
breach in all material respects, (b) repurchase such Mortgage Loan or any
property acquired in respect thereof from the Trustee at the Purchase Price
(or, with respect to Mortgage Loans as to which there is a breach of a
representation or warranty set forth in Section 1.04(b)(v) or Section
1.04(b)(xiii) to (xix) of the Mortgage Loan Sale Agreement, at the purchase
price therefor paid by ▇▇▇▇▇▇ Capital under the Mortgage Loan Sale Agreement)
or (c) within the two-year period following the Closing Date, substitute a
Qualifying Substitute Mortgage Loan for the affected Mortgage Loan. In the
event of discovery of a breach of any representation and warranty of any
Transferor assigned to the Trustee, the Trustee shall enforce its rights under
the applicable Transfer Agreement, the IBF Mortgage Loan Sale Agreement and
the Mortgage Loan Sale Agreement for the benefit of Certificateholders. As
provided in the Mortgage Loan Sale Agreement, if any Transferor substitutes a
mortgage loan for a Deleted Mortgage Loan pursuant to the related Transfer
Agreement and such substitute mortgage loan is not a Qualifying Substitute
Mortgage Loan, under the terms of the Mortgage Loan Sale Agreement ▇▇▇▇▇▇
Capital will, in exchange for such substitute mortgage loan, (i) pay to the
Trust Fund the applicable Purchase Price for the affected Mortgage Loan or
(ii) within two years of the Closing Date, substitute a Qualifying Substitute
Mortgage Loan.
Section 2.05. Repurchase, Purchase or Substitution of Mortgage Loans.
(a) With respect to any Mortgage Loan repurchased by the Depositor pursuant to
this Agreement, by ▇▇▇▇▇▇ Capital pursuant to the Mortgage Loan Sale Agreement
or by the Transferor pursuant to the applicable Transfer Agreement, the
principal portion of the funds received by the Trustee in respect of such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
shall be deposited in the Certificate Account. The Trustee, upon receipt of
the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon
receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan
substituted for a Deleted Mortgage Loan (and any applicable Substitution
Amount), shall release or cause to be released and reassign to the Depositor,
▇▇▇▇▇▇ Capital or the Transferor, as applicable, the related Mortgage File for
the Deleted Mortgage Loan and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, representation or
warranty, as shall be necessary to vest in such party or its designee or
assignee title to any Deleted Mortgage Loan released pursuant hereto, free and
clear of all security interests, liens and other encumbrances created by this
Agreement, which instruments shall be prepared by the Servicer and the Trustee
shall have no further responsibility with respect to the Mortgage File
relating to such Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
Transferor or ▇▇▇▇▇▇ Capital, as applicable, must deliver to the Trustee (or a
Custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File and
containing the granting language set forth in Section 2.01(a); and (ii) the
Depositor will be deemed to have made, with respect to such Qualified
Substitute Mortgage Loan, each of the representations and warranties made by
it with respect to the related Deleted Mortgage Loan. As soon as practicable
after the delivery of any Qualifying Substitute Mortgage Loan hereunder, the
Trustee, at the expense of the Depositor and with the cooperation of the
Servicer, shall (i) with respect to a Qualifying Substitute Mortgage Loan that
is a Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be recorded
by the Servicer if required pursuant to Section 2.01(c) or (ii) with respect
to a Qualifying Substitute Mortgage Loan that is a MERS Mortgage Loan, cause
to be taken such actions as are necessary to cause the Trustee to be clearly
identified as the owner of each such Mortgage Loan on the records of MERS if
required pursuant to Section 2.01(c).
(c) Notwithstanding any other provision of this Agreement, the right
to substitute Mortgage Loans pursuant to this Article II shall be subject to
the additional limitations that no substitution of a Qualifying Substitute
Mortgage Loan for a Deleted Mortgage Loan shall be made unless the Trustee has
received an Opinion of Counsel (at the expense of the party seeking to make
the substitution) that, under current law, such substitution will not (A)
affect adversely the status of any REMIC established hereunder as a REMIC, or
of the related "regular interests" as "regular interests" in any such REMIC,
or (B) cause any such REMIC to engage in a "prohibited transaction" or
prohibited contribution pursuant to the REMIC Provisions.
Section 2.06. Grant Clause. It is intended that the conveyance of the
Depositor's right, title and interest in and to property constituting the
Trust Fund pursuant to this Agreement shall constitute, and shall be construed
as, a sale of such property and not a grant of a security interest to secure a
loan. However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) the Depositor hereby
grants to the Trustee for the benefit of the Holders of the Certificates a
first priority security interest in all of the Depositor's right, title and
interest in, to and under, whether now owned or hereafter acquired, the Trust
Fund and all proceeds of any and all property constituting the Trust Fund to
secure payment of the Certificates; and (3) this Agreement shall constitute a
security agreement under applicable law. If such conveyance is deemed to be in
respect of a loan and the trust created by this Agreement terminates prior to
the satisfaction of the claims of any Person holding any Certificate, the
security interest created hereby shall continue in full force and effect and
the Trustee shall be deemed to be the collateral agent for the benefit of such
Person, and all proceeds shall be distributed as herein provided.
Section 2.07. Purchase of Defaulted Mortgage Loans. The Holder of the
Class X Certificate shall have the right to purchase Mortgage Loans from the
Trust Fund that are three or more Scheduled Payments delinquent by depositing
with the Trustee an amount equal to the Purchase Price therefor. The aggregate
of any such purchases of Mortgage Loans by the Holder of the Class X
Certificate pursuant to this Section 2.07 shall not exceed 5% of the Cut-off
Date Total Loan Balance.
ARTICLE III
THE CERTIFICATES
Section 3.01. The Certificates. (a) The Certificates shall be
issuable in registered form only and shall be securities governed by Article 8
of the New York Uniform Commercial Code. The Book-Entry Certificates will be
evidenced by one or more certificates, beneficial ownership of which will be
held in the dollar denominations in Certificate Principal Amount, or Notional
Principal Amount, as applicable, or in the Percentage Interests, specified
herein. Each Class of Book-Entry Certificates will be issued in the minimum
denominations in Certificate Principal Amount (or Notional Amount) specified
in the Preliminary Statement hereto and in integral multiples of $1 in excess
thereof. The Class X Certificate and the Class R Certificate shall each be
issued as a single Certificate and maintained in definitive, fully registered
form in a denomination equal to 100% of the Percentage Interest of such Class.
The Certificates may be issued in the form of typewritten certificates.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Each Certificate
shall, on original issue, be authenticated by the Trustee upon the order of
the Depositor upon receipt by the Trustee of the Mortgage Files described in
Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or the
Authenticating Agent, if any, by manual signature, and such certification upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Depositor to the Trustee or
the Authenticating Agent for authentication and the Trustee or the
Authenticating Agent shall authenticate and deliver such Certificates as in
this Agreement provided and not otherwise.
Section 3.02. Registration. The Trustee is hereby appointed, and
hereby accepts its appointment as, Certificate Registrar in respect of the
Certificates and shall maintain books for the registration and for the
transfer of Certificates (the "Certificate Register"). The Trustee may appoint
a bank or trust company to act as Certificate Registrar. A registration book
shall be maintained for the Certificates collectively. The Certificate
Registrar may resign or be discharged or removed and a new successor may be
appointed in accordance with the procedures and requirements set forth in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders, any bank or trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided, however, that
the Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Section 3.03. Transfer and Exchange of Certificates. (a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class and
evidencing, in the aggregate, the same aggregate Certificate Principal Amount
as the Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same obligations, and will be entitled to the same rights and privileges, as
the Certificates surrendered. No service charge shall be made to a
Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the
Depositor or the Placement Agent, an affiliate (as defined in Rule
405 under the ▇▇▇▇ ▇▇▇) of the Depositor or the Placement Agent or
(y) being made to a "qualified institutional buyer" (a "QIB") as
defined in Rule 144A under the Securities Act of 1933, as amended
(the "Act") by a transferor that has provided the Trustee with a
certificate in the form of Exhibit F hereto; and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under
the Act, or to any Person all of the equity owners in which are such
accredited investors, by a transferor who furnishes to the Trustee a
letter of the transferee substantially in the form of Exhibit G
hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Trustee has
received (A) a certificate substantially in the form of Exhibit H hereto from
such transferee or (B) an Opinion of Counsel satisfactory to the Trustee and
the Depositor to the effect that the purchase and holding of such a
Certificate will not constitute or result in the assets of the Trust Fund
being deemed to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will not subject the
Trustee, the Servicer or the Depositor to any obligation in addition to those
undertaken in the Agreement; provided, however, that the Trustee will not
require such certificate or opinion in the event that, as a result of a change
of law or otherwise, counsel satisfactory to the Trustee has rendered an
opinion to the effect that the purchase and holding of an ERISA-Restricted
Certificate by a Plan or a Person that is purchasing or holding such a
Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under ERISA or Section 4975 of the Code. Each
Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the representations set forth in Exhibit H. The
preparation and delivery of the certificate and opinions referred to above
shall not be an expense of the Trust Fund, the Trustee or the Depositor.
Notwithstanding the foregoing, no opinion or certificate shall be required for
the initial issuance of the ERISA-Restricted Certificates.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of a Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to (i) a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person is (A) not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Trustee with an effective Internal
Revenue Service Form 4224 or successor form at the time and in the manner
required by the Code (any such person who is not covered by clause (A) or (B)
above is referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale
or other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto
as Exhibit D-1 representing and warranting, among other things, that such
transferee is neither a Disqualified Organization, an agent or nominee acting
on behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder
(any such transferee, a "Permitted Transferee"), and the proposed transferor
shall deliver to the Trustee an affidavit in substantially the form attached
hereto as Exhibit D-2. In addition, the Trustee may (but shall have no
obligation to) require, prior to and as a condition of any such transfer, the
delivery by the proposed transferee of an Opinion of Counsel, addressed to the
Depositor and the Trustee satisfactory in form and substance to the Depositor,
that such proposed transferee or, if the proposed transferee is an agent or
nominee, the proposed beneficial owner, is not a Disqualified Organization,
agent or nominee thereof, or a Non-Permitted Foreign Holder. Notwithstanding
the registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or Non-Permitted Foreign Holder, such registration shall
be deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-Permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
The Trustee shall not be under any liability to any person for any
registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof or Non-permitted Foreign Holder or for
the maturity of any payments due on such Residual Certificate to the Holder
thereof or for taking any other action with respect to such Holder under the
provisions of the Agreement, so long as the transfer was effected in
accordance with this Section 3.03(f), unless the Trustee shall have actual
knowledge at the time of such transfer or the time of such payment or other
action that the transferee is a Disqualified Organization, or an agent or
nominee thereof, or Non-permitted Foreign Holder. The Trustee shall be
entitled to recover from any Holder of a Residual Certificate that was a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder at the time it became a Holder or any subsequent time it became a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder, all payments made on such Residual Certificate at and after either
such times (and all costs and expenses, including but not limited to
attorneys' fees, incurred in connection therewith). Any payment (not including
any such costs and expenses) so recovered by the Trustee shall be paid and
delivered to the last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of transfer of a Residual Certificate that
is in fact not permitted by this Section 3.03(f), for making any payment due
on such Certificate to the registered Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered upon receipt of the affidavit described in
the preceding paragraph of this Section 3.03(f).
(g) Each Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate or Residual Certificate, or an interest therein,
by such Holder's or Owner's acceptance thereof, shall be deemed for all
purposes to have consented to the provisions of this section.
Section 3.04. Cancellation of Certificates. Any Certificate
surrendered for registration of transfer or exchange shall be cancelled and
retained in accordance with normal retention policies with respect to
cancelled certificates maintained by the Trustee or the Certificate Registrar.
Section 3.05. Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or
(ii) the Trustee or any Authenticating Agent receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee or the Authenticating Agent such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Depositor and any Authenticating Agent that such
destroyed, lost or stolen Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute and the Trustee or any Authenticating
Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee and Authenticating Agent may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee or the Authenticating Agent)
connected therewith. Any replacement Certificate issued pursuant to this
Section 3.05 shall constitute complete and indefeasible evidence of ownership
in the applicable Trust Fund, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Subject to the provisions of
Section 3.09 with respect to Book-Entry Certificates, the Depositor, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered upon the books of the
Certificate Registrar as the owner of such Certificate for the purpose of
receiving distributions pursuant to Sections 5.01 and 5.02 and for all other
purposes whatsoever, and neither the Depositor, the Trustee, the Certificate
Registrar nor any agent of any of them shall be affected by notice to the
contrary.
Section 3.07. Temporary Certificates. (a) Pending the preparation of
definitive Certificates, upon the order of the Depositor, the Trustee shall
execute and shall authenticate and deliver temporary Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in
exchange therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
Section 3.08. Appointment of Paying Agent. The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to the Certificateholders. All funds remitted by the
Trustee to any such Paying Agent for the purpose of making distributions shall
be paid to Certificateholders on each Distribution Date and any amounts not so
paid shall be returned on such Distribution Date to the Trustee. If the Paying
Agent is not the Trustee, the Trustee shall cause to be remitted to the Paying
Agent on or before the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers.
Section 3.09. Book-Entry Certificates. (a) Each Class of Book-Entry
Certificates, upon original issuance, shall be issued in the form of one or
more typewritten Certificates representing the Book-Entry Certificates. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of the nominee of the Clearing Agency, and no Certificate
Owner will receive a definitive certificate representing such Certificate
Owner's interest in the Book-Entry Certificates, except as provided in Section
3.09(c). Unless Definitive Certificates have been issued to Certificate Owners
of Book-Entry Certificates pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full force
and effect;
(ii) the Depositor, the Paying Agent, the Registrar and the
Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate
Owners and the Clearing Agency shall be responsible for crediting
the amount of such distributions to the accounts of such Persons
entitled thereto, in accordance with the Clearing Agency's normal
procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions
of this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Unless and until Definitive Certificates are
issued pursuant to Section 3.09(c), the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on
the Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.09(c), the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer's Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify or cause the Certificate Registrar to
notify the Clearing Agency to effect notification to all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable, with respect to such
Definitive Certificates and the Trustee shall recognize the holders of the
Definitive Certificates as Certificateholders hereunder.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01. [Reserved].
Section 4.02. [Reserved].
Section 4.03. Reports to Certificateholders. (a) On each Distribution
Date, the Trustee shall make available via its internet website a report
setting forth the following information, which information the Trustee will
determine (on the basis of information obtained from the Servicer) no later
than one Business Day prior to such Distribution Date:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates other
than any Class of Notional Certificates, to the extent applicable,
allocable to principal on the Mortgage Loans, including Liquidation
Proceeds and Insurance Proceeds, stating separately the amount
attributable to scheduled principal payments and unscheduled
payments in the nature of principal;
(ii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates
allocable to interest;
(iii) the amount, if any, of any distribution to the Holders of
the Class X Certificate and the Residual Certificate;
(iv) (A) the aggregate amount of any Advances required to be
made by or on behalf of the Servicer (or the Trustee) with respect
to such Distribution Date, (B) the aggregate amount of such Advances
actually made, and (C) the amount, if any, by which (A) above
exceeds (B) above;
(v) the total number of Mortgage Loans in the Mortgage Pool and
the Total Loan Balance of the Mortgage Pool as of the close of
business on the last day of the related Collection Period, after
giving effect to payments allocated to principal reported under
clause (i) above;
(vi) the Class Principal Amount (or Class Notional Amount) of
each Class of Certificates, to the extent applicable, as of such
Distribution Date after giving effect to payments allocated to
principal reported under clause (i) above, separately identifying
any reduction of any of the foregoing Certificate Principal Amounts
due to Applied Loss Amounts;
(vii) the amount of all prepayment penalties or premiums
distributed to IBF Special Purpose Corporation VII, or its assignee;
(viii) any Realized Losses realized with respect to the
Mortgage Loans (x) in the applicable Prepayment Period and (y) in
the aggregate since the Cut-off Date;
(ix) the amount of the Servicing Fees, Trustee Fees, Loss
Mitigation Advisor's Fees and MGIC Insurance Premiums paid during
the Collection Period to which such distribution relates;
(x) the number and aggregate Scheduled Principal Balance of
Mortgage Loans, as reported to the Trustee by the Servicer, (a)
remaining outstanding (b) delinquent 30 to 59 days on a contractual
basis, (c) delinquent 60 to 89 days on a contractual basis, (d)
delinquent 90 or more days on a contractual basis, and (e) as to
which foreclosure proceedings have been commenced as of the close of
business on the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs;
(xi) the aggregate deemed principal balance of all REO Property
as of the close of business on the last Business Day of the calendar
month immediately preceding the month in which such Distribution
Date occurs;
(xii) with respect to substitution of Mortgage Loans in the
preceding calendar month, the Scheduled Principal Balance of each
Deleted Mortgage Loan, and of each Qualifying Substitute Mortgage
Loan;
(xiii) the aggregate outstanding Carryforward Interest, Net
Prepayment Interest Shortfalls, Prepayment Interest Excess, Basis
Risk Shortfalls and Unpaid Basis Risk Shortfalls, if any, for each
Class of Certificates, after giving effect to the distribution made
on such Distribution Date;
(xiv) the Certificate Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates;
(xv) if applicable, the amount of any shortfall (i.e., the
difference between the aggregate amounts of principal and interest
which Certificateholders would have received if there were
sufficient available amounts in the Certificate Account and the
amounts actually distributed);
(xvi) the aggregate unpaid principal balance of all Mortgage
Loans first submitted for mortgage insurance claims during the
related Prepayment Period and the aggregate related claim amount;
and
(xvii) the aggregate amount of the mortgage insurance claim
payments received and the aggregate amount of the mortgage insurance
claim payments rejected during the related Prepayment Period.
In the case of information furnished pursuant to subclauses (i), (ii)
and (viii) above, the amounts shall (except in the case of the report
delivered to the holder of the Class X Certificate) be expressed as a dollar
amount per $1,000 of original principal amount of Certificates.
The Trustee will make such statement and additional loan level
information (and, at its option, any additional files containing the same
information in an alternative format) available each month to
Certificateholders and the Rating Agencies via the Trustee's internet website.
The Trustee's internet website shall initially be located at
"▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the website can be obtained by calling
the Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable
to use website are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The
Trustee shall have the right to change the way such statements are distributed
in order to make such distribution more convenient and/or more accessible to
the above parties and the Trustee shall provide timely and adequate
notification to all above parties regarding any such changes.
In preparing or furnishing the foregoing information, the Trustee
shall be entitled to rely conclusively on the accuracy of the information or
data regarding the Mortgage Loans and the related REO Property that has been
provided to the Trustee by the Servicer, and the Trustee shall not be
obligated to verify, recompute, reconcile or recalculate any such information
or data.
(b) Upon the reasonable advance written request of any
Certificateholder that is a savings and loan, bank or insurance company, the
Trustee shall provide, or cause to be provided, (or, to the extent that such
information or documentation is not required to be provided by the Servicer
under the Servicing Agreement, shall use reasonable efforts to obtain such
information and documentation from the Servicer, and provide) to such
Certificateholder such reports and access to information and documentation
regarding the Mortgage Loans as such Certificateholder may reasonably deem
necessary to comply with applicable regulations of the Office of Thrift
Supervision or its successor or other regulatory authorities with respect to
investment in the Certificates; provided, however, that the Trustee shall be
entitled to be reimbursed by such Certificateholder for the Trustee's actual
expenses incurred in providing such reports and access.
(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Trustee shall
send to each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to Certificateholders
pursuant to Section 4.03(a) on an annual basis as may be required to enable
such Holders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund.
Section 4.04. Certificate Account. The Trustee shall establish and
maintain in its name, as trustee, a special deposit trust account (the
"Certificate Account"), to be held in trust for the benefit of the
Certificateholders until disbursed pursuant to the terms of this Agreement.
The Certificate Account shall be an Eligible Account. If the existing
Certificate Account ceases to be an Eligible Account, the Trustee shall
establish a new Certificate Account that is an Eligible Account within 20
Business Days and transfer all funds on deposit in such existing Certificate
Account into such new Certificate Account. The Certificate Account shall
relate solely to the Certificates issued hereunder and funds in the
Certificate Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies
of the Trustee held under this Agreement.
The Trustee shall deposit or cause to be deposited into the
Certificate Account, no later than the Business Day following the Closing
Date, any amounts representing Scheduled Payments on the Mortgage Loans due
after the Cut-off Date and received by the Trustee on or before the Closing
Date. Thereafter, the Trustee shall deposit or cause to be deposited in the
Certificate Account on the applicable Remittance Date the following amounts
received or payments made by it (other than in respect of principal of and
interest on the Mortgage Loans due on or before the Cut-Off Date):
(i) all payments on account of principal, including Principal
Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
(other than payments due prior to the Cut-off Date), including
Prepayment Premiums or penalties, net of the Servicing Fee and the
MGIC Insurance Premiums, if any, with respect to each such Mortgage
Loan;
(iii) any unscheduled payment or other recovery with respect to
a Mortgage Loan not otherwise specified in this paragraph, including
all Liquidation Proceeds with respect to the Mortgage Loans and REO
Property, and all amounts received in connection with the operation
of any REO Property, net of (x) any unpaid Servicing Fees with
respect to such Mortgage Loans and (y) any amounts reimbursable to
the Servicer under the Servicing Agreement and retained by the
Servicer;
(iv) all Insurance Proceeds;
(v) all Advances made by the Servicer pursuant to Section 4.03
or the Servicing Agreement; and
(vi) all proceeds of any Mortgage Loan repurchased by the
Depositor, ▇▇▇▇▇▇ Capital or any other Person.
The Trustee may, from time to time, make, or cause to be made,
withdrawals from the Certificate Account for the following purposes:
(i) to reimburse itself or the Servicer for Advances made by it
or by the Servicer pursuant to Section 4.03 or the Servicing
Agreement; the Trustee's or the Servicer's right to reimburse itself
pursuant to this subclause (i) is limited to amounts received on or
in respect of particular Mortgage Loans (including, for this
purpose, Liquidation Proceeds and amounts representing Insurance
Proceeds with respect to the property subject to the related
Mortgage) which represent late recoveries (net of the Servicing Fee)
of payments of principal or interest respecting which any such
Advance was made, it being understood, in the case of any such
reimbursement, that the Trustee's or Servicer's right thereto shall
be prior to the rights of the Certificateholders pursuant to the
Servicing Agreement;
(ii) to reimburse itself or the Servicer, following a final
liquidation of a Mortgage Loan, for any amounts advanced by it or by
the Servicer that it determines in good faith will not be
recoverable from amounts representing late recoveries of payments of
principal or interest respecting the particular Mortgage Loan as to
which such Advance was made or from Liquidation Proceeds or
Insurance Proceeds with respect to such Mortgage Loan, it being
understood, in the case of any such reimbursement, that the
Servicer's right thereto shall be prior to the rights of the
Certificateholders pursuant to the Servicing Agreement;
(iii) to reimburse the Servicer from Liquidation Proceeds for
Liquidation Expenses and for amounts expended by the Servicer
pursuant to the Servicing Agreement in good faith in connection with
the restoration of damaged property and, to the extent that
Liquidation Proceeds after such reimbursement exceed the unpaid
principal balance of the related Mortgage Loan, together with
accrued and unpaid interest thereon at the applicable Mortgage Rate
less the Servicing Fee for such Mortgage Loan to the Due Date next
succeeding the date of its receipt of such Liquidation Proceed;
(iv) to reimburse the Servicer for expenses incurred by and
recoverable by or reimbursable to the Servicer pursuant to Servicing
Agreement;
(v) to pay to the Depositor, ▇▇▇▇▇▇ Capital, the Transferor or
the Directing Holder, as applicable, with respect to each Mortgage
Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon
and not distributed on the date on which the related repurchase was
effected, and to pay to the applicable Person any Advances to the
extent specified in the definition of Purchase Price;
(vi) to make distributions to Certificateholders pursuant to
Article V;
(vii) to make payment to itself and others pursuant to any
provision of this Agreement;
(viii) to withdraw funds deposited in error in the Certificate
Account;
(ix) to clear and terminate the Certificate Account pursuant to
Section 7.02; and
(x) to reimburse the Servicer for such amounts as are due
thereto under the Servicing Agreement and have not been retained by
or paid to the Servicer, to the extent provided in the Servicing
Agreement.
In connection with withdrawals pursuant to subclauses (i), (ii),
(iii), and (v) above, the Trustee's, the Servicer's or such other specified
Person's entitlement thereto is limited to collections or other recoveries on
the related Mortgage Loan. The Trustee shall therefore keep and maintain a
separate accounting for each Mortgage Loan for the purpose of justifying any
withdrawal from the Certificate Account it maintains pursuant to such
subclause (i), (ii), (iii), and (v).
The Trustee may invest, or cause to be invested, funds held in the
Certificate Account at the direction of ▇▇▇▇▇▇ Capital, which funds, if
invested, shall be invested in Eligible Investments (which may be obligations
of the Trustee). All such investments must be payable on demand or mature no
later than one Business Day prior to the next Distribution Date, and shall not
be sold or disposed of prior to their maturity. All such Eligible Investments
will be made in the name of the Trustee (in its capacity as such) or its
nominee. All income and gain realized from any such investment shall be
compensation for ▇▇▇▇▇▇ Capital and shall be subject to its withdrawal on
order from time to time. The amount of any losses incurred in respect of any
such investments shall be paid by the Trustee for deposit in the Certificate
Account out of its own funds, without any right of reimbursement therefor,
immediately as realized. In the event that ▇▇▇▇▇▇ Capital does not provide
written direction to the Trustee pursuant to this Section, all funds on
deposit in the Certificate Account shall be invested in a money market or
common trust fund as described in paragraph (ix) of the definition of
"Eligible Investment" set forth in Article I.
Section 4.05. Determination of LIBOR. (a) If the outstanding
Certificates include any LIBOR Certificates, then on each LIBOR Determination
Date the Trustee shall determine LIBOR on the basis of the offered LIBOR
quotations of the Reference Banks as of 11:00 a.m. London time on such LIBOR
Determination Date as follows:
(i) If on any LIBOR Determination Date two or more of the
Reference Banks provide such offered quotations, LIBOR for the next
Accrual Period will be the arithmetic mean of such offered
quotations (rounding such arithmetic mean if necessary to the
nearest five decimal places);
(ii) If on any LIBOR Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Accrual Period will be whichever is the higher of (x) LIBOR as
determined on the previous LIBOR Determination Date or (y) the
Reserve Interest Rate. The "Reserve Interest Rate" will be either
(A) the rate per annum which the Trustee determines to be the
arithmetic mean (rounding such arithmetic mean if necessary to the
nearest five decimal places) of the one-month Eurodollar lending
rates that New York City banks selected by the Depositor are quoting
on the relevant LIBOR Determination Date to the principal London
offices of at least two leading banks in the London interbank market
or (B) in the event that the Trustee can determine no such
arithmetic mean, the lowest one-month Eurodollar lending rate that
the New York City banks selected by the Depositor are quoting on
such LIBOR Determination Date to leading European banks; and
(iii) If on any LIBOR Determination Date the Trustee is
required but is unable to determine the Reserve Interest Rate in the
manner provided in paragraph (ii) above, LIBOR for the next Accrual
Period will be LIBOR as determined on the previous LIBOR
Determination Date or, in the case of the first LIBOR Determination
Date, the Initial LIBOR Rate.
(b) The establishment of LIBOR by the Trustee and the Trustee`s
subsequent calculation of the Certificate Interest Rate (or Rates) applicable
to the LIBOR Certificates for the relevant Accrual Period, in the absence of
manifest error, will be final and binding. In all cases, the Trustee may
conclusively rely on quotations of LIBOR for the Reference Banks as such
quotations appear on the display designated "LIUS01M" on the Bloomberg
Financial Markets Commodities News and on other quotations, if any, obtained
by the Trustee pursuant to clauses (a)(ii) and (d) of this Section 4.05.
(c) As used herein, "Reference Banks" shall mean four leading banks
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) whose quotations appear on the "Bloomberg Screen LIUS01M Index
Page" (as described in the definition of LIBOR) on the applicable LIBOR
Determination Date and (iii) which have been designated as such by the
Depositor and are able and willing to provide such quotations to the Depositor
on each LIBOR Determination Date. The Reference Banks initially shall be:
Barclay's plc, Bank of Tokyo, National Westminster Bank and Trust Company and
Bankers Trust Company. If any of the initial Reference Banks should be removed
from the Bloomberg Screen LIUS01M Index Page or in any other way fail to meet
the qualifications of a Reference Bank, the Depositor shall use its best
efforts to designate alternate Reference Banks.
(d) If (i) with respect to any LIBOR Determination Date LIBOR is
determined pursuant to clause (a)(iii) of this Section and (ii) on the next
succeeding LIBOR Determination Date LIBOR would, without giving effect to this
paragraph (d), be determined pursuant to such clause (a)(iii), then the
Trustee shall select an alternative interest rate index over which the Trustee
has no control that is used for determining Eurodollar lending rates and is
calculated and published (or otherwise made available) by an independent third
party, and such alternative interest rate index shall constitute LIBOR for all
purposes hereof.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01. Distributions Generally. (a) Subject to Section 7.01
respecting the final distribution on the Certificates, on each Distribution
Date the Trustee or the Paying Agent shall make distributions in accordance
with this Article V. Such distributions shall be made by check mailed to each
Certificateholder's address as it appears on the Certificate Register of the
Certificate Registrar (which shall initially be the Trustee) or, upon written
request made to the Trustee at least five Business Days prior to the related
Record Date, by wire transfer in immediately available funds to an account
specified in the request and at the expense of such Certificateholder;
provided, however, that the final distribution in respect of any Certificate
shall be made only upon presentation and surrender of such Certificate at the
Corporate Trust Office. Wire transfers will be made at the expense of the
Holder requesting such wire transfer by deducting a wire transfer fee from the
related distribution. Notwithstanding such final payment of principal of any
of the Certificates, each Residual Certificate will remain outstanding until
the termination of each REMIC and the payment in full of all other amounts due
with respect to the Residual Certificates and at such time such final payment
in retirement of any Residual Certificate will be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office. If any
payment required to be made on the Certificates is to be made on a day that is
not a Business Day, then such payment will be made on the next succeeding
Business Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Class Principal Amounts or initial
Class Notional Amounts (or Percentage Interests).
Section 5.02. Distributions from the Certificate Account. (a) On each
Distribution Date the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account the Total Distribution Amount and
shall allocate such amount to the interests issued in respect of REMIC 1,
REMIC 2 and REMIC 3 and shall distribute such amount as specified in this
Section.
(b) On each Distribution Date, the Trustee shall distribute the
Interest Remittance Amount for such date in the following order of priority:
(i) to the Trustee, the Trustee Fee for such Distribution Date;
(ii) to the holders of each Class of Senior Certificates,
Current Interest for such Class and such Distribution Date and any
Carryforward Interest for such Class and such Distribution Date;
provided, however, that any shortfall in available amounts shall be
allocated among such Classes in proportion to the amount of Current
Interest and Carryforward Interest that would otherwise be
distributable thereon;
(iii) to the Class M1 Certificates, Current Interest for such
Class and such Distribution Date;
(iv) to the Class M2 Certificates, Current Interest for such
Class and such Distribution Date;
(v) to the Class B Certificates, Current Interest for such
Class and such Distribution Date; and
(vi) to the Loss Mitigation Advisor, the Loss Mitigation
Advisor's Fee for such Distribution Date;
(vii) for application as part of Monthly Excess Cashflow for
such Distribution Date, as provided in subsection (d) of this
Section, any Interest Remittance Amount remaining after application
pursuant to clauses (i) through (vi) above.
(c) On each Distribution Date, the Trustee shall distribute the
Principal Distribution Amount for such date as follows:
(i) On each Distribution Date (a) prior to the Stepdown Date or
(b) with respect to which a Trigger Event has occurred, until the
aggregate Certificate Principal Amount of all of the Certificates
equals the Target Amount for such Distribution Date, the Trustee
shall distribute the Principal Distribution Amount in the following
order of priority:
(A) to the Class A1 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(B) to the Class M1 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(C) to the Class M2 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(D) to the Class B Certificates, until the Class Principal
Amount of such Class has been reduced to zero; and
(E) for application as part of Monthly Excess Cashflow for
such Distribution Date, as provided in subsection (d) of this
Section, any Principal Distribution Amount remaining after
application pursuant to clauses (A) through (D) above.
Any Principal Distribution Amount remaining after the Target Amount
is achieved will be applied as part of Monthly Excess Cashflow for
such Distribution Date as provided in subsection (d) of this Section.
(ii) On each Distribution Date (a) on or after the Stepdown
Date and (b) with respect to which a Trigger Event has not occurred,
the Trustee shall distribute the Principal Distribution Amount for
such date in the following order of priority:
(1) so long as the Class M1, Class M2 or Class B
Certificates are outstanding, to the Class A1 Certificates, an
amount equal to the lesser of (x) the Principal Distribution
Amount for such Distribution Date and (y) the Senior Principal
Distribution Amount for such date, in each case until the Class
Principal Amount of such Class has been reduced to zero;
otherwise to the Class A1 Certificates, the Principal
Distribution Amount for such Distribution Date;
(2) to the Class M1 Certificates, an amount equal to the
lesser of (x) the amount, if any, by which (a) the Principal
Distribution Amount for such Distribution Date exceeds (b) the
amount distributed to the Class A1 Certificates on such date
pursuant to clause (1) above, and (y) the M1 Principal
Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to zero;
(3) to the Class M2 Certificates, an amount equal to the
lesser of (x) the amount, if any, by which (a) the Principal
Distribution Amount for such Distribution Date exceeds (b) the
amount distributed to the Class A1 and Class M1 Certificates on
such date pursuant to clauses (1) and (2) above, and (y) the M2
Principal Distribution Amount for such date, until the Class
Principal Amount of such Class has been reduced to zero;
(4) to the Class B Certificates, an amount equal to the
lesser of (x) the amount, if any, by which (a) the Principal
Distribution Amount for such Distribution Date exceeds (b) the
amount distributed to the Class A1, Class M1 and Class M2
Certificates on such date pursuant to clauses (1) through (3)
above, and (y) the B Principal Distribution Amount for such
date, until the Class Principal Amount of such Class has been
reduced to zero; and
(5) for application as part of Monthly Excess Cashflow for
such Distribution Date, as provided in subsection (d) of this
Section, any Principal Distribution Amount remaining after
application pursuant to clauses (1) through (4) above.
Notwithstanding the foregoing, on any Distribution Date on which the
Class Principal Amount of each Class of Certificates having a higher
priority of distribution has been reduced to zero, any remaining
Principal Distribution Amount will be distributed to the remaining
Certificates in the order of priority set forth above until the Class
Principal Amount of each such Class has been reduced to zero.
(d) On each Distribution Date, the Trustee shall distribute the
Monthly Excess Cashflow for such date in the following order of priority:
(i) for each Distribution Date occurring prior to the
Distribution Date in December 2001, until the aggregate Certificate
Principal Amount of all of the Certificates equals the Total Loan
Balance for such Distribution Date:
(1) after giving effect to distribution of the Principal
Distribution Amount on such Distribution Date pursuant to
Section 5.02(c), to the Class A1 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(2) to the Class M1 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(3) to the Class M2 Certificates, until the Class
Principal Amount of such Class has been reduced to zero; and
(4) to the Class B Certificates, until the Class Principal
Amount of such Class has been reduced to zero;
(ii) for each Distribution Date occurring (a) on or after the
Distribution Date in December 2001 but before the Stepdown Date or
(b) on or after the Stepdown Date but for which a Trigger Event has
occurred, in each case until the aggregate Certificate Principal
Amount of all of the Certificates equals the Target Amount for such
date, to the extent of Monthly Excess Interest for such Distribution
Date, to the Certificates, in the following order of priority:
(1) to the Class A1 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(2) to the Class M1 Certificates, until the Class
Principal Amount of such Class has been reduced to zero;
(3) to the Class M2 Certificates, until the Class
Principal Amount of such Class has been reduced to zero; and
(4) to the Class B Certificates, until the Class Principal
Amount of such Class has been reduced to zero;
(iii) for each Distribution Date occurring on or after the
Stepdown Date and for which a Trigger Event is not in effect,
(1) so long as the Class M1, Class M2, or Class B
Certificates are outstanding, to the Class A1 Certificates, an
amount equal to the lesser of (x) Monthly Excess Cashflow for
such Distribution Date and (y) the Senior Principal
Distribution Amount remaining unpaid after distribution of the
Principal Distribution Amount on such date, in each case until
the Class Principal Amount of such Class has been reduced to
zero; otherwise, to the Class A1 Certificates, the Principal
Distribution Amount for such Distribution Date;
(2) to the Class M1 Certificates, an amount equal to the
lesser of (x) the amount, if any, by which (a) Monthly Excess
Cashflow for such Distribution Date exceeds (b) the amount
distributed to the Class A1 Certificates on such date pursuant
to clause (1) above, and (y) the M1 Principal Distribution
Amount for such date remaining unpaid after distribution of the
Principal Distribution Amount on such date, until the Class
Principal Amount of such Class has been reduced to zero;
(3) to the Class M2 Certificates, an amount equal to the
lesser of (x) the amount, if any, by which (a) Monthly Excess
Cashflow for such Distribution Date exceeds (b) the amount
distributed to the Class A1 and Class M1 Certificates on such
date pursuant to clauses (1) and (2) above, respectively, and
(y) the M2 Principal Distribution Amount for such date
remaining unpaid after distribution of the Principal
Distribution Amount on such date, until the Class Principal
Amount of such Class has been reduced to zero;
(4) to the Class B Certificates, an amount equal to the
lesser of (x) the amount, if any, by which (a) Monthly Excess
Cashflow for such Distribution Date exceeds (b) the amount
distributed to the Class A1, Class M1 and Class M2 Certificates
on such date pursuant to clauses (1), (2) and (3) above,
respectively, and (y) the B Principal Distribution Amount for
such date remaining unpaid after distribution of the Principal
Distribution Amount on such date, until the Class Principal
Amount of such Class has been reduced to zero;
(iv) to the Class A1 Certificates, any applicable Basis Risk
Shortfall and Unpaid Basis Risk Shortfall for such date, as required
by Section 5.06 of this Agreement;
(v) to the Class M1 Certificates, any applicable Basis Risk
Shortfall and Unpaid Basis Risk Shortfall for such date, as required
by Section 5.06 of this Agreement;
(vi) to the Class M2 Certificates, any applicable Basis Risk
Shortfall and Unpaid Basis Risk Shortfall for such date, as required
by Section 5.06 of this Agreement;
(vii) to the Class B Certificates, any applicable Basis Risk
Shortfall and Unpaid Basis Risk Shortfall for such date, as required
by Section 5.06 of this Agreement;
(viii) to the Class M1 Certificates, any Carryforward Interest
for such Class and such date;
(ix) to the Class M1 Certificates, any Deferred Amount for such
Class and such date;
(x) to the Class M2 Certificates, any Carryforward Interest for
such Class and such date;
(xi) to the Class M2 Certificates, any Deferred Amount for such
Class and such date;
(xii) to the Class B Certificates, any Carryforward Interest
for such Class and such date;
(xiii) to the Class B Certificates, any Deferred Amount for
such Class and such date;
(xiv) to the Basis Risk Reserve Fund, an amount sufficient to
cause the balance in the Basis Risk Reserve Fund to equal the
Required Reserve Fund Amount for such Distribution Date;
(xv) to the Class X Certificate, the Class X Distributable
Amount for such Distribution Date, together with any amounts
withdrawn from the Basis Risk Reserve Fund for distribution to such
Class X Certificate pursuant to Section 5.06 on such date; and
(xvi) to the Class R Certificate, any amount remaining on such
date after application pursuant to clauses (i) through (xv) above.
(e) On each Distribution Date, an amount equal to the aggregate of
all Prepayment Premiums collected during the preceding Prepayment Period shall
be distributed to IBF Special Purpose Corporation VII, or its assignee as set
forth in a written notice provided to the Trustee.
Section 5.03. Allocation of Losses. On each Distribution Date, the
Class Principal Amounts of the Class M1, Class M2 and Class B Certificates
will be reduced by the amount of any Applied Loss Amount for such date, in the
following order of priority:
(i) `to the Class B Certificates, until the Class Principal
Amount thereof has been reduced to zero;
(ii) to the Class M2 Certificates, until the Class Principal
Amount thereof has been reduced to zero; and
(iii) to the Class M1 Certificates, until the Class Principal
Amount thereof has been reduced to zero.
Section 5.04. Advances by Trustee. (a) Advances shall be made in
respect of each Remittance Date as provided in the Servicing Agreement and
herein. If on any Determination Date the Servicer determines that any
Scheduled Payments due during the related Collection Period (other than
Balloon Payments) have not been received, the Servicer will advance such
amount, less an amount, if any, to be set forth in an Officer's Certificate to
be delivered to the Trustee on such Determination Date, in accordance with the
terms of the Servicing Agreement. If the Servicer determines that an Advance
is required, it will on the Remittance Date immediately following such
Determination Date remit to the Trustee from its own funds for deposit in the
Certificate Account, in accordance with the terms of the Servicing Agreement,
immediately available funds in an amount equal to such Advance. The Servicer
shall be entitled to be reimbursed from the Certificate Account for all
Advances made by it as provided in Section 4.04.
(b) In the event that the Servicer fails for any reason to make an
Advance required to be made pursuant to the Servicing Agreement on or before
the Remittance Date, the Trustee shall, in its capacity as successor Servicer,
on or before the related Distribution Date, deposit in the Certificate Account
an amount equal to the excess of (a) Advances required to be made by the
Servicer that would have been deposited in such Certificate Account over (b)
the amount of any Advance made by the Servicer with respect to such
Distribution Date; provided, however, that the Trustee shall be required to
make such Advance only if it is not prohibited by law from doing so and it has
determined that such Advance would be recoverable from amounts to be received
with respect to such Mortgage Loan, including late payments, Liquidation
Proceeds, Insurance Proceeds, or otherwise. The Trustee shall be entitled to
be reimbursed from the Certificate Account for Advances made by it pursuant to
this Section 5.04 as if it were the Servicer.
Section 5.05. [Reserved].
Section 5.06. Basis Risk Reserve Fund. (a) On the Closing Date, the
Trustee shall establish and maintain in its name, in trust for the benefit of
the holders of the Class A1, Class M1, Class M2 and Class B Certificates, a
Basis Risk Reserve Fund, into which the Depositor shall deposit $1,000. The
Basis Risk Reserve Fund shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled
with, any other moneys, including, without limitation, other moneys of the
Trustee held pursuant to this Agreement.
(b) On each Distribution Date, the Trustee shall transfer, to the
extent of amounts available pursuant to Section 5.02(d)(iv)-(vii), to the
Basis Risk Reserve Fund an amount equal to the aggregate of the Basis Risk
Shortfalls and the aggregate of the Unpaid Basis Risk Shortfalls for all
Classes of Certificates for such Distribution Date. In addition, on each
Distribution Date, the Trustee shall transfer, to the extent of amounts
available pursuant to Section 5.02(d)(xiv), an amount sufficient to cause the
balance in the Basis Risk Reserve Fund to equal the Required Reserve Fund
Amount for such Distribution Date. On each Distribution Date, the Trustee
shall withdraw amounts from the Basis Risk Reserve Fund to make the
distributions required pursuant to Section 5.02(d)(iv) -(vii).
(c) Funds in the Basis Risk Reserve Fund shall be invested in
Eligible Investments. Any earnings on such amounts shall be distributed to the
Class X Certificate pursuant to Section 5.02(d)(xv). The Class X Certificate
shall evidence ownership of the Basis Risk Reserve Fund for federal income tax
purposes and the Holder thereof shall direct the Trustee, in writing, as to
investment of amounts on deposit therein. The Class X Certificateholder shall
be liable for any losses incurred on such investments. In the absence of
written instructions from the Class X Certificateholder as to investment of
funds on deposit in the Basis Risk Reserve Fund, such funds shall be invested
in the ▇▇▇▇▇ Fargo Prime Investment Money Market Fund. Any amounts on deposit
in the Basis Risk Reserve Fund in excess of the Required Reserve Fund Amount
on any Distribution Date shall be distributed to the Class X Certificate on
such Distribution Date pursuant to Section 5.02(d)(xv).
(d) Upon termination of the Trust Fund, any amounts remaining in the
Basis Risk Reserve Fund shall be distributed to the Class X Certificateholder
pursuant to Section 5.02(d)(xiv).
ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01. Duties of Trustee. (a) The Trustee, except during the
continuance of an Event of Default, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. Any permissive
right of the Trustee provided for in this Agreement shall not be construed as
a duty of the Trustee. If an Event of Default has occurred and has not
otherwise 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 their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Servicer to the Trustee, and shall not be
required to recalculate or verify any numerical information furnished to the
Trustee pursuant to this Agreement or the Servicing Agreement.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful
misconduct. Notwithstanding anything in this Agreement to the contrary, the
Trustee shall not be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits).
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) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates as
provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default (other than
resulting from a failure by the Servicer (i) to remit funds (or to
make Advances) or (ii) to furnish information to the Trustee when
required to do so) unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Holders of
the Certificates and this Agreement;
(iii) No provision of this Agreement shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; and
(iv) The Trustee shall not be responsible for any act or
omission of the Servicer, the Depositor or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall promptly remit to the Servicer upon receipt
any such complaint, claim, demand, notice or other document (i) which is
delivered to the Corporate Trust Office of the Trustee, (ii) of which a
Responsible Officer has actual knowledge, and (iii) which contains information
sufficient to permit the Trustee to make a determination that the real
property to which such document relates is a Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests
aggregating not less than 25% as 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.
(f) The Trustee shall not be required to perform services under this
Agreement, or 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 timely payment of its fees and expenses or the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(g) Subject to Section 4.04, the Trustee shall not be held liable by
reason of any insufficiency in any account (including without limitation the
Certificate Amount) held by or on behalf of the Trustee resulting from any
investment loss on any Eligible Investment included therein (except to the
extent that the Trustee is the obligor and has defaulted thereon).
(h) Except as otherwise provided herein, the Trustee shall have no
duty (A) to see to any recording, filing, or depositing of this Agreement or
any agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in the
Certificate Account, or (D) to confirm or verify the contents of any reports
or certificates of the Servicer delivered to the Trustee pursuant to the
Servicing Agreement believed by the Trustee to be genuine and to have been
signed or presented by the proper party or parties.
Section 6.02. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 6.01:
(i) The Trustee may request, and may rely and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) The Trustee may consult with counsel and any advice of its
counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, 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 (provided the same
appears regular on its face), unless requested in writing to do so
by Holders of at least a majority in Class Principal Amount or Class
Notional Amount (or Percentage Interest) of each Class of
Certificates; provided, however, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such expense or
liability or payment of such estimated expenses as a condition to
proceeding. The reasonable expense thereof shall be paid by the
Holders requesting such investigation;
(v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians or attorneys, which agents, custodians or
attorneys shall have any and all of the rights, powers, duties and
obligations of the Trustee conferred on them by such appointment,
provided that the Trustee shall continue to be responsible for its
duties and obligations hereunder to the extent provided herein, and
provided further that the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney
appointed with due care by the Trustee;
(vi) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto, in each case at the request, order or direction of any of
the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(vii) 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; and
(viii) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby
or the powers granted hereunder.
Section 6.03. Trustee Not Liable for Certificates. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or of
the Certificates (other than the certificate of authentication on the
Certificates) or of any Mortgage Loan, or related document save that the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally, and (B)
general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law. The Trustee shall not be
accountable for the use or application by the Depositor of funds paid to the
Depositor in consideration of the assignment of the Mortgage Loans to the
Trust Fund by the Depositor or for the use or application of any funds
deposited into the Certificate Account, any Escrow Account or any other fund
or account maintained with respect to the Certificates. The Trustee shall not
be responsible for the legality or validity of this Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates
issued or intended to be issued hereunder. Except as otherwise provided
herein, 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.
Section 6.04. Trustee May Own Certificates. The Trustee and any
Affiliate or agent of the Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates and may transact banking and trust
business with the other parties hereto with the same rights it would have if
it were not Trustee or such agent.
Section 6.05. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be (i) an institution insured by the FDIC and
(ii) a corporation or national banking association, organized and doing
business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
or national banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 6.06.
Section 6.06. Resignation and Removal of Trustee. (a) The Trustee may
at any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Depositor. Upon receiving such notice of
resignation, the Depositor will promptly appoint a successor trustee by
written instrument, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and shall have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii)
a tax is imposed or threatened with respect to the Trust Fund by any state in
which the Trustee or the Trust Fund held by the Trustee is located, or (iv)
the continued use of the Trustee would result in a downgrading of the rating
by the Rating Agencies of any Class of Certificates with a rating, then the
Depositor shall remove the Trustee and appoint a successor trustee by written
instrument, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
(c) The Holders of more than 50% of the Class Principal Amount or
Class Notional Amount (or Percentage Interest) of each Class of Certificates
may at any time upon 30 days' written notice to the Trustee and to the
Depositor remove the Trustee by such written instrument, signed by such
Holders or their attorney-in-fact duly authorized, one copy of which
instrument shall be delivered to the Depositor and one copy to the Trustee so
removed, the Depositor shall thereupon use its best efforts to appoint a
mutually acceptable successor trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.07.
Section 6.07. Successor Trustee. (a) Any successor trustee appointed
as provided in Section 6.06 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as trustee herein. The predecessor trustee shall
deliver to the successor trustee (or assign to the Trustee its interest under
each Custodial Agreement, to the extent permitted thereunder) all Mortgage
Files and documents and statements related to each Mortgage File held by it
hereunder, and shall duly assign, transfer, deliver and pay over to the
successor trustee the entire Trust Fund, together with all necessary
instruments of transfer and assignment or other documents properly executed
necessary to effect such transfer and such of the records or copies thereof
maintained by the predecessor trustee in the administration hereof as may be
requested by the successor trustee and shall thereupon be discharged from all
duties and responsibilities under this Agreement. In addition, the predecessor
trustee shall execute and deliver such other instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the predecessor trustee 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. The expenses of
such mailing shall be borne by the predecessor trustee.
Section 6.08. Merger or Consolidation of Trustee. Any Person into
which the Trustee may be merged or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Persons succeeding to the business of the
Trustee, shall be the successor to the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided that
such Person shall be eligible under the provisions of Section 6.05.
Section 6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian. (a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Principal Amount or Class Notional Amount (or Percentage Interest)
of every Class of Certificates shall have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee, or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee has been advised by the Servicer that such separate trustee or
co-trustee is necessary or advisable) under the laws of any state in which a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders and shall have such powers, rights and remedies as
shall be specified in the instrument of appointment; provided, however, that
no such appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee. The obligation of the Trustee to make Advances pursuant
to Section 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of moneys
shall be exercised solely by the Trustee;
(ii) all other 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,
co-trustee, or custodian jointly, except to the extent that under
any law of any jurisdiction in which any particular act or acts are
to be performed 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, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing more than
50% of the Aggregate Voting Interests of the Certificates may at any
time accept the resignation of or remove any separate trustee,
co-trustee or custodian, so appointed by it or them, if such
resignation or removal does not violate the other terms of this
Agreement.
(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, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. 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, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian 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.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Depositor shall pay the reasonable compensation of the
co-trustees (which compensation shall not reduce any compensation payable to
the Trustee under such Section).
Section 6.10. Authenticating Agents. (a) The Trustee may appoint one
or more Authenticating Agents which shall be authorized to act on behalf of
the Trustee in authenticating Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.10. No Authenticating Agent shall have
responsibility or liability for any action taken by it as such at the
direction of the Trustee. Any Authenticating Agent shall be entitled to
reasonable compensation for its services and, if paid by the Trustee, it shall
be a reimbursable expense pursuant to Section 6.12.
Section 6.11. Indemnification of Trustee. The Trustee and its
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense incurred without
negligence or willful misconduct on their part, arising out of, or in
connection with, the acceptance or administration of the trusts created
hereunder, including the costs and expenses of defending themselves against
any claim in connection with the exercise or performance of any of their
powers or duties hereunder, provided that:
(i) with respect to any such claim, the Trustee shall have
given the Depositor and the Holders written notice thereof promptly
after the Trustee shall have knowledge thereof;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with the Depositor in
preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section
6.11, the Trust Fund shall not be liable for settlement of any such
claim by the Trustee entered into without the prior consent of the
Depositor, which consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee and shall be
construed to include, but not be limited to any loss, liability or expense
under any environmental law.
Section 6.12. Fees and Expenses of Trustee. In addition to the
Trustee Fees, the Trustee will receive compensation and reimbursement or
payment of its expenses hereunder and under each Custodial Agreement as
provided herein.
Section 6.13. Collection of Monies. Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or
receivable by the Trustee pursuant to this Agreement. The Trustee shall hold
all such money and property received by it as part of the Trust Fund and shall
distribute it as provided in this Agreement. If the Trustee shall not have
timely received amounts to be remitted with respect to the Mortgage Loans from
the Servicer, the Trustee shall request the Servicer to make such distribution
as promptly as practicable or legally permitted. If the Trustee shall
subsequently receive any such amount, it may withdraw such request.
Section 6.14. Trustee To Act; Appointment of Successor.
(a) If an Event of Default shall occur, then, in each and every case,
subject to applicable law, so long as any such Event of Default shall not have
been remedied within any period of time prescribed by the Servicing Agreement,
the Trustee, by notice in writing to the Servicer may, and shall, if so
directed by Certificateholders evidencing more than 50% of the Aggregate
Voting Interests, terminate all of the rights and obligations of the Servicer
under the Servicing Agreement and in and to the Mortgage Loans and the
proceeds thereof. Within 90 days following the receipt by the Servicer of such
written notice, all authority and power of the Servicer, and only in its
capacity as Servicer under the Servicing Agreement, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee
pursuant to and under the terms of the Servicing Agreement; and the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the
defaulting Servicer as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents or otherwise.
If any Event of Default shall occur, the Trustee, upon becoming aware
of the occurrence thereof, shall promptly notify the Rating Agencies of the
nature and extent of such Event of Default. The Trustee shall immediately give
written notice to the Servicer upon such Servicer's failure to remit funds on
the Remittance Date.
(b) On and after the time the Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Servicer evidenced by an Opinion of Counsel
pursuant to the applicable provisions of the Servicing Agreement, the Trustee,
unless another servicer shall have been appointed, shall be the successor in
all respects to the Servicer in its capacity as such under this Agreement and
the transactions set forth or provided for herein and shall have all the
rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Servicer
under the Servicing Agreement, including the obligation to make Advances;
provided, however, that any failure to perform such duties or responsibilities
caused by the Servicer's failure to provide information required by the
Servicing Agreement shall not be considered a default by the Trustee
hereunder. In addition, the Trustee shall have no responsibility for any act
or omission of the Servicer prior to the issuance of any notice of
termination. In the Trustee's capacity as such successor, the Trustee shall
have the same limitations on liability herein granted to the Servicer. As
compensation therefor, the Trustee shall be entitled to receive all
compensation payable to the Servicer under the Servicing Agreement, including
the applicable portion of the Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor servicer as are set forth in
the Servicing Agreement, as the successor to such Servicer in the assumption
of all of the responsibilities, duties or liabilities of a servicer, like the
Servicer. Any entity designated by the Trustee as a successor servicer may be
an Affiliate of the Trustee; provided, however, that, unless such Affiliate
meets the net worth requirements and other standards set forth herein for a
successor servicer, the Trustee, in its individual capacity shall agree, at
the time of such designation, to be and remain liable to the Trust Fund for
such Affiliate's actions and omissions in performing its duties hereunder. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
no such compensation shall be in excess of that permitted to the Servicer. The
Trustee and such successor shall take such actions, consistent with this
Agreement, as shall be necessary to effectuate any such succession and may
make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Trustee shall be entitled
to be reimbursed from the Servicer only if the Servicer is terminated for
cause (or by the Trust Fund if the Servicer is unable to fulfill its
obligations hereunder) for all costs associated with the transfer of servicing
from the predecessor servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be
required by the Trustee to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Trustee to service the Mortgage
Loans properly and effectively. The Servicer shall cooperate with the Trustee
and any successor servicer in effecting the termination of the Servicer's
responsibilities and rights hereunder including, without limitation, notifying
Mortgagors of the assignment of the servicing functions and providing the
Trustee and successor servicer, as applicable, all documents and records in
electronic or other form reasonably requested by it to enable it to assume the
Servicer's functions hereunder and the transfer to the Trustee or such
successor servicer, as applicable, all amounts which shall at the time be or
should have been deposited by the Servicer in the Certificate Account and any
other account or fund maintained with respect to the Certificates or
thereafter be received with respect to the Mortgage Loans. Neither the Trustee
nor any other successor servicer shall be deemed to be in default hereunder 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, (ii)
the failure of the Servicer to cooperate as required by the Servicing
Agreement, (iii) the failure of the Servicer to deliver the Mortgage Loan data
to the Trustee as required by the Servicing Agreement or (iv) restrictions
imposed by any regulatory authority having jurisdiction over the Servicer.
(d) Notwithstanding the foregoing, the parties hereto agree that the
Trustee, in its capacity as successor Servicer, immediately will assume all of
the obligations of the Servicer to make Advances and the Trustee will assume
the other duties of the Servicer as soon as practicable, but in no event later
than 90 days after the Trustee becomes successor Servicer. Notwithstanding the
foregoing, the Trustee, in its capacity as successor Servicer, shall not be
responsible for the lack of information and/or documents that it cannot obtain
through reasonable efforts.
Section 6.15. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Event of
Default.
Section 6.16. Waiver of Defaults. More than 50% of the Aggregate
Voting Interests of Certificateholders may waive any default or Event of
Default by the Servicer in the performance of its obligations under the
Servicing Agreement, except that a default in the making of any required
deposit to the Certificate Account that would result in a failure of the
Trustee to make any required payment of principal of or interest on the
Certificates may only be waived with the consent of 100% of the affected
Certificateholders. Upon any such 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
thereon except to the extent expressly so waived.
Section 6.17. Notification to Holders. Upon termination of the
Servicer or appointment of a successor to the Servicer, in each case as
provided herein, the Trustee shall promptly mail notice thereof by first class
mail to the Certificateholders at their respective addresses appearing on the
Certificate Register. The Trustee shall also, within 45 days after the
occurrence of any Event of Default known to the Trustee, give written notice
thereof to Certificateholders, unless such Event of Default shall have been
cured or waived prior to the issuance of such notice and within such 45-day
period.
Section 6.18. Directions by Certificateholders and Duties of Trustee
During Event of Default. Subject to the provisions of Section 8.01 hereof,
during the continuance of any Event of Default, Holders of Certificates
evidencing not less than 25% of the Class Principal Amount or Class Notional
Amount (or Percentage Interest) of each Class of Certificates affected thereby
may direct 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; provided, however, that the Trustee
shall be under no obligation to pursue any such remedy, or to exercise any of
the trusts or powers vested in it by this Agreement (including, without
limitation, (i) the conducting or defending of any administrative action or
litigation hereunder or in relation hereto and (ii) the terminating of the
Servicer or any successor servicer from its rights and duties as servicer
under the Servicing Agreement) at the request, order or direction of any of
the Certificateholders, unless such Certificateholders shall have offered to
the Trustee reasonable security or indemnity against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided further,
that, subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, in accordance
with an Opinion of Counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith determines
that the action or proceeding so directed would involve it in personal
liability or be unjustly prejudicial to the non-assenting Certificateholders.
Section 6.19. Action Upon Certain Failures of the Servicer and Upon
Event of Default. In the event that the Trustee shall have actual knowledge of
any action or inaction of the Servicer that would become an Event of Default
upon the Servicer's failure to remedy the same after notice, the Trustee shall
give notice thereof to the Servicer.
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01. Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase or Liquidation of All Mortgage Loans. (a) The obligations and
responsibilities of the Trustee created hereby (other than the obligation of
the Trustee to make payments to Certificateholders as set forth in Section
7.02) shall terminate on the earlier of (i) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the sale of the property held by the
Trust Fund in accordance with Section 7.01(b); provided, however, that in no
event shall the Trust Fund created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St. James's,
living on the date hereof. Any termination of the Trust Fund shall be carried
out in such a manner so that the termination of each REMIC included therein
shall qualify as a "qualified liquidation" under the REMIC Provisions.
(b) On any Distribution Date occurring on or after the date on which
the Total Loan Balance is less than 10% of the Cut-off Date Total Loan
Balance, the Class X Certificateholder has the option to cause the Trust Fund
to adopt a plan of complete liquidation pursuant to Section 7.03(a)(i) hereof
to sell all of its property. Upon exercise of such option, the property of the
Trust Fund shall be sold to the Class X Certificateholder at a price (the
"Termination Price") equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan on the day of such purchase plus interest
accrued thereon at the applicable Mortgage Rate with respect to any Mortgage
Loan to the Due Date in the Collection Period immediately preceding the
related Distribution Date to the date of such repurchase and (ii) the fair
market value of any REO Property and any other property held by any REMIC,
such fair market value to be determined by an appraiser or appraisers mutually
agreed upon by the Servicer and the Trustee. The Servicer (or the Trustee, if
applicable) shall be reimbursed from the Termination Price for any Mortgage
Loan or related REO Property for any Advances made or other amounts advanced
with respect to the Mortgage Loans that are reimbursable to the Servicer under
this Agreement or the Servicing Agreement (or to the Trustee hereunder),
together with any accrued and unpaid compensation due to the Servicer
hereunder or thereunder.
Section 7.02. Procedure Upon Termination of Trust Fund. (a) Notice of
any termination pursuant to the provisions of Section 7.01, specifying the
Distribution Date upon which the final distribution shall be made, shall be
given promptly by the Trustee by first class mail to Certificateholders mailed
upon (x) the sale of all of the property of the Trust Fund by the Trustee
pursuant to Section 7.01(b) or (y) upon the final payment or other liquidation
of the last Mortgage Loan or REO Property in the Trust Fund. Such notice shall
specify (A) the Distribution Date upon which final distribution on the
Certificates of all amounts required to be distributed to Certificateholders
pursuant to Section 5.02 will be made upon presentation and surrender of the
Certificates at the Corporate Trust Office, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein specified. The Trustee shall give such
notice to the Certificate Registrar at the time such notice is given to
Holders of the Certificates. Upon any such termination, the duties of the
Certificate Registrar with respect to the Certificates shall terminate and the
Trustee shall terminate the Certificate Account and any other account or fund
maintained with respect to the Certificates, subject to the Trustee's
obligation hereunder to hold all amounts payable to Certificateholders in
trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Trustee
shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to
a Certificateholder due to such Certificateholder's failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with this Section.
Section 7.03. Additional Trust Fund Termination Requirements. (a) Any
termination of the Trust Fund shall be effected in accordance with the
following additional requirements, unless the Trustee seeks (at the request of
the party exercising the option to purchase all of the Mortgage Loans pursuant
to Section 7.01(b)), and subsequently receives, an Opinion of Counsel (at the
expense of such requesting party), addressed to the Trustee to the effect that
the failure of the Trust Fund to comply with the requirements of this Section
7.03 will not (I) result in the imposition of taxes on any REMIC under the
REMIC Provisions or (II) cause any REMIC established hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the final
payment on the Certificates, upon notification by the Class X
Certificateholder or the Depositor that it intends to exercise its
option to cause the termination of the Trust Fund, the Trustee shall
adopt a plan of complete liquidation of the Trust Fund on behalf of
each REMIC, meeting the requirements of a qualified liquidation
under the REMIC Provisions;
(ii) Any sale of the assets of the Trust Fund pursuant to
Section 7.02 shall be a sale for cash and shall occur at or after
the time of adoption of such a plan of complete liquidation and
prior to the time of making of the final payment on the
Certificates;
(iii) On the date specified for final payment of the
Certificates, the Trustee shall make final distributions of
principal and interest on the Certificates in accordance with
Section 5.02 and, after payment of, or provision for any outstanding
expenses, distribute or credit, or cause to be distributed or
credited, to the Holders of the Residual Certificates all cash on
hand after such final payment (other than cash retained to meet
claims), and the Trust Fund (and each REMIC) shall terminate at that
time; and
(iv) In no event may the final payment on the Certificates or
the final distribution or credit to the Holders of the Residual
Certificates be made after the 89th day from the date on which the
plan of complete liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take such action as may be necessary to
adopt a plan of complete liquidation of the related REMIC and (ii) agrees to
take such other action as may be necessary to adopt a plan of complete
liquidation of the related REMIC, which authorization shall be binding upon
all successor Residual Certificateholders.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01. Limitation on Rights of Holders. (a) The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of this Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder,
shall have any right to vote 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.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing not less than 25% of the
Class Principal Amount or Class Notional Amount (or Percentage Interest) of
Certificates of each Class affected thereby shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding and no direction
inconsistent with such written request has been given such Trustee during such
sixty-day period by such Certificateholders; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 8.02. Access to List of Holders. (a) If the Trustee is not
acting as Certificate Registrar, the Certificate Registrar will furnish or
cause to be furnished to the Trustee, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee in writing, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such Applicants reasonable
access during the normal business hours of the Trustee to the most recent list
of Certificateholders held by the Trustee or shall, as an alternative, send,
at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Certificate Registrar and the Trustee that neither the Depositor, the
Certificate Registrar nor the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 8.03. Acts of Holders of Certificates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee. Such instrument or
instruments (as the action embodies therein and evidenced thereby) are herein
sometimes referred to as an "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, nor the Depositor shall be
affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Trustee in reliance thereon, whether or not notation of such action is
made upon such Certificate.
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 9.01. Trustee To Retain Possession of Certain Insurance
Policies and Documents. The Trustee shall retain possession and custody of the
originals of the Primary Mortgage Insurance Policies or certificates of
insurance if applicable and any certificates of renewal as to the foregoing as
may be issued from time to time as contemplated by this Agreement. Until all
amounts distributable in respect of the Certificates have been distributed in
full, the Trustee (or the applicable custodian as directed by the Trustee)
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement.
Section 9.02. Preparation of Tax Returns and Other Reports. (a) The
Trustee shall prepare in accordance with the provisions of Article X, or cause
to be prepared on behalf of the Trust Fund, based upon information calculated
in accordance with this Agreement pursuant to instructions given by the
Depositor, and shall file, federal tax returns and appropriate state income
tax returns and such other returns as may be required by applicable law
relating to the Trust Fund, and shall forward copies to the Depositor of all
such returns and Form 1099 information and such other information within the
control of the Trustee as the Depositor may reasonably request in writing, and
shall forward to each Certificateholder such forms and furnish such
information within the control of the Trustee as are required by the Code and
the REMIC Provisions to be furnished to them, and will prepare, to the extent
that they are familiar with applicable state requirements, and will file,
annual reports (other than tax returns), if any, required by applicable state
authorities, will file copies of this Agreement with the appropriate state
authorities as may be required by applicable law, and will prepare and
disseminate to Certificateholders Form 1099 (or otherwise furnish information
within the control of the Trustee) to the extent required by applicable law.
(b) The Trustee shall prepare and file with the Internal Revenue
Service ("IRS"), on behalf of each of REMIC 1, REMIC 2 and REMIC 3, an
application for an employer identification number on IRS Form SS-4 or by any
other acceptable method and will also file the IRS form 8811. The Trustee,
upon receipt from the IRS of the Notice of Taxpayer Identification Number
Assigned, shall promptly forward copies of such notices to the Depositor.
(c) Within 15 days after each Distribution Date, the Trustee shall
file with the Commission via the Electronic Data Gathering and Retrieval
System (▇▇▇▇▇), a Form 8-K with a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
January 30, 2002, the Trustee shall, in accordance with industry standards,
file a Form 15 Suspension Notification with respect to the Trust Fund, if
applicable. Prior to March 30, 2002, the Trustee shall prepare or cause to be
prepared Form 10-Ks and Form 10-Qs (if necessary), or monthly reports on Form
8-K, in substance conforming to industry standards, on behalf of the Trust
Fund as may be required by applicable law, for filing with the Securities and
Exchange Commission (the "SEC"). The Depositor hereby grants to the Trustee a
limited power of attorney to execute and file each such document on behalf of
the Depositor. Such power of attorney shall continue until either the earlier
of (i) receipt by the Trustee from the Depositor of written termination of
such power of attorney and (ii) the termination of the Trust Fund. The
Depositor agrees to promptly furnish to the Trustee, from time to time upon
request, such further information, reports, and financial statements within
its control related to this Agreement and the Mortgage Loans as the Trustee
reasonably deems appropriate to prepare and file all necessary reports with
the Commission. The Trustee agrees to use its best commercial efforts to seek
to terminate such filing obligations after the period during which such
filings are required under the Securities and Exchange Act of 1934. The
Trustee shall have no responsibility to file any items other than those
specified in this section.
Section 9.03. Release of Mortgage Files. (a) Upon receipt from the
Servicer of a certification of a Servicing Officer stating that all amounts
received in connection with such payment that are required to be deposited in
the Certificate Account have been or will be so deposited (except in the case
of a Mortgage Loan as to which the related Mortgaged Property is located in
California, as to which a statement will suffice that the Servicer reasonably
expects that payment in full will be received promptly) the Trustee or the
applicable Custodian, shall promptly release the related Mortgage File to the
Servicer and the Trustee shall have no further responsibility with regard to
such Mortgage File. Upon any such payment in full, and the Servicer, to the
extent such authority is delegated to the Servicer under the Servicing
Agreement, is authorized, to give, as agent for the Trustee, as the mortgagee
under the Mortgage that secured the Mortgage Loan, an instrument of
satisfaction (or assignment of mortgage without recourse) regarding the
Mortgaged Property subject to the Mortgage, which instrument of satisfaction
or assignment, as the case may be, shall be delivered to the Person or Persons
entitled thereto against receipt therefor of such payment, it being understood
and agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the
Certificate Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with Accepted Servicing
Practices and the Servicing Agreement, the Trustee shall execute such
documents as shall be prepared and furnished to the Trustee by the Servicer
(in form reasonably acceptable to the Trustee) and as are necessary to the
prosecution of any such proceedings. The Trustee or the Custodian, shall, upon
request of the Servicer, and delivery to the Trustee or the applicable
Custodian, of a trust receipt signed by a Servicing Officer substantially in
the form of Exhibit C, release the related Mortgage File held in its
possession or control to the Servicer. Such trust receipt shall obligate the
Servicer to return the Mortgage File to the Trustee or Custodian, as
applicable, 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 herein above specified, the
trust receipt shall be released by the Trustee or the Custodian, as
applicable, to the Servicer.
ARTICLE X
REMIC ADMINISTRATION
Section 10.01. REMIC Administration. (a) REMIC elections as set forth
in the Preliminary Statement shall be made by the Trustee on Forms 1066 or
other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be as
designated in the Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 86OG(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.86OG-1(a)(4) will
be the Latest Possible Maturity Date.
(c) The Trustee shall pay any and all tax related expenses (not
including taxes) of each REMIC, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial
proceedings with respect to such REMIC that involve the Internal Revenue
Service or state tax authorities, but only to the extent that (i) such
expenses are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or (ii)
such expenses or liabilities (including taxes and penalties) are attributable
to the negligence or willful misconduct of the Trustee in fulfilling its
duties hereunder (including its duties as tax return preparer). The Trustee
shall be entitled to reimbursement of expenses to the extent provided in
clause (i) above from the Certificate Account.
(d) The Trustee shall prepare, sign and file, all of each REMIC's
federal and state tax and information returns as such REMIC's direct
representative. The expenses of preparing and filing such returns shall be
borne by the Trustee.
(e) The Trustee or its designee shall perform on behalf of each REMIC
all reporting and other tax compliance duties that are the responsibility of
such REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions, or
other such guidance, the Trustee shall provide (i) to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions. The Trustee shall be
entitled to receive reasonable compensation for the performance of its duties
under this subsection (d); provided, however, that such compensation shall not
exceed $5,000 per year.
(f) The Trustee and the Holders of Certificates shall take any action
or cause any REMIC to take any action necessary to create or maintain the
status of any REMIC as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. Neither the Trustee
nor the Holder of any Residual Certificate shall knowingly take any action,
cause any REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of any REMIC as a REMIC or (ii)
result in the imposition of a tax upon any REMIC (including but not limited to
the tax on prohibited transactions as defined in Code Section 860F(a)(2) and
the tax on prohibited contributions set forth on Section 860G(d) of the Code)
(either such event, an "Adverse REMIC Event") unless the Trustee has received
an Opinion of Counsel (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such
status or result in the imposition of such a tax. In addition, prior to taking
any action with respect to any REMIC or the assets therein, or causing any
REMIC to take any action, which is not expressly permitted under the terms of
this Agreement, any Holder of a Residual Certificate will consult with the
Trustee, or its designees, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to any REMIC, and no
such Person shall take any such action or cause any REMIC to take any such
action as to which the Trustee has advised it in writing that an Adverse REMIC
Event could occur.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in any such REMIC or, if no such amounts are available,
out of other amounts held in the Certificate Account, and shall reduce amounts
otherwise payable to holders of regular interests in any such REMIC, as the
case may be.
(h) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each REMIC on a calendar year and on an
accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) The Trustee shall not enter into any arrangement by which any
REMIC will receive a fee or other compensation for services.
(k) The Trustee shall treat the Basis Risk Reserve Fund as an outside
reserve fund within the meaning of Treasury Regulation Section 1.860G-2(h)
that is owned by the Holder of the Class X Certificate and that is not an
asset of the REMIC. The Trustee shall treat the rights of the Class A1, Class
M1, Class M2 and Class B Certificateholders to receive payments from any Basis
Risk Reserve Fund in the event of a Basis Risk Shortfall as rights in an
interest rate cap contract written by the Class X Certificateholder in favor
of the Class A1, Class M1, Class M2 and Class B Certificateholders. Thus, each
Class A1, Class M1, Class M2 and Class B Certificate shall be treated as
representing not only ownership of regular interests in REMIC 3, but also
ownership of an interest in an interest rate cap contract.
Section 10.02. Prohibited Transactions and Activities. Neither the
Depositor nor the Trustee shall sell, dispose of, or substitute for any of the
Mortgage Loans, except in a disposition pursuant to (i) the foreclosure of a
Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii) the termination of
each REMIC pursuant to Article VII of this Agreement, (iv) a substitution
pursuant to Article II of this Agreement or (v) a repurchase of Mortgage Loans
pursuant to Article II of this Agreement, nor acquire any assets for any
REMIC, nor sell or dispose of any investments in the Certificate Account for
gain, nor accept any contributions to any REMIC after the Closing Date, unless
it has received an Opinion of Counsel (at the expense of the party causing
such sale, disposition, or substitution) that such disposition, acquisition,
substitution, or acceptance will not (a) affect adversely the status of any
such REMIC as a REMIC or of the interests therein other than the Residual
Certificates as the regular interests therein, (b) affect the distribution of
interest or principal on the Certificates, (c) result in the encumbrance of
the assets transferred or assigned to the Trust Fund (except pursuant to the
provisions of this Agreement) or (d) cause any such REMIC to be subject to a
tax on prohibited transactions or prohibited contributions pursuant to the
REMIC Provisions.
Section 10.03. Indemnification with Respect to Certain Taxes and Loss
of REMIC Status. (a) In the event that any REMIC fails to qualify as a REMIC,
loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Trustee of its duties and
obligations set forth herein, the Trustee shall indemnify the Holder of the
related Residual Certificate against any and all losses, claims, damages,
liabilities or expenses ("Losses") resulting from such negligence; provided,
however, that the Trustee shall not be liable for any such Losses attributable
to the action or inaction of the Depositor, the Class X Certificateholder or
the Holder of such Residual Certificate, as applicable, nor for any such
Losses resulting from misinformation provided by the Holder of such Residual
Certificate on which the Trustee has relied. The foregoing shall not be deemed
to limit or restrict the rights and remedies of the Holder of such Residual
Certificate now or hereafter existing at law or in equity. Notwithstanding the
foregoing, however, in no event shall the Trustee have any liability (1) for
any action or omission that is taken in accordance with and in compliance with
the express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent
performance by the Trustee of its duties and obligations set forth herein, and
(3) for any special or consequential damages to Certificateholders (in
addition to payment of principal and interest on the Certificates).
(b) If the Internal Revenue Service determines that one of the REMICs
established hereunder recognized income from a prohibited transaction within
the meaning of Section 860F(a)(2) of the Code as a result of the lapse of the
Class X Certificateholder's right to effect a Special Termination of the Trust
Fund by purchasing the assets of the Trust Fund, then ▇▇▇▇▇▇ Capital shall
indemnify the Trust Fund for any such tax and any tax imposed upon such
indemnification.
Section 10.04. REO Property. (a) Notwithstanding any other provision
of this Agreement, the Trustee shall not (except to the extent provided in the
Servicing Agreement) permit the Servicer to, rent, lease, or otherwise earn
income on behalf of any REMIC with respect to any REO Property which might
cause such REO Property to fail to qualify as "foreclosure" property within
the meaning of section 860G(a)(8) of the Code or result in the receipt by any
REMIC of any "income from non-permitted assets" within the meaning of section
860F(a)(2) of the Code or any "net income from foreclosure property" which is
subject to tax under the REMIC Provisions unless the Servicer has advised the
Trustee in writing to the effect that, under the REMIC Provisions, such action
would not adversely affect the status of any REMIC as a REMIC and any income
generated for any REMIC by the REO Property would not result in the imposition
of a tax upon such REMIC.
(b) The Trustee shall, or (to the extent provided in the Servicing
Agreement) cause the Servicer to make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Trustee shall
cause the Servicer (to the extent provided in the Servicing Agreement) to
dispose of any REO Property within three years of its acquisition by the Trust
Fund unless the Trustee has received a grant of extension from the Internal
Revenue Service to the effect that, under the REMIC Provisions and any
relevant proposed legislation and under applicable state law, the REMIC may
hold REO Property for a longer period without adversely affecting the REMIC
status of such REMIC or causing the imposition of a Federal or state tax upon
such REMIC. If the Trustee has received such an extension, then the Trustee or
the Servicer shall continue to attempt to sell the REO Property for its fair
market value for such period longer than three years as such extension permits
(the "Extended Period"). If the Trustee has not received such an extension and
the Trustee or the Servicer, acting on behalf of the Trustee is unable to sell
the REO Property within three years after its acquisition by the Trust Fund or
if the Trustee has received such an extension, and the Trustee or the Servicer
is unable to sell the REO Property within the period ending three months
before the close of the Extended Period, the Trustee shall, or shall cause the
Servicer to, before the end of the three year period or the Extended Period,
as applicable, (i) purchase such REO Property at a price equal to the REO
Property's fair market value or (ii) auction the REO Property to the highest
bidder (which may be the Trustee or the Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of the three-year
period or the Extended Period, as the case may be.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Binding Nature of Agreement; Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section 11.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 11.03. Amendment. (a) This Agreement may be amended from time
to time by the Depositor and the Trustee, without notice to or the consent of
any of the Holders, (i) to cure any ambiguity, (ii) to cause the provisions
herein to conform to or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust Fund or this Agreement in any
Offering Document, or to correct or supplement any provision herein which may
be inconsistent with any other provisions herein, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement
or (iv) to add, delete, or amend any provisions to the extent necessary or
desirable to comply with any requirements imposed by the Code and the REMIC
Provisions. No such amendment effected pursuant to the preceding sentence
shall, as evidenced by an Opinion of Counsel, adversely affect the status of
any REMIC created pursuant to this Agreement, nor shall such amendment
effected pursuant to clause (iii) of such sentence adversely affect in any
material respect the interests of any Holder. Prior to entering into any
amendment without the consent of Holders pursuant to this paragraph, the
Trustee may require an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that such amendment is permitted
under this paragraph. Any such amendment shall be deemed not to adversely
affect in any material respect any Holder, if the Trustee receives written
confirmation from each Rating Agency that such amendment will not cause such
Rating Agency to reduce the then current rating assigned to the Certificates.
(b) This Agreement may also be amended from time to time by the
Depositor and the Trustee with the consent of the Holders of not less than
66-2/3% of the Class Principal Amount (or Percentage Interest) of each Class
of Certificates affected thereby 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 as a REMIC or
cause a tax to be imposed on such REMIC; and provided further, that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on
any Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount or Class Notional
Amount (or Percentage Interest) of Certificates of each Class, the Holders of
which are required to consent to any such amendment without the consent of the
Holders of 100% of the Class Principal Amount or Class Notional Amount (or
Percentage Interest) of each Class of Certificates affected thereby. For
purposes of this paragraph, references to "Holder" or "Holders" shall be
deemed to include, in the case of any Class of Book-Entry Certificates, the
related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in the Servicing
Agreement, the Trustee shall not consent to any amendment of the Servicing
Agreement except pursuant to the standards provided in this Section with
respect to amendment of this Agreement.
Section 11.04. Voting Rights. Except to the extent that the consent
of all affected Certificateholders is required pursuant to this Agreement,
with respect to any provision of this Agreement requiring the consent of
Certificateholders representing specified percentages of aggregate outstanding
Certificate Principal Amount or Class Notional Amount (or Percentage
Interest), Certificates owned by the Depositor, the Trustee, the Servicer,
MGIC, the Loss Mitigation Advisor or Affiliates thereof are not to be counted
so long as such Certificates are owned by the Depositor, the Trustee, the
Servicer, MGIC, the Loss Mitigation Advisor or any Affiliate thereof.
Section 11.05. Provision of Information. (a) For so long as any of
the Certificates of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act, each of the Depositor and the Trustee
agree to cooperate with each other to provide to any Certificateholders and to
any prospective purchaser of Certificates designated by such
Certificateholder, upon the request of such Certificateholder or prospective
purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee
in providing such information shall be reimbursed by the Depositor.
(b) The Trustee will provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or
documents requested, (i) a copy (excluding exhibits) of any report on Form 8-K
or Form 10-K filed with the Securities and Exchange Commission pursuant to
Section 9.02(c) and (ii) a copy of any other document incorporated by
reference in the Prospectus. Any reasonable out-of-pocket expenses incurred by
the Trustee in providing copies of such documents shall be reimbursed by the
Depositor.
(c) On each Distribution Date, the Trustee shall deliver or cause to
be delivered by first class mail to the Depositor, Attention: Contract
Finance, a copy of the report delivered to Certificateholders pursuant to
Section 4.03.
Section 11.06. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (a) in the case of the Depositor, Structured Asset Securities
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Mortgage Backed Finance and (b) in the case of the Trustee, ▇▇▇▇▇
Fargo Bank Minnesota, National Association, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: ARC 2001-BC1, or as to each party such
other address as may hereafter be furnished by such party to the other parties
in writing. Any notice required or permitted to be mailed to a Holder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.
Section 11.08. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 11.09. Indulgences; No Waivers. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 11.10. Headings Not To Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 11.11. Benefits of Agreement. Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of
the Certificates, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement, except to the extent specified in Section
11.14.
Section 11.12. Special Notices to the Rating Agencies. (a) The
Depositor shall give prompt notice to the Rating Agencies of the occurrence of
any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) the occurrence of any Event of Default;
(iii) any notice of termination given to the Servicer pursuant
to Section 6.14 and any resignation of the Servicer under the
Servicing Agreement;
(iv) the appointment of any successor to the Servicer pursuant
to Section 6.14; and
(v) the making of a final payment pursuant to Section 7.02.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight
courier, as follows:
If to Moody's, to:
▇▇▇▇▇'▇ Investors Services, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Mortgages
If to S&P, to:
Standard & Poor's Rating Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: Residential Mortgages
Section 11.13. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
Section 11.14. Transfer of Servicing. ▇▇▇▇▇▇ Capital agrees that it
shall provide written notice to the Trustee thirty days prior to any transfer
or assignment by ▇▇▇▇▇▇ Capital of its rights under the Servicing Agreement or
of the servicing thereunder or delegation of its rights or duties thereunder
or any portion thereof to any other Person including any other Servicer under
the Servicing Agreement. In addition, the ability of ▇▇▇▇▇▇ Capital to
transfer or assign its rights and delegate its duties under the Servicing
Agreement or to transfer the servicing thereunder to a successor servicer
shall be subject to the following conditions:
(i) satisfaction of the conditions to such transfer as set
forth in the Servicing Agreement including, without limitation,
receipt of written consent of the Seller to such transfer;
(ii) Such successor servicer must be qualified to service loans
for FNMA or FHLMC, and must be a member in good standing of MERS;
(iii) Such successor servicer must satisfy the seller/servicer
eligibility standards in the Servicing Agreement, exclusive of any
experience in mortgage loan origination;
(iv) Such successor servicer must execute and deliver to the
Trustee an agreement, in form and substance reasonably satisfactory
to the Trustee, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each
covenant and condition to be performed and observed by such Servicer
under the Servicing Agreement;
(v) There must be delivered to the Trustee a letter from each
Rating Agency to the effect that such transfer of servicing will not
result in a qualification, withdrawal or downgrade of the
then-current rating of any of the Certificates; and
(vi) ▇▇▇▇▇▇ Capital shall, at its cost and expense, take such
steps, or cause the terminated Servicer to take such steps, as may
be necessary or appropriate to effectuate and evidence the transfer
of the servicing of the Mortgage Loans to such successor servicer,
including, but not limited to, the following: (A) to the extent
required by the terms of the Mortgage Loans and by applicable
federal and state laws and regulations, ▇▇▇▇▇▇ Capital shall cause
the prior Servicer to timely mail to each obligor under a Mortgage
Loan any required notices or disclosures describing the transfer of
servicing of the Mortgage Loans to the successor servicer; (B) prior
to the effective date of such transfer of servicing, ▇▇▇▇▇▇ Capital
shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the
effective date of such transfer of servicing, ▇▇▇▇▇▇ Capital shall
cause the prior Servicer to deliver to the successor servicer all
Mortgage Loan Documents and any related records or materials; (D) on
or prior to the effective date of such transfer of servicing, ▇▇▇▇▇▇
Capital shall cause the prior Servicer to transfer to the successor
servicer, or, if such transfer occurs after a Remittance Date but
before the next succeeding Deposit Date, to the Trustee, all funds
held by the prior Servicer in respect of the Mortgage Loans; (E) on
or prior to the effective date of such transfer of servicing, ▇▇▇▇▇▇
Capital shall cause the prior Servicer to, after the effective date
of the transfer of servicing to the successor servicer, continue to
forward to such successor servicer, within one Business Day of
receipt, the amount of any payments or other recoveries received by
the prior Servicer, and to notify the successor servicer of the
source and proper application of each such payment or recovery; and
(F) ▇▇▇▇▇▇ Capital shall cause the prior Servicer to, after the
effective date of transfer of servicing to the successor servicer,
continue to cooperate with the successor servicer to facilitate such
transfer in such manner and to such extent as the successor servicer
may reasonably request. Notwithstanding the foregoing, the prior
Servicer shall be obligated to perform the items listed above to the
extent provided in the Servicing Agreement.
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their
names to be signed hereto by their respective officers hereunto duly
authorized as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:/s/ ▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Solely for purposes of Section 11.14,
accepted and agreed to by:
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION
------------------
Date
▇▇▇▇▇ Fargo Bank Minnesota,
National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Trust Agreement (the "Trust Agreement"), dated as of February 1, 2001
between Structured Asset Securities Corporation, as Depositor, and
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as trustee, with
respect to Amortizing Residential Collateral Mortgage Pass-Through
Certificates, Series 2001-BC1
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the Trust Agreement, subject to
review of the contents thereof, the undersigned, as Custodian on behalf of the
Trustee, hereby certifies that it (or its custodian) has received the
documents listed in Section 2.01(b) of the Trust Agreement for each Mortgage
File pertaining to each Mortgage Loan listed on Schedule A, to the Trust
Agreement, subject to any exceptions noted on Schedule I hereto.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Trust
Agreement. This Certificate is subject in all respects to the terms of Section
2.02 of the Trust Agreement and the Trust Agreement sections cross-referenced
therein.
[Custodian], on behalf of
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT B-2
FORM OF INTERIM CERTIFICATION
---------------
Date
▇▇▇▇▇ Fargo Bank Minnesota,
National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Trust Agreement (the "Trust Agreement"), dated as of February 1,
2001 between Structured Asset Securities Corporation, as
Depositor, and ▇▇▇▇▇ Fargo Bank Minnesota, National Association,
as trustee, with respect to Amortizing Residential Collateral
Mortgage Pass-Through Certificates, Series 2001-BC1
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b) of
the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on Schedule I hereto, it has reviewed the documents identified above and has
determined that each such document appears regular on its face and appears to
relate to the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement including, but
not limited to, Section 2.02(b).
[Custodian], on behalf of
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT B-3
FORM OF FINAL CERTIFICATION
_____________________
Date
▇▇▇▇▇ Fargo Bank Minnesota,
National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Trust Agreement (the "Trust Agreement"), dated as of February 1, 2001
between Structured Asset Securities Corporation, as Depositor, and
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as trustee, with
respect to Amortizing Residential Collateral Mortgage Pass-Through
Certificates, Series 2001-BC1
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Trust Agreement, the
undersigned, as Custodian on behalf of the Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b) of
the Trust Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on Schedule I hereto, it has reviewed the documents listed above and has
determined that each such document appears to be complete and, based on an
examination of such documents, the information set forth in the Mortgage Loan
Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement. This Certificate is
qualified in all respects by the terms of said Trust Agreement.
[Custodian], on behalf of
▇▇▇▇▇ FARGO BANK MINNESOTA
NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Name:
Title:
EXHIBIT B-4
FORM OF ENDORSEMENT
Pay to the order of ▇▇▇▇▇ Fargo Bank Minnesota, National Association,
as trustee (the "Trustee") under the Trust Agreement dated as of February 1,
2001 between Structured Asset Securities Corporation, as Depositor and the
Trustee relating to Amortizing Residential Collateral Mortgage Pass-Through
Certificates, Series 2001-BC1, without recourse.
----------------------------------
[current signatory on note]
By:_______________________________
Name:
Title:
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
-------------------
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of February 1, 2001 between
Structured Asset Securities Corporation, as Depositor, and you, as Trustee
(the "Trust Agreement"), the undersigned Servicer hereby requests a release of
the Mortgage File held by you as Trustee with respect to the following
described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Servicer hereby certifies that
all amounts received in connection with the loan have been or will be credited
to the Certificate Account pursuant to the Trust Agreement.)
2. The Mortgage Loan is being foreclosed.
3. Mortgage Loan substituted. (The Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Trust Agreement.)
4. Mortgage Loan repurchased. (The Servicer hereby certifies that
the Purchase Price has been credited to the Certificate Account pursuant to the
Trust Agreement.)
5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Trust
Agreement and will be returned to you within ten (10) days of our receipt of
the Mortgage File, except if the Mortgage Loan has been paid in full, or
repurchased or substituted for a Qualifying Substitute Mortgage Loan (in which
case the Mortgage File will be retained by us permanently) and except if the
Mortgage Loan is being foreclosed (in which case the Mortgage File will be
returned when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Trust Agreement.
-------------------------------------
[Name of Servicer]
By:__________________________________
Name:
Title: Servicing Officer
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes
and says:
1. That he [she] is [title of officer] ________________________
of [name of Purchaser]
_________________________________________ (the "Purchaser"),
a _______________________ [description of type of entity]
duly organized and existing under the laws of the [State of
__________] [United States], on behalf of which he [she]
makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization"
within the meaning of Section 860E(e)(5) of the Internal
Revenue Code of 1986, as amended (the "Code") and will not
be a "disqualified organization" as of [date of transfer],
and that the Purchaser is not acquiring a Residual
Certificate (as defined in the Agreement) for the account
of, or as agent (including a broker, nominee, or other
middleman) for, any person or entity from which it has not
received an affidavit substantially in the form of this
affidavit. For these purposes, a "disqualified organization"
means the United States, any state or political subdivision
thereof, any foreign government, any international
organization, any agency or instrumentality of any of the
foregoing (other than an instrumentality if all of its
activities are subject to tax and a majority of its board of
directors is not selected by such governmental entity), any
cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas as
described in Code Section 1381(a)(2)(C), any "electing large
partnership" within the meaning of Section 775 of the Code,
or any organization (other than a farmers' cooperative
described in Code Section 521) that is exempt from federal
income tax unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511.
4. That the Purchaser either (x) is not, and on
__________________ [date of transfer] will not be, an
employee benefit plan subject to Section 406 or Section 407
of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Code, the trustee
of any such plan or a person acting on behalf of any such
plan or investing the assets of any such plan to acquire a
Residual Certificate; (y) is an insurance company that is
purchasing the Certificate with funds contained in an
"insurance company general account" as defined in Section
V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60 and the purchase and holding of the Certificate are
covered under Section I and III of PTCE 95-60; or (z)
herewith delivers to the Trustee and shall deliver to the
Depositor an opinion of counsel (a "Benefit Plan Opinion")
satisfactory to the Trustee and the Depositor, and upon
which the Trustee and the Depositor shall be entitled to
rely, to the effect that the purchase or holding of such
Residual Certificate by the Investor will not result in the
assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA or
the Code and will not subject the Trustee or the Depositor
to any obligation in addition to those undertaken by such
entities in the Trust Agreement, which opinion of counsel
shall not be an expense of the Trustee or the Depositor.
5. That the Purchaser hereby acknowledges that under the terms
of the Trust Agreement (the "Agreement") between Structured
Asset Securities Corporation and ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as Trustee, dated as of February 1,
2001, no transfer of the Residual Certificates shall be
permitted to be made to any person unless the Depositor and
Trustee have received a certificate from such transferee
containing the representations in paragraphs 3 and 4 hereof.
6. That the Purchaser does not hold REMIC residual securities
as nominee to facilitate the clearance and settlement of
such securities through electronic book-entry changes in
accounts of participating organizations (such entity, a
"Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local
taxes legally required to be paid with respect to such
Residual Certificate.
8. That the Purchaser will not transfer a Residual Certificate
to any person or entity (i) as to which the Purchaser has
actual knowledge that the requirements set forth in
paragraph 3, paragraph 6 or paragraph 10 hereof are not
satisfied or that the Purchaser has reason to believe does
not satisfy the requirements set forth in paragraph 7
hereof, and (ii) without obtaining from the prospective
Purchaser an affidavit substantially in this form and
providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the Agreement.
9. That the Purchaser understands that, as the holder of a
Residual Certificate, the Purchaser may incur tax
liabilities in excess of any cash flows generated by the
interest and that it intends to pay taxes associated with
holding such Residual Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in
connection with the conduct of a trade or business within
the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service Form
W-8ECI (Certificate of Foreign Person's Claim for Exemption
From Withholding on Income Effectively Connected With the
Conduct of a Trade or Business in the United States) or
successor form at the time and in the manner required by the
Code or (iii) is a Non-U.S. Person that has delivered to
both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the
transfer of such Residual Certificate to it is in accordance
with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax
purposes. "Non-U.S. Person" means an individual,
corporation, partnership or other person other than (i) a
citizen or resident of the United States; (ii) a
corporation, partnership or other entity created or
organized in or under the laws of the United States or any
state thereof, including for this purpose, the District of
Columbia; (iii) an estate that is subject to U.S. federal
income tax regardless of the source of its income; (iv) a
trust if a court within the United States is able to
exercise primary supervision over the administration of the
trust and one or more United States trustees have authority
to control all substantial decisions of the trust; and, (v)
to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996 that are treated as
United States persons prior to such date and elect to
continue to be treated as United States persons.
11. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the
restrictions on transfer of any Residual Certificate to such
a "disqualified organization," an agent thereof, a
Book-Entry Nominee, or a person that does not satisfy the
requirements of paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the
Trustee as its agent to act as "tax matters person" of the
Trust Fund pursuant to the Trust Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________, 20__.
---------------------------------
[name of Purchaser]
By:______________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 20__.
NOTARY PUBLIC
------------------------------
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________, 20__.
EXHIBIT D-2
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
----------------------------
Date
Re: Amortizing Residential Collateral
Mortgage Pass-Through Certificates, Series 2001-BC1
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
EXHIBIT E
SERVICING AGREEMENT (OPTION ONE MORTGAGE CORPORATION)
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Amortizing Residential Collateral
Mortgage Pass-Through Certificates
Series 2001-BC1
----------------------------------------------------
Reference is hereby made to the Trust Agreement dated as of February
1, 2001 (the "Trust Agreement") between Structured Asset Securities
Corporation, as Depositor and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Trust Agreement.
This letter relates to $__________ initial Certificate Balance of
Class ___ Certificates which are held in the form of Definitive Certificates
registered in the name of _________________ (the "Transferor"). The Transferor
has requested a transfer of such Definitive Certificates for Definitive
Certificates of such Class registered in the name of [insert name of
transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred
in accordance with (i) the transfer restrictions set forth in the Trust
Agreement and the Certificates and (ii) Rule 144A under the Securities Act to
a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer," which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Placement Agent and the Depositor.
-------------------------------------
[Name of Transferor]
By:__________________________________
Name:
Title:
Dated: ___________, ____
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
-----------------
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Amortizing Residential Collateral Trust Mortgage Pass-Through
Certificates, Series 2001-BC1 (the "Privately Offered Certificates") of the
Structured Asset Securities Corporation (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Privately Offered Certificates
within two years of the later of the date of original issuance of the
Privately Offered Certificates or the last day on which such
Privately Offered Certificates are owned by the Depositor or any
affiliate of the Depositor (which includes the Placement Agent) we
will do so only (A) to the Depositor, (B) to "qualified institutional
buyers" (within the meaning of Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act ("QIBs"), (C)
pursuant to the exemption from registration provided by Rule 144
under the Securities Act, or (D) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of
February 1, 2001 between the Depositor and ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as Trustee (the "Trustee"), a signed
letter in the form of this letter; and we further agree, in the
capacities stated above, to provide to any person purchasing any of
the Privately Offered Certificates from us a notice advising such
purchaser that resales of the Privately Offered Certificates are
restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited
Investor, we will be required to furnish to the Trustee and the
Depositor a certification from such transferee in the form hereof to
confirm that the proposed sale is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act. We further understand that the
Privately Offered Certificates purchased by us will bear a legend to
the foregoing effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in
the Privately Offered Certificates, and we and any account for which
we are acting are each able to bear the economic risk of such
investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional
Accredited Investor) as to each of which we exercise sole investment
discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand that
in accordance with ERISA, the Code and the Exemption, no Plan and no
person acting on behalf of such a Plan may acquire such Certificate
except in accordance with Section 3.03(d) of the Trust Agreement.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
----------------------------------
[Purchaser]
By: ________________________________
Name:
Title:
EXHIBIT H
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the "Investor"),
a [corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. The Investor either (x) is not, and on ___________ [date of
transfer] will not be, an employee benefit plan subject to Section 406 or
Section 407 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"), the trustee of any such plan or a person acting on behalf of any
such plan or investing the assets of any such plan; (y) if the Certificate has
been the subject of an ERISA-Qualifying Underwriting, is an insurance company
that is purchasing the Certificate with funds contained in an "insurance
company general account" as defined in Section V(e) of Prohibited Transaction
Class Exemption ("PTCE") 95-60 and the purchase and holding of the Certificate
are covered under Section I and III of PTCE 95-60; or (z) herewith delivers to
the Trustee and shall deliver to the Depositor an opinion of counsel (a
"Benefit Plan Opinion") satisfactory to the Trustee and the Depositor, and
upon which the Trustee and the Depositor shall be entitled to rely, to the
effect that the purchase or holding of such Certificate by the Investor will
not result in the assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA or the Code and will
not subject the Trustee or the Depositor to any obligation in addition to
those undertaken by such entities in the Trust Agreement, which opinion of
counsel shall not be an expense of the Trustee or the Depositor.
3. The Investor hereby acknowledges that under the terms of the Trust
Agreement (the "Agreement") between Structured Asset Securities Corporation,
as Depositor and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Trustee,
dated as of February 1, 2001, no transfer of the ERISA-Restricted Certificates
shall be permitted to be made to any person unless the Depositor and Trustee
have received a certificate from such transferee in the form hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 20___.
---------------------------------
[Investor]
By:______________________________
Name:
Title:
ATTEST:
-----------------------------
STATE OF )
) ss:
COUNTY OF )
Personally appeared before me the above-named
________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the ____________________
of the Investor, and acknowledged that he executed the same as his
free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this _____ day of _________
20___.
------------------------------
NOTARY PUBLIC
My commission expires the
_____ day of __________, 20___.
EXHIBIT I
MONTHLY REMITTANCE ADVICE
EXHIBIT J
MONTHLY ELECTRONIC DATA TRANSMISSION
EXHIBIT K-1
CUSTODIAL AGREEMENT (THE CHASE MANHATTAN BANK F/K/A CHASE BANK OF
TEXAS, NATIONAL ASSOCIATION)
EXHIBIT K-2
CUSTODIAL AGREEMENT (▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION)
EXHIBIT K-3
CUSTODIAL AGREEMENT (U.S. BANK TRUST NATIONAL ASSOCIATION)
EXHIBIT L-1
FIRST LIEN MASTER POLICY FOR AMORTIZING RESIDENTIAL COLLATERAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-BC1 ISSUED BY
MORTGAGE GUARANTY INSURANCE CORPORATION
EXHIBIT L-2
[RESERVED]
EXHIBIT M
[RESERVED]
EXHIBIT N-1
FORMS OF LOSS MITIGATION ADVISORY AGREEMENT BETWEEN THE
MURRAYHILL COMPANY, AS LOSS MITIGATION ADVISOR, AND THE SERVICER
EXHIBIT O
CONSULTING AGREEMENT, DATED AS OF MARCH 8, 2001 BETWEEN THE
DEPOSITOR AND THE MURRAYHILL COMPANY
SCHEDULE A
MORTGAGE LOAN SCHEDULE