1
EXHIBIT 4.1
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POOLING AND SERVICING AGREEMENT
Dated as of _____, 199_
EQCC RECEIVABLES CORPORATION
EQCC ASSET BACKED CORPORATION
(Depositors)
and
EQUICREDIT CORPORATION OF AMERICA
(Representative and Servicer)
and
[TRUSTEE]
(Trustee)
EQCC HOME EQUITY LOAN ASSET BACKED CERTIFICATES,
Series 199_-_
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2
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Account..........................................................................................................2
Accrual Period...................................................................................................2
Act..............................................................................................................2
Actual Loss Severity.............................................................................................2
Adjustable Rate Group............................................................................................2
Adjustable Rate Group Weighted Average Mortgage Interest Rate....................................................3
Administrative Fee Rate..........................................................................................3
Advance..........................................................................................................3
Affiliate........................................................................................................3
Agreement........................................................................................................3
Assignment of Beneficial Interest................................................................................3
Assignment of Mortgage...........................................................................................3
Authorized Denominations.........................................................................................3
Available Payment Amount.........................................................................................3
Bankruptcy Loan..................................................................................................4
Base Spread Account Requirement..................................................................................4
Basic Documents..................................................................................................4
Basic Principal Amount...........................................................................................4
Book-Entry Certificates..........................................................................................4
Business Day.....................................................................................................4
Certificate......................................................................................................4
Certificate Custodian............................................................................................5
Certificate Depository Agreement.................................................................................5
Certificate Insurance Policy.....................................................................................5
Certificate Insurer..............................................................................................5
Certificate Owner................................................................................................5
Certificate Register.............................................................................................5
Certificateholder or Holder......................................................................................5
Class............................................................................................................5
Class A Certificateholder........................................................................................5
Class A Certificates.............................................................................................5
Class A Remittance Amount........................................................................................5
Class A-1A Carry-Forward Amount..................................................................................6
Class A-1A Certificate...........................................................................................6
Class A-1A Certificateholder.....................................................................................6
Class A-1A Interest Remittance Amount............................................................................6
Class A-1A LIBOR Interest Carryover..............................................................................6
Class A-1A LIBOR Rate............................................................................................6
(i)
3
Class A-1A Net Funds Cap Rate....................................................................................6
Class A-1A Pass-Through Rate.....................................................................................6
Class A-1A Principal Balance.....................................................................................7
Class A-1A Principal Remittance Amount...........................................................................7
Class A-1A Remittance Amount.....................................................................................7
Class A-1F Carry-Forward Amount..................................................................................7
Class A-1F Certificate...........................................................................................7
Class A-1F Certificateholder.....................................................................................7
Class A-1F Interest Remittance Amount............................................................................7
Class A-1F LIBOR Interest Carryover..............................................................................7
Class A-1F LIBOR Rate............................................................................................8
Class A-1F Net Funds Cap Rate....................................................................................8
Class A-1F Pass-Through Rate.....................................................................................8
Class A-1F Principal Balance.....................................................................................8
Class A-1F Principal Remittance Amount...........................................................................8
Class A-1F Remittance Amount.....................................................................................8
Class Principal Balance..........................................................................................8
Class R Certificate..............................................................................................8
Class R Certificateholder........................................................................................8
Class X Certificate..............................................................................................8
Class X Certificateholder........................................................................................8
Class X-A Component Remittance Amount............................................................................8
Class X-F Component Remittance Amount............................................................................9
Class X Remittance Amount........................................................................................9
Closing Date.....................................................................................................9
Code.............................................................................................................9
Collections......................................................................................................9
Collection Account...............................................................................................9
Combined Loan-To-Value Ratio.....................................................................................9
Commission.......................................................................................................9
Corporate Trust Office...........................................................................................9
Cross-over Date..................................................................................................9
Cumulative Excess Spread Receipts................................................................................9
Cumulative Losses...............................................................................................10
Current CLTV....................................................................................................10
Curtailment.....................................................................................................10
Custodial Agreement.............................................................................................10
Custodian.......................................................................................................10
Cut-off Date....................................................................................................10
Default.........................................................................................................10
Definitive Certificates.........................................................................................10
Deleted Mortgage Loan...........................................................................................10
Depositor.......................................................................................................10
Depository......................................................................................................10
Depository Participant..........................................................................................10
Destroyed Mortgage Note.........................................................................................11
(ii)
4
Destroyed Mortgage Note Affidavit...............................................................................11
Determination Date..............................................................................................11
Disqualified Non-United States Person...........................................................................11
Disqualified Organization.......................................................................................11
Distribution Date...............................................................................................11
Due Date........................................................................................................11
Due Period......................................................................................................11
Eligible Account................................................................................................11
EquiCredit......................................................................................................12
Event of Nonpayment.............................................................................................12
Excess Proceeds.................................................................................................12
Excess Spread...................................................................................................12
Exchange Act....................................................................................................13
FDIC............................................................................................................13
FHLMC...........................................................................................................13
Fidelity Bond...................................................................................................13
Final Scheduled Distribution Date...............................................................................13
First Lien......................................................................................................13
Fixed Rate Group................................................................................................13
Fixed Rate Group Weighted Average Mortgage Interest Rate........................................................13
FNMA............................................................................................................13
Holder..........................................................................................................13
Illinois Land Trust.............................................................................................13
Independent.....................................................................................................13
Initial Premium Fee Recovery Amount.............................................................................13
Insurance Account...............................................................................................14
Insurance Proceeds..............................................................................................14
Insured Payment.................................................................................................14
Latest Maturity Date............................................................................................14
LIBOR...........................................................................................................14
LIBOR Business Day..............................................................................................14
LIBOR Determination Date........................................................................................14
LIBOR Interest Carryover........................................................................................15
Lien............................................................................................................15
Liquidated Mortgage Loan........................................................................................15
Liquidation Proceeds............................................................................................15
Loss Coverage Ratio.............................................................................................15
Loss Coverage Requirement.......................................................................................15
Loss Trigger Date...............................................................................................15
Majority in Aggregate Voting Interest...........................................................................15
Monthly Excess Spread Amount....................................................................................15
Monthly Payment.................................................................................................15
Monthly Premium.................................................................................................16
Mortgage........................................................................................................16
Mortgage File...................................................................................................16
Mortgage Impairment Insurance Policy............................................................................16
(iii)
5
Mortgage Interest Rate..........................................................................................16
Mortgage Loan...................................................................................................16
Mortgage Loan Group.............................................................................................16
Mortgage Loan Losses............................................................................................16
Mortgage Loan Schedule..........................................................................................16
Mortgage Note...................................................................................................17
Mortgage Pool...................................................................................................17
Mortgaged Property..............................................................................................17
Mortgaged Property State........................................................................................17
Mortgagor.......................................................................................................17
Net Adjustable Rate Group Weighted Average Mortgage Interest Rate...............................................17
Net Fixed Rate Group Weighted Average Mortgage Interest Rate....................................................17
Net Liquidation Proceeds........................................................................................17
Nondisqualification Opinion.....................................................................................17
Nonrecoverable Advances.........................................................................................17
Non-United States Person........................................................................................17
Officer's Certificate...........................................................................................18
Opinion of Counsel..............................................................................................18
Optional Purchase Date..........................................................................................18
Original Class A-1F Principal Balance...........................................................................18
Original Class A-1A Principal Balance...........................................................................18
Original Pool Principal Balance.................................................................................18
Original Loss Severity..........................................................................................18
Originator......................................................................................................18
Owner-Occupied Mortgaged Property...............................................................................18
Ownership Interest..............................................................................................18
Pass-Through Rate...............................................................................................18
Percentage Interest.............................................................................................18
Performance Default.............................................................................................19
Permitted Instruments...........................................................................................19
Permitted Transferee............................................................................................20
Person..........................................................................................................20
Plan............................................................................................................20
Pool Factor.....................................................................................................20
Pool Principal Balance..........................................................................................20
Pre-Plan Interest...............................................................................................20
Pre-Plan Interest Payments......................................................................................20
Principal and Interest Account..................................................................................20
Principal Balance...............................................................................................20
Principal Prepayment............................................................................................21
Proceeding......................................................................................................21
Projected Excess Spread.........................................................................................21
Prospectus......................................................................................................21
Qualified Substitute Mortgage Loan..............................................................................21
Rating Agencies.................................................................................................21
Reassignment of Assignment of Beneficial Interest...............................................................21
(iv)
6
Record Date.....................................................................................................22
Recordation Trigger.............................................................................................22
Reference Banks.................................................................................................22
Registered Holder...............................................................................................22
Regular Interests...............................................................................................22
Reimbursable Amounts............................................................................................22
Released Mortgaged Property Proceeds............................................................................22
Remainder Excess Spread Amount..................................................................................22
REMIC...........................................................................................................22
REMIC Provisions................................................................................................22
REO Disposition.................................................................................................23
Representative..................................................................................................23
Representative's Yield..........................................................................................23
Residential Dwelling............................................................................................23
Residual Certificate............................................................................................23
Responsible Officer.............................................................................................23
Series..........................................................................................................23
Servicer........................................................................................................23
Servicer Default................................................................................................23
Servicer Employees..............................................................................................23
Servicing Advances..............................................................................................23
Servicing Compensation..........................................................................................24
Servicing Fee...................................................................................................24
Servicing Fee Rate..............................................................................................24
Servicing Officer...............................................................................................24
Specified Spread Account Requirement............................................................................24
Spread Account..................................................................................................25
Spread Account Amount...........................................................................................25
Spread Account Excess...........................................................................................25
Startup Day.....................................................................................................25
Subordinated Amount.............................................................................................25
Subservicer.....................................................................................................26
Subservicing Agreement..........................................................................................27
Substitution Adjustment.........................................................................................27
Tax Matters Person..............................................................................................27
Termination Price...............................................................................................27
Testing Date....................................................................................................27
Transfer........................................................................................................27
Transfer Agreement..............................................................................................27
Transfer Affidavit and Agreement................................................................................27
Transferee......................................................................................................27
Transferor......................................................................................................27
Trust...........................................................................................................27
Trust Fund......................................................................................................27
Trustee.........................................................................................................28
Trust REMIC.....................................................................................................28
(v)
7
UCC.............................................................................................................28
United States Person............................................................................................28
Unpaid Class X Remittance Amount................................................................................28
Voting Interest.................................................................................................28
ARTICLE II
CONVEYANCE OF THE TRUST ASSETS
Section 2.01 Sale and Conveyance of Trust Assets; Priority and Subordination of
Ownership Interests............................................................................29
Section 2.02 Possession of Mortgage Files.....................................................................30
Section 2.03 Books and Records................................................................................30
Section 2.04 Delivery of Mortgage Loan Documents..............................................................30
Section 2.05 [Reserved].......................................................................................33
Section 2.06 Acceptance by Trustee of the Trust Fund; Certain Substitutions;
Certification by Trustee.......................................................................33
Section 2.07 REMIC Administration.............................................................................35
Section 2.08 Execution of Certificates........................................................................39
Section 2.09 Application of Principal and Interest............................................................39
Section 2.10 Grantor Trust Administration.....................................................................39
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations of the Servicer and the Depositors...............................................40
Section 3.02 Assignment of Transfer Agreement; Representations and Warranties as
to the Individual Mortgage Loans and the Mortgage Pool.........................................44
Section 3.03 Purchase and Substitution........................................................................54
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates.................................................................................56
Section 4.02 Registration of Transfer and Exchange of Certificates............................................58
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates................................................61
Section 4.04 Persons Deemed Owners............................................................................62
Section 4.05 Determination of LIBOR...........................................................................62
ARTICLE V
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 5.01 Duties of the Servicer...........................................................................62
(vi)
8
Section 5.02 Liquidation of Mortgage Loans....................................................................65
Section 5.03 Establishment of Principal and Interest Account; Deposits in Principal
and Interest Account...........................................................................66
Section 5.04 Permitted Withdrawals from the Principal and Interest Account....................................68
Section 5.05 Payment of Taxes, Insurance and Other Charges....................................................70
Section 5.06 Transfer of Accounts; Monthly Statements.........................................................70
Section 5.07 Maintenance of Hazard Insurance..................................................................71
Section 5.08 Maintenance of Mortgage Impairment Insurance Policy..............................................71
Section 5.09 Fidelity Bond....................................................................................72
Section 5.10 Title, Management and Disposition of REO Property................................................72
Section 5.11 Collection of Certain Mortgage Loan Payments.....................................................74
Section 5.12 Access to Certain Documentation and Information Regarding the
Mortgage Loans.................................................................................74
Section 5.13 Superior Liens...................................................................................74
ARTICLE VI
PAYMENTS TO THE CERTIFICATEHOLDERS
Section 6.01 Establishment of Collection Account; Deposit in Accounts.........................................75
Section 6.02 Permitted Withdrawals from Collection Account....................................................76
Section 6.03 Establishment of Insurance Account: Deposits in Insurance Account:
Permitted Withdrawals from Insurance Account...................................................76
Section 6.04 Investment of Accounts...........................................................................77
Section 6.05 Priority and Subordination of Distributions......................................................79
Section 6.06 [RESERVED].......................................................................................81
Section 6.07 Statements.......................................................................................81
Section 6.08 Advances by the Servicer.........................................................................85
Section 6.09 Establishment of Spread Account; Deposits in Spread Account;
Permitted Withdrawals from Spread Account......................................................86
ARTICLE VII
GENERAL SERVICING PROCEDURES
Section 7.01 Assumption Agreements............................................................................88
Section 7.02 Satisfaction of Mortgages and Release of Mortgage Files..........................................89
Section 7.03 Servicing Compensation...........................................................................91
Section 7.04 Annual Statement as to Compliance................................................................91
Section 7.05 Annual Independent Public Accountants' Servicing Report..........................................91
Section 7.06 Right to Examine Servicer Records................................................................92
Section 7.07 Reports to the Trustee; Principal and Interest Account Statements................................92
(vii)
9
ARTICLE VIII
REPORTS TO BE PROVIDED BY SERVICER
Section 8.01 Financial Statements.............................................................................92
ARTICLE IX
THE SERVICER
Section 9.01 Indemnification; Third Party Claims..............................................................93
Section 9.02 Merger or Consolidation of the Servicer..........................................................93
Section 9.03 Limitation on Liability of the Servicer and Others...............................................93
Section 9.04 Servicer Not to Resign...........................................................................94
Section 9.05 Removal of Servicer..............................................................................94
ARTICLE X
SERVICER DEFAULT
Section 10.01 Servicer Default.................................................................................94
Section 10.02 Trustee to Act; Appointment of Successor Servicer................................................97
Section 10.03 Waiver of Defaults...............................................................................99
Section 10.04 Control by Majority in Aggregate Voting Interest.................................................99
ARTICLE XI
TERMINATION
Section 11.01 Termination......................................................................................99
Section 11.02 Additional Termination Requirements.............................................................101
Section 11.03 Accounting Upon Termination of Servicer.........................................................102
Section 11.04 Representative's Right to Representative's Yield Absolute.......................................102
Section 11.05 Termination Upon Loss of REMIC Status...........................................................102
ARTICLE XII
THE TRUSTEE
Section 12.01 Duties of Trustee...............................................................................104
Section 12.02 Certain Matters Affecting the Trustee...........................................................105
Section 12.03 Trustee Not Liable for Certificates or Mortgage Loans...........................................107
Section 12.04 Trustee May Own Certificates....................................................................107
Section 12.05 Servicer to Pay Trustee's Fees and Expenses.....................................................107
Section 12.06 Eligibility Requirements for Trustee............................................................108
Section 12.07 Resignation and Removal of the Trustee..........................................................108
(viii)
10
Section 12.08 Successor Trustee...............................................................................109
Section 12.09 Merger or Consolidation of Trustee..............................................................110
Section 12.10 Appointment of Co-Trustee or Separate Trustee...................................................110
Section 12.11 Appointment of Custodians.......................................................................111
Section 12.12 Protection of Trust Fund........................................................................111
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 The Certificate Insurer.........................................................................112
Section 13.02 Amendment.......................................................................................112
Section 13.03 Recordation of Agreement........................................................................113
Section 13.04 Duration of Agreement...........................................................................114
Section 13.05 Governing Law...................................................................................114
Section 13.06 Notices.........................................................................................114
Section 13.07 Severability of Provisions......................................................................114
Section 13.08 No Partnership..................................................................................115
Section 13.09 Counterparts....................................................................................115
Section 13.10 Successors and Assigns..........................................................................115
Section 13.11 Headings........................................................................................115
Section 13.12 Limitation of Liability of Trustee..............................................................115
Section 13.13 Limitations on Rights of Others.................................................................115
Section 13.14 No Petition.....................................................................................115
Section 13.15 Third Party Beneficiary.........................................................................116
(ix)
11
EXHIBITS
EXHIBIT A - Contents of Mortgage File
EXHIBIT B-1 - Form of Class A-1F Certificate
EXHIBIT B-2 - Form of Class A-1A Certificate
EXHIBIT B-3 - Form of Class X Certificate
EXHIBIT B-4 - Form of Class R Certificate
EXHIBIT B-5 - Form of Reverse of Certificate
EXHIBIT C - DTC Letter of Representations
EXHIBIT D - Mortgage Loan Schedules
EXHIBIT E - Form of Trustee Initial Certification
EXHIBIT F-1 - Form of Trustee Interim Certification
EXHIBIT F-2 - Form of Trustee Final Certification
EXHIBIT G - List of Bankruptcy Loans
EXHIBIT H - Form of Delinquency Report
EXHIBIT I - Certificate Guaranty Insurance Policy
EXHIBIT J - Form of Transferor Certificate
EXHIBIT K - List of Originators
EXHIBIT L - [Reserved]
EXHIBIT M-1 - Form of Transfer Affidavit and Agreement
EXHIBIT M-2 - Form of Investor Representation Letter
EXHIBIT M-3 - Form of Transferor Representation Letter
EXHIBIT M-4 - Form of Rule 144A Investment Representation
EXHIBIT N - Form of Custodial Agreement
EXHIBIT O - Form of Liquidation Report
EXHIBIT P - Form of Principal and Interest Account Letter Agreement
EXHIBIT Q - Form of Notice of Event of Nonpayment
EXHIBIT R - Monthly Information Delivered by Servicer
EXHIBIT S - [Reserved]
EXHIBIT T - Schedule of Mortgage Loans subject to the Home Ownership and Equity
Protection Act of 1994
EXHIBIT U - Destroyed Mortgage Note Affidavit
EXHIBIT V - Schedule of Mortgage Loans that do not have Title Insurance Policies
EXHIBIT W - [Reserved]
EXHIBIT X - [Reserved]
EXHIBIT Y - REO Resales
(x)
12
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement, dated as of _____, 199_
(the "Agreement"), is by and among EQUICREDIT CORPORATION OF AMERICA, as
representative (the "Representative") and as servicer (the "Servicer"), EQCC
RECEIVABLES CORPORATION and EQCC ASSET BACKED CORPORATION (collectively, the
"Depositors") and [TRUSTEE], as trustee (the "Trustee"):
PRELIMINARY STATEMENT
In order to transfer certain Mortgage Loans from the
Depositors to the Trustee for the benefit of the Certificateholders and the
Certificate Insurer, as their interests may appear, and to facilitate the
servicing of certain Mortgage Loans by the Servicer, the Representative, the
Servicer and the Depositors are entering into this Agreement with the Trustee.
The Depositors are transferring the Mortgage Loans to the Trustee for the
benefit of the Certificateholders and the Certificate Insurer, as their
interests may appear, under this Agreement, pursuant to which four classes of
Certificates are being issued, denominated on the face thereof as EQCC Home
Equity Loan Asset Backed Certificates, Series 199_-_, Class A-1F, Class A-1A,
Class X and Class R, respectively, representing in the aggregate a 100%
ownership interest in the Mortgage Loans and all payments and other collections
thereon received on and after _____, 199_ (the "Cut-off Date") (exclusive of the
Representative's Yield and amounts received on and after the Cut-off Date in
respect of interest accrued prior to the Cut-off Date). As of the Cut-off Date,
the Mortgage Loans have an aggregate outstanding principal balance of $________,
the Mortgage Loans in the Adjustable Rate Group have an aggregate outstanding
principal balance of $________, and the Mortgage Loans in the Fixed Rate Group
have an aggregate outstanding principal balance of $________, in each case after
application of payments received by the Depositors on or before such date.
As provided herein, the Trustee will make an election to treat
the assets of the Trust Fund other than the Spread Account and the rights of
Class A Certificateholders to receive payments in respect of their related LIBOR
Interest Carryover as a REMIC (as defined herein) for federal income tax
purposes. For federal income tax purposes the Class A Certificates represent a
beneficial interest in, and the Class X Certificates represent the "regular
interests" in, the Trust REMIC, the Class A-1F Certificates represent the right
to receive payments in respect of Class A-1F LIBOR Interest Carryovers from the
Spread Account or the Certificate Insurer, the Class A-1A Certificates represent
the right to receive payments in respect of Class A-1A LIBOR Interest Carryovers
from the Spread Account and the Class R Certificates represent the sole class of
"residual interest" in the Trust REMIC for purposes of the REMIC Provisions. The
Class X Certificates also represent beneficial interests in the Spread Account,
subject to the obligation to make payments to the Class A-1A Certificates in
respect of Class A-1A LIBOR Interest Carryovers and to the Class A-1F
Certificates in respect of Class A-1F LIBOR Interest Carryovers.
The following table sets forth the designation, type,
aggregate Original Principal Balance and Final Scheduled Distribution Date for
each Class of Certificates comprising the interests in the Trust Fund.
13
Aggregate Original Principal Final Scheduled
Designation Type Balance Distribution Date
--------------------- ----------- ---------------------------- -----------------
Class A-1F Senior $________ ______, 20
Class A-1A Senior $________ ______, 20
Class X Subordinate N/A ______, 20
Class R Residual N/A N/A
---------------
Unless otherwise noted, references in this Agreement to
percentages of Mortgage Loans refer in each case to the percentage of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date, based
on the outstanding principal balances of the Mortgage Loans as of the Cut-off
Date, and giving effect to principal payments received prior to the Cut-off
Date.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless
the context otherwise requires, shall have the following meanings.
Account: The Principal and Interest Account, the Collection
Account, the Spread Account or the Insurance Account.
Accrual Period: With respect to each Distribution Date, the
period from and including the immediately preceding Distribution Date or, in the
case of the initial Accrual Period, _____, 199_, up to but excluding such
Distribution Date.
Act: As defined in Section 4.02.
Actual Loss Severity: With respect to any Distribution Date,
a fraction, expressed as a percentage, (a) the numerator of which equals the sum
of all Mortgage Loan Losses incurred with respect to Liquidated Mortgage Loans
as of the last day of the immediately preceding calendar month and (b) the
denominator of which equals the sum as of such Distribution Date of the
Principal Balances of all Liquidated Mortgage Loans, the amount of such
Principal Balances to be determined in each case as of the last day of the
calendar month immediately preceding the month in which such Mortgage Loan
became a Liquidated Mortgage Loan.
Adjustable Rate Group: The group of Mortgage Loans indicated
on the Mortgage Loan Schedule as belonging to the Adjustable Rate Group.
-2-
14
Adjustable Rate Group Weighted Average Mortgage Interest Rate:
As of any date, the weighted average of the Mortgage Interest Rates on the
Mortgage Loans in the Adjustable Rate Group, adjusted to an actual/360 day
accrual basis.
Administrative Fee Rate: With respect to the Fixed Rate Group
and any Accrual Period, the sum of (i) the Servicing Fee Rate and (ii) _____%
per annum, adjusted to an actual/360 day accrual basis. With respect to the
Adjustable Rate Group and any Accrual Period, _____% per annum, adjusted to an
actual/360 day accrual basis.
Advance: An advance made by the Servicer pursuant to Section
6.08 hereof.
Affiliate: With respect to any specified Person, any other
Person controlling, 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.
Agreement: This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
Assignment of Beneficial Interest: With respect to each
Mortgage Loan secured by an interest in an Illinois Land Trust, an instrument
executed by all of the beneficiaries of such Illinois Land Trust and by any
Person having any interest in such Illinois Land Trust or the power to direct
the trustee under such Illinois Land Trust, which assigns and transfers to the
respective Depositor as a secured party, all of the beneficiaries' rights,
powers, privileges and beneficial interest in such Illinois Land Trust.
Assignment of Mortgage: An assignment of the Mortgage, notice
of transfer or equivalent instrument sufficient, upon proper recordation
thereof, under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the transfer of the Mortgage to the
party named as assignee therein.
Authorized Denominations: The authorized denominations of the
Certificates, as set forth in Section 4.01 of this Agreement.
Available Payment Amount: With respect to any Distribution
Date and each Mortgage Loan Group, an amount equal to (i) the sum of all amounts
described in clauses (i) through (vii), inclusive, of Section 5.03(a) received
by the Servicer or any Subservicer (including any amounts paid by the Servicer
and the Representative and excluding any amounts not required to be deposited in
the Principal and Interest Account pursuant to Section 5.03 and excluding any
amounts withdrawn by the Servicer pursuant to Section 5.04(ii), (iii), (v),
(vi), (vii) and (x) as of the related Determination Date) during the related Due
Period with respect to the Mortgage Loans in such Mortgage Loan Group and on
deposit in the Collection Account on such Distribution Date, plus (ii) the
amount of any Advances remitted pursuant to Section 6.08 for such Distribution
Date with respect to the Mortgage Loans in such Mortgage Loan Group and on
deposit in the Collection Account on such Distribution Date, less (iii) the
Excess Spread with respect to such Distribution Date and such Mortgage Loan
Group. No amount included in the
-3-
15
Available Payment Amount by virtue of being described by any component of the
definition thereof shall be included more than once by virtue of also being
described by any other component or otherwise.
Bankruptcy Loan: Each Mortgage Loan set forth on Exhibit G
hereto.
Base Spread Account Requirement: $_______, provided, however,
that the Certificate Insurer may, in its sole discretion, reduce the Base Spread
Account Requirement to such amount as is specified in a notice delivered to the
Trustee, the Representative and each Rating Agency; provided, further, that such
reduction shall not affect the rating assigned to the Certificates.
Basic Documents: The Transfer Agreement, this Pooling and
Servicing Agreement, the Custodial Agreement, the Certificate Depository
Agreement and the other documents and certificates delivered in connection
therewith.
Basic Principal Amount: With respect to the Mortgage Loans in
a Mortgage Loan Group and any Distribution Date and related Due Period, the sum
(without duplication) of (i) the principal portion of all Monthly Payments
received by the Servicer or any Subservicer in the related Due Period, (ii) all
Curtailments and all Principal Prepayments received during such related Due
Period, (iii) the principal portion of all Insurance Proceeds, Released
Mortgaged Property Proceeds and Net Liquidation Proceeds received during the
related Due Period, (iv) (A) that portion of the purchase price (as set forth in
Section 2.06(b)) of any purchased Mortgage Loans which represents principal and
(B) the principal portion of any Substitution Adjustments deposited into the
Principal and Interest Account as of the related Determination Date and (v) the
Principal Balance of each Mortgage Loan as of the beginning of the related Due
Period which became a Liquidated Mortgage Loan during the related Due Period
(exclusive of any principal payments in respect thereof included in clauses (i)
through (iv) above).
Book-Entry Certificates: A beneficial interest in the
Certificates, the ownership and transfer of which shall be made through book
entries by the Depository as described in Section 4.01 hereof.
Business Day: Any day other than (i) a Saturday or Sunday or
(ii) a day on which banking institutions in the States of [Illinois, New York or
Florida] are authorized or obligated by law or executive order to be closed;
provided, however, that on the Closing Date the Servicer shall provide the
Trustee and the Certificate Insurer with an Officer's Certificate listing the
dates on which banking institutions in the States of [Illinois, Florida and New
York] are authorized or obligated by law or executive order to be closed and the
Servicer shall deliver a new Officer's Certificate annually thereafter to the
Trustee and the Certificate Insurer prior to the expiration of the most recent
list provided. Failure to provide such an Officer's Certificate shall not
constitute an Event of Default; provided that the Trustee and the Certificate
Insurer may rely on the most recently delivered list without further
investigation.
Certificate: Any Class A-1F Certificate, Class A-1A
Certificate, Class X Certificate or Class R Certificate executed by the Trustee
on behalf of the Trust Fund and
-4-
16
authenticated by the Trustee or its authenticating agent, substantially in the
form annexed hereto as Exhibits X-0, X-0, X-0 or B-4, respectively.
Certificate Custodian: Initially, [Trustee]; thereafter any
other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
Certificate Depository Agreement: The agreement, dated as of
the Closing Date, among the Depositors and the initial Depository, relating to
the Class A Certificates.
Certificate Insurance Policy: The certificate guaranty
insurance policy, policy number _________, in the name of the Trustee, dated the
Closing Date, issued by the Certificate Insurer for the benefit of the Class A
Certificateholders, pursuant to which the Certificate Insurer guarantees Insured
Payments, a copy of which is attached hereto as Exhibit I.
Certificate Insurer: [Insurer], or any successor thereof, as
issuer of the Certificate Insurance Policy.
Certificate Owner: With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant.
Certificate Register: As described in Section 4.02 hereof.
Certificateholder or Holder: Each Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that,
solely for the purposes of giving any consent (except any consent required to be
obtained pursuant to Section 10.02), waiver, request or demand pursuant to this
Agreement, any Certificate registered in the name of the Representative, the
Servicer, any Originator or either Depositor, or any Affiliate of any of them,
shall be deemed not to be outstanding and the undivided Percentage Interest
evidenced thereby shall not be taken into account in determining whether the
requisite percentage of Certificates necessary to effect any such consent,
waiver, request or demand has been obtained. For purposes of any consent,
waiver, request or demand of Certificateholders pursuant to this Agreement, upon
the Trustee's or the Certificate Insurer's request, the Servicer, the
Representative, any Originator and either Depositor shall provide to the Trustee
and the Certificate Insurer a notice identifying any of their respective
Affiliates that is a Certificateholder as of the date(s) specified by the
Trustee or the Certificate Insurer in such request.
Class: Collectively, Certificates bearing the same
alphabetical designation (A-1F, A- 1A, X or R).
Class A Certificateholder: A Holder of a Class A Certificate.
Class A Certificates: The Class A-1F Certificates and Class
A-1A Certificates.
Class A Remittance Amount: As to any Distribution Date, the
sum of (i) the Class A-1F Remittance Amount and (ii) the Class A-1A Remittance
Amount.
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Class A-1A Carry-Forward Amount: As of any Distribution Date,
the sum of (i) the amount, if any, by which (x) the Class A-1A Remittance Amount
as of the immediately preceding Distribution Date exceeded (y) the amount of the
actual distribution made to the Class A-1A Certificateholders pursuant to
Section 6.05 hereof, exclusive of any portion of such amount attributable to any
Insured Payment, on such immediately preceding Distribution Date and (ii) if any
portion of the amount in clause (i) represents Insured Payments made by the
Certificate Insurer, interest on such portion, if any, described in clause (i)
above, at the Class A-1A Pass-Through Rate (for the related Accrual Period) from
such immediately preceding Distribution Date.
Class A-1A Certificate: A Certificate designated as an EQCC
Home Equity Loan Asset Backed Certificate, Series 199_-_, Class A-1A
Certificate, and evidencing (i) a beneficial interest in a "regular interest" in
the Trust REMIC for purposes of the REMIC Provisions and (ii) the right to
receive payments in respect of Class A-1A LIBOR Interest Carryovers from the
Spread Account.
Class A-1A Certificateholder: A Holder of a Class A-1A
Certificate.
Class A-1A Interest Remittance Amount: For any Distribution
Date, the aggregate interest accrued during the related Accrual Period at the
Class A-1A Pass-Through Rate on the Class A-1A Principal Balance from time to
time outstanding during such Accrual Period (after giving effect to payments of
principal made on the preceding Distribution Date), calculated on the basis of
actual number of days over a
360-day year.
Class A-1A LIBOR Interest Carryover: An amount, calculated on
any Distribution Date on which the Class A-1A Pass- Through Rate is equal to the
Class A-1A Net Funds Cap Rate, equal to (i) the difference between (a) the
amount of interest the Class A-1A Certificates would be entitled to receive on
such Distribution Date without regard to the Class A-1A Net Funds Cap Rate and
(b) the amount of interest actually distributed to the Class A-1A Certificates
on such Distribution Date, plus (ii) any portion of the amount calculated
pursuant to clause (i) remaining unpaid from prior Distribution Dates and
interest accrued thereon at the then-applicable Class A-1A LIBOR Rate
(calculated without regard to the Class A-1A Net Funds Cap Rate).
Class A-1A LIBOR Rate: For any Accrual Period, LIBOR as of
the related LIBOR Determination Date plus (i)___% on each Distribution Date on
or prior to the Optional Purchase Date and (ii) ____% on each Distribution Date
following the Optional Purchase Date.
Class A-1A Net Funds Cap Rate: With respect to any Accrual
Period, a rate equal to the Adjustable Rate Group Weighted Average Mortgage
Interest Rate as of the first day of the related Due Period less either (i)
_____% per annum, with respect to the first twelve Accrual Periods or (ii)
_____% per annum, with respect to each subsequent Accrual Period, in each case
adjusted to an actual/360 day accrual basis.
Class A-1A Pass-Through Rate: For the initial Accrual Period,
______% and for any Accrual Period thereafter, the lesser of the Class A-1A
LIBOR Rate for such Accrual Period and the Class A-1A Net Funds Cap Rate for
such Accrual Period.
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Class A-1A Principal Balance: As of any date of
determination, the Original Class A-1A Principal Balance, reduced by the sum of
all amounts (including, except for purposes of effecting the Certificate
Insurer's subrogation rights, that portion of Insured Payments, if any, made in
respect of principal) previously distributed to Class A-1A Certificateholders in
respect of principal.
Class A-1A Principal Remittance Amount: As to any
Distribution Date, the lesser of (A) the Class A-1A Principal Balance as of such
Distribution Date and (B) the sum of (a) the Basic Principal Amount for the
Adjustable Rate Group for such Distribution Date and (b) the Class A-1A
Carry-Forward Amount.
Class A-1A Remittance Amount: As to any Distribution Date,
the sum of (i) the Class A-1A Principal Remittance Amount and (ii) the Class
A-1A Interest Remittance Amount.
Class A-1F Carry-Forward Amount: As of any Distribution Date,
the sum of (i) the amount, if any, by which (x) the Class A-1F Remittance Amount
as of the immediately preceding Distribution Date exceeded (y) the amount of the
actual distribution made to the Class A-1F Certificateholders pursuant to
Section 6.05 hereof, exclusive of any portion of such amount attributable to any
Insured Payment, on such immediately preceding Distribution Date and (ii) if any
portion of the amount in clause (i) represents Insured Payments made by the
Certificate Insurer, interest on such portion, if any, described in clause (i)
above, at the Class A-1F Pass-Through Rate from such immediately preceding
Distribution Date.
Class A-1F Certificate: A Certificate designated as an EQCC
Home Equity Loan Asset Backed Certificate, Series 199_-_, Class A-1F
Certificate, and evidencing for federal income tax purposes, (i) a beneficial
interest in a "regular interest" in the Trust REMIC for purposes of the REMIC
Provisions and (ii) the right to receive payments in respect of Class A-1F LIBOR
Interest Carryovers from the Spread Account.
Class A-1F Certificateholder: A Holder of a Class A-1F
Certificate.
Class A-1F Interest Remittance Amount: For any Distribution
Date, the aggregate interest accrued during the related Accrual Period at the
Class A-1F Pass-Through Rate, on the Class A-1F Principal Balance outstanding
during such Accrual Period (after giving effect to payments of principal made on
the preceding Distribution Date) calculated on the basis of actual number of
days over a 360 day year.
Class A-1F LIBOR Interest Carryover: An amount, calculated on
any Distribution Date on which the Class A-1F Pass- Through Rate is equal to the
Class A-1F Net Funds Cap Rate, equal to (i) the difference between (a) the
amount of interest the Class A-1F Certificates would be entitled to receive on
such Distribution Date without regard to the Class A-1F Net Funds Cap Rate and
(b) the amount of interest actually distributed to the Class A-1F Certificates
on such Distribution Date, plus (ii) any portion of the amount calculated
pursuant to clause (i) remaining unpaid from prior Distribution Dates and
interest accrued thereon at the then-applicable Class A-1F LIBOR Rate
(calculated without regard to the Class A-1A Net Funds Cap Rate).
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Class A-1F LIBOR Rate: For any Accrual Period, LIBOR as of
the related LIBOR Determination Date plus (i)___% on each Distribution Date on
or prior to the Optional Purchase Date and (ii) ____% on each Distribution Date
following the Optional Purchase Date.
Class A-1F Net Funds Cap Rate: With respect to any Accrual
Period, a rate equal to the Fixed Rate Group Weighted Average Mortgage Interest
Rate as of the first day of the related Due Period less either (i) _____% per
annum, with respect to the first twelve Accrual Periods or (ii) _____% per
annum, with respect to each subsequent Accrual Period, in each case adjusted to
an actual/360 day accrual basis.
Class A-1F Pass-Through Rate: For the initial Accrual Period,
______% and for any Accrual Period thereafter, the lesser of the Class A-1F
LIBOR Rate for such Accrual Period and the Class A-1F Net Funds Cap Rate for
such Accrual Period.
Class A-1F Principal Balance: As of any date of
determination, the Original Class A-1F Principal Balance, reduced by the sum of
all amounts (including, except for purposes of effecting the Certificate
Insurer's subrogation rights, that portion of Insured Payments, if any, made in
respect of principal) previously distributed to Class A-1F Certificateholders in
respect of principal.
Class A-1F Principal Remittance Amount: As to any
Distribution Date, the lesser of (A) the Class A-1F Principal Balance as of such
Distribution Date and (B) the sum of (a) the Basic Principal Amount for the
Fixed Rate Group for such Distribution Date and (b) the Class A-1F Carry-Forward
Amount.
Class A-1F Remittance Amount: As to any Distribution Date,
the sum of (i) the Class A-1F Principal Remittance Amount and (ii) the Class
A-1F Interest Remittance Amount.
Class Principal Balance: As of any date of determination,
each of the Class A-1F Principal Balance and the Class A-1A Principal Balance.
Class R Certificate: A Certificate designated as an EQCC Home
Equity Loan Asset Backed Certificate, Series 199_-_, Class R Certificate, and
evidencing an interest designated as the "residual interest" in the Trust REMIC
for purposes of the REMIC Provisions.
Class R Certificateholder: A Holder of a Class R Certificate.
Class X Certificate: A Certificate designated as an EQCC Home
Equity Loan Asset Backed Certificate, Series 199_-_, Class X Certificate
evidencing (i) a "regular interest" in the Trust REMIC for purposes of the REMIC
Provisions and (ii) rights under the Spread Account as described herein.
Class X Certificateholder: A Holder of a Class X Certificate.
Class X-A Component Remittance Amount: For any Distribution
Date, the product of (i) the excess, if any, of (a) the Net Adjustable Rate
Group Weighted Average Mortgage Interest Rate over (b) the Class A-1A Pass-
Through Rate for the related Accrual
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Period and (ii) the Class A-1A Principal Balance for such Distribution Date
(before giving effect to any principal distributions on such Distribution Date).
Class X-F Component Remittance Amount: For any Distribution
Date, the product of (i) the excess, if any, of (a) the Net Fixed Rate Group
Weighted Average Mortgage Interest Rate over (b) the Class A-1F Pass- Through
Rate for the related Accrual Period and (ii) the Class A-1F Principal Balance
for such Distribution Date (before giving effect to any principal distributions
on such Distribution Date).
Class X Remittance Amount: An amount equal to the sum of the
Class X-A Component Remittance Amount and the Class X-F Component Remittance
Amount.
Closing Date: _____, 199_.
Code: The Internal Revenue Code of 1986, as amended from time
to time.
Collections: For any Due Period, the amounts collected by the
Servicer with respect to the Mortgage Loans set forth in Section 5.03(a),
clauses (i)-(viii) that are required to be deposited to the Collection Account
pursuant to Section 5.04 with respect to the related Distribution Date (and not
including amounts that are permitted to be withdrawn from the Principal and
Interest Account pursuant to Section 5.04).
Collection Account: The collection account established and
maintained by the Trustee pursuant to Section 6.01 hereof.
Combined Loan-To-Value Ratio or CLTV: With respect to any
Mortgage Loan, the ratio (expressed as a percentage) of (a) the sum of the
original principal balance of such Mortgage Loan and the outstanding principal
balance of any related First Lien as of the date of origination of the Mortgage
Loan, divided by (b) (i) the lesser of (1) the value of the related Mortgaged
Property, based upon the appraisal made at the time such Mortgage Loan was
originated, or (2) the purchase price of the Mortgaged Property if the Mortgage
Loan proceeds were used to purchase the Mortgaged Property or (ii) in the case
of a Mortgage Loan that has been deemed reissued for purposes of Section 1001 of
the Code as a result of modifications thereto, the value of the Mortgaged
Property based upon the appraisal made at the date of the most recent deemed
reissuance.
Commission: The Securities and Exchange Commission.
Corporate Trust Office: With respect to the Trustee, the
principal office at which at any particular time the corporate trust business of
the Trustee shall be principally administered, which offices at the Closing Date
are located at [Trustee], ______________________.
Cross-over Date: The date on which the Subordinated Amount is
reduced to zero.
Cumulative Excess Spread Receipts: As of any date of
determination, the aggregate amount of Excess Spread from and after the Closing
Date paid to the Class A
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Certificateholders pursuant to Section 6.09(b)(ii), to the extent attributable
to Mortgage Loan Losses.
Cumulative Losses: As of any date of determination, the
aggregate Mortgage Loan Losses for all Due Periods since the Cut-off Date.
Current CLTV: With respect to any Bankruptcy Loan, the ratio
(expressed as a percentage) of (a) the sum of (i) the outstanding principal
balance as of the Cut-off Date of such Mortgage Loan and (ii) the outstanding
principal balance of any related First Lien as of the Cut-off Date divided by
(b) the current appraised value of the related Mortgaged Property, as determined
by an independent fee appraiser acceptable to the Certificate Insurer within 60
days of the Closing Date.
Curtailment: With respect to a Mortgage Loan, any payment of
principal received in any month during a Due Period as part of a payment which
is neither intended to satisfy the Mortgage Loan in full nor to cure a
delinquency.
Custodial Agreement: The agreement for the retention of the
Mortgage Files initially in the form attached hereto as Exhibit N.
Custodian: Initially, with respect to all Mortgage Loans,
[Custodian] and thereafter, any successor custodian approved by the Certificate
Insurer and appointed pursuant to the Custodial Agreement, which is not
affiliated with the Servicer, the Representative, the Depositors or the
Originators.
Cut-off Date: _____, 199_.
Default: Any occurrence that is, or with notice or the lapse
of time or both would become, a Servicer Default under Section 10.01 hereof.
Definitive Certificates: As set forth in Section 4.01 hereof.
Deleted Mortgage Loan: A Mortgage Loan replaced by or to be
replaced by a Qualified Substitute Mortgage Loan.
Depositor: Either EQCC Asset Backed Corporation or EQCC
Receivables Corporation, each of which is a direct or an indirect wholly-owned
subsidiary of the Representative.
Depository: Initially, The Depository Trust Company, the
nominee of which is Cede & Co., as the registered Holder of the Book Entry
Certificates. The Depository shall at all times constitute a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
Depository Participant: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
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Destroyed Mortgage Note: A Mortgage Note the original of
which was permanently lost or destroyed and has not been replaced.
Destroyed Mortgage Note Affidavit: An affidavit in the form
of Exhibit U delivered pursuant to Section 2.04(a)(i)(B) with respect to a
Destroyed Mortgage Note.
Determination Date: With respect to each Distribution Date,
the seventh Business Day of the month in which such Distribution Date occurs.
Disqualified Non-United States Person: A transferee of a
Class R Certificate other than a person that (i) is a United States Person or
(ii) is a Non-United States Person that holds a Class R 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 (iii) is a Non-United States 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 Class R Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of a Class R Certificate will not be
disregarded for federal income tax purposes.
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 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. Notwithstanding the
foregoing, a corporation will not be treated as an instrumentality of the United
States or of any state or political subdivision thereof if all of its activities
are subject to tax and a majority of its board of directors is not selected by
such governmental unit. The terms "United States" and "international
organization" shall have the meanings set forth in Section 7701 of the Code.
Distribution Date: The [15th] day of any month, or if such
[15th] day is not a Business Day, the first Business Day immediately following,
commencing on _____, 199_.
Due Date: The day of the month on which the Monthly Payment
is due from the Mortgagor on a Mortgage Loan.
Due Period: With respect to any Distribution Date, the
calendar month immediately preceding the calendar month in which such
Distribution Date occurs.
Eligible Account: Either (A) a segregated account or
segregated accounts maintained with an institution whose deposits are insured by
the Bank Insurance Fund or the Savings Association Insurance Fund of the FDIC,
(x) the unsecured and uncollateralized debt obligations of which shall be rated
"__" or better by [Rating Agency] or have the highest short-term rating by
[Rating Agency] and (y) the unsecured and uncollateralized debt obligations of
which shall be rated A1 or better by [Rating Agency] and have the highest
short-term rating by
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[Rating Agency] and which is either (i) a federal savings and loan association
duly organized, validly existing and in good standing under the federal banking
laws, (ii) an institution duly organized, validly existing and in good standing
under the applicable banking laws of any state, (iii) a national banking
association duly organized, validly existing and in good standing under the
federal banking laws, (iv) a principal subsidiary of a bank holding company, or
(v) approved in writing by the Certificate Insurer, [Rating Agency] and [Rating
Agency] or (B) a segregated trust account or accounts maintained with the
corporate trust department of a federal or state chartered depository
institution or trust company, having capital and surplus of not less than
$50,000,000, acting in its fiduciary capacity, and has a rating from [Rating
Agency] for long-term deposits of at least "___". Any Eligible Accounts
maintained with the Trustee shall conform to the preceding clause (B).
EquiCredit: EquiCredit Corporation of America.
Event of Nonpayment: An event of nonpayment shall occur with
respect to any Distribution Date if the amount remitted by the Servicer pursuant
to Sections 5.04(i), 6.04(e) and 6.08 and on deposit in the Collection Account
for such Distribution Date, plus any amounts withdrawn from the Spread Account
pursuant to Section 6.09(b)(ii) and on deposit in the Collection Account, that
are not subject to any automatic stay under Section 362 of the United States
Bankruptcy Code pursuant to an order of a United States bankruptcy court of
competent jurisdiction, will not, taken together, be sufficient to pay the sum
of (X) the Class A Remittance Amount (exclusive of the portion of the Class A-1F
Carry-Forward Amount and the Class A-1A Carry-Forward Amount representing
amounts previously paid to the Class A-1F Certificateholders and the Class A-1A
Certificateholders, respectively, as Insured Payments) and (Y) the amount to be
withdrawn from the Collection Account for deposit into the Insurance Account
pursuant to Section 6.02(i) in respect of such Distribution Date, unless such
insufficiency results from a failure by the Certificate Insurer to perform in
accordance with the terms of this Agreement or the Certificate Insurance Policy
or a failure by the Trustee to perform in accordance with this Agreement.
Excess Proceeds: With respect to any Liquidated Mortgage
Loan, the excess, if any, of (a) the Net Liquidation Proceeds received in
respect thereof over (b) the Principal Balance of such Mortgage Loan as of the
date such Mortgage Loan became a Liquidated Mortgage Loan plus accrued but
unpaid interest thereon at the Mortgage Interest Rate.
Excess Spread: With respect to any Distribution Date, the sum
of (A) the excess (if any) of (a) the aggregate interest received or advanced,
pursuant to Section 6.08, for the related Due Period, on the Mortgage Loans in
the Fixed Rate Group at their respective Mortgage Interest Rates, over (b) the
sum of (i) interest accrued on the Class A-1F Certificates since the immediately
prior Distribution Date, (ii) the product of (x) 1/12th of the applicable
Servicing Fee Rate and (y) the aggregate of the principal balances of the
Mortgage Loans in the Fixed Rate Group on which interest for such Due Period was
calculated and (iii) the product of (x) 1/12th of _____% per annum and (y) the
aggregate of the principal balances of the Mortgage Loans in the Fixed Rate
Group on the first day of the related Due Period and (B) the excess (if any) of
(x) the aggregate interest received or advanced, pursuant to Section 6.08, for
the related Due Period, on the Mortgage Loans in the Adjustable Rate Group at
their respective Mortgage Interest Rates, over (b) the sum of (i) interest
accrued on the Class A-1A Certificates since the immediately
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prior Distribution Date, (ii) the product of (x) 1/12th of the applicable
Servicing Fee Rate and (y) the aggregate of the principal balances of the
Mortgage Loans in the Adjustable Rate Group on which interest for such Due
Period was calculated and (iii) the product of (x) 1/12th of _____% per annum
and (y) the aggregate of the principal balances of the Mortgage Loans in the
Adjustable Rate Group on the first day of the related Due Period.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
FDIC: The Federal Deposit Insurance Corporation and any
successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation and any
successor thereto.
Fidelity Bond: As described in Section 5.09.
Final Scheduled Distribution Date: With respect to each Class
of Certificates, as specified in the table under the Preliminary Statement.
First Lien: With respect to any Mortgage Loan secured by a
second priority lien, the mortgage loan relating to the corresponding Mortgaged
Property secured by a first priority lien.
Fixed Rate Group: The group of Mortgage Loans indicated on
the Mortgage Loan Schedule as belonging to the Fixed Rate Group.
Fixed Rate Group Weighted Average Mortgage Interest Rate: As
of any date, the weighted average of the Mortgage Interest Rates on the Mortgage
Loans in the Fixed Rate Group, adjusted to an actual/360 day accrual basis.
FNMA: Xxxxxx Mae and any successor thereto.
Holder: A Certificateholder.
Illinois Land Trust: A trust formed under a trust agreement
between the trustee and one or more beneficiaries named therein, pursuant to
which such trustee holds legal and equitable title to a Mortgaged Property
located in the State of Illinois and such beneficiaries are the owners of the
beneficial interest in such trust.
Independent: When used with respect to any specified Person,
that the Person (i) does not have any direct financial interest or any material
indirect financial interest in the Depositors, the Representative, the Servicer,
the Originators or any Affiliate of any of the foregoing Persons and (ii) is not
connected with the Representative, the Servicer, the Originators or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
Initial Premium Fee Recovery Amount: With respect to any
Distribution Date, the product of (i) 1/12th of ____% and (ii) the excess of (A)
the sum of the Class A-1F Principal Balance and the Class A-1A Principal Balance
immediately prior to giving effect to distributions
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of principal and interest on the Certificates over (B) the sum of the Class A-1F
Principal Balance and the Class A-1A Principal Balance immediately after giving
effect to distributions of principal and interest on the Certificates.
Insurance Account: The insurance account established and
maintained by the Trustee in accordance with Section 6.03 hereof.
Insurance Proceeds: Proceeds paid to the Trustee or the
Servicer by any insurer (except the Certificate Insurer) or by the Servicer
pursuant to a deductible clause under a blanket policy insuring against fire and
hazards of extended coverage on all of the Mortgage Loans pursuant to Section
5.08, in either event pursuant to any insurance policy covering a Mortgage Loan,
Mortgaged Property, or REO Property or any other insurance policy net of any
expenses which are incurred by the Servicer or the Trustee in connection with
the collection of such proceeds and not otherwise reimbursed to the Servicer,
other than proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with customary second
mortgage servicing procedures.
Insured Payment: As of each Distribution Date, the amount, if
any, by which (A) the Class A Remittance Amount (excluding from such amounts any
amount thereof attributable to clause (iv) of the definition of "Basic Principal
Amount," to the extent such amount is due but not paid by the Representative,
the Depositors, or the Originators) exceeds (B) the sum of (x) the Available
Payment Amounts for each Mortgage Loan Group (minus the amount withdrawable from
the Collection Account pursuant to Sections 6.02(i), (ii) and (iii)) plus any
amount transferred from the Spread Account to the Collection Account pursuant to
Section 6.09(b)(ii) and (y) the aggregate amount of any previous Insured
Payments for which the Certificate Insurer has not been reimbursed pursuant to
Section 6.05(c); provided, however, that the determination of Insured Payments
shall not be affected in any way by any recharacterization of the transactions
contemplated by this Agreement as a financing in any bankruptcy, insolvency or
similar proceeding to which the Depositors or the Originators may be subject,
and the Available Payment Amount shall for the purpose of this definition be
deemed to be decreased by the amount thereof that has been deposited in the
Collection Account but may not be withdrawn therefrom pursuant to an order of a
United States bankruptcy court of competent jurisdiction imposing a stay
pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code.
Latest Maturity Date: With respect to any Class of
Certificates, its Final Scheduled Distribution Date.
LIBOR: For any Accrual Period and the Class A Certificates,
the London interbank offered rate for one-month United States dollar deposits
determined by the Trustee for each Accrual Period in accordance with the
provisions of Section 4.05.
LIBOR Business Day: Any Business Day on which banks are open
for dealing in foreign currency and exchange in London, England, the City of New
York and Chicago, Illinois.
LIBOR Determination Date: With respect to any Accrual Period,
the second LIBOR Business Day preceding such Accrual Period (which for the
initial Accrual Period shall be _____, 199_).
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LIBOR Interest Carryover: Each of the Class A-1A LIBOR
Interest Carryover and Class A-1F LIBOR Interest Carryover.
Lien: Any security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach by operation of law.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan or REO
Property as to which the Servicer has determined that all amounts which it
reasonably and in good faith expects to recover have been recovered from or on
account of such Mortgage Loan.
Liquidation Proceeds: Cash, including Insurance Proceeds,
proceeds of any REO Disposition, amounts required to be deposited in the
Principal and Interest Account pursuant to Section 5.10 hereof, and any other
amounts received in connection with the liquidation of defaulted Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise.
Loss Coverage Ratio: With respect to any Distribution Date, a
fraction, expressed as a percentage, (a) the numerator of which equals the sum
of (i) the product of (A) the sum of (I) 25% of the aggregate Principal Balance
of all Mortgage Loans that are 30-59 days delinquent, plus (II) 50% of the
aggregate Principal Balance of all Mortgage Loans that are 60-89 days
delinquent, plus (III) 100% of the aggregate Principal Balance of all Mortgage
Loans that are 90 or more days delinquent, in each case as of the close of
business on the last day of the immediately preceding calendar month and
including Mortgage Loans that are in foreclosure or that have been converted to
REO Properties, and (B) the greater of (I) the Original Loss Severity and (II)
prior to the Loss Trigger Date, zero, and on or after the Loss Trigger Date, the
Actual Loss Severity, plus (ii) the Cumulative Losses, and (b) the denominator
of which equals the product of (I) the Loss Coverage Requirement and (II) the
Original Pool Principal Balance.
Loss Coverage Requirement: _____%.
Loss Trigger Date: The date that is the earlier of (i) the
30th Distribution Date and (ii) the first Distribution Date after which the
Trust has incurred Mortgage Loan Losses with respect to at least 20 Liquidated
Mortgage Loans.
Majority in Aggregate Voting Interest: Class A and Class X
Certificateholders representing Class A and Class X Certificates voting together
as a single class evidencing an aggregate Voting Interest of at least 51% when
expressed as a percentage rounded to four decimal places.
Monthly Excess Spread Amount: On any Distribution Date, the
amount equal to the product of 100% and the amount of the Excess Spread as of
such Distribution Date; provided, however, that the percentage set forth above
may be reduced at any time, solely at the discretion of the Certificate Insurer,
at which time written notice shall be sent to the Representative, the Trustee,
[Rating Agency] and [Rating Agency].
Monthly Payment: The scheduled monthly payment of principal
and/or interest required to be made by a Mortgagor on the related Mortgage Loan,
as set forth in the related Mortgage Note.
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Monthly Premium: The monthly premium payable to the
Certificate Insurer pursuant to the Certificate Insurance Policy and the letter
agreement dated as of the Closing Date, among the Certificate Insurer and the
Depositors.
Mortgage: The mortgage, deed of trust or other instrument
creating a first or second lien on the Mortgaged Property.
Mortgage File: As described in Exhibit A.
Mortgage Impairment Insurance Policy: As defined in Section
5.08.
Mortgage Interest Rate: With respect to a Mortgage Loan in
the Fixed Rate Group, the fixed per annum rate of interest borne by a Mortgage
Note, as shown on the Mortgage Loan Schedule, and with respect to a Mortgage
Loan in the Adjustable Rate Group and any date of determination, the per annum
rate of interest for the related Due Period computed in accordance with the
related Mortgage Note, subject to any minimum rate, maximum rate and periodic
cap on such rate applicable from time to time to the calculation of interest
thereon as set forth in the related Mortgage Note.
Mortgage Loan: An individual mortgage loan which is assigned
and transferred to the Trustee pursuant to this Agreement, together with the
rights and obligations of a holder thereof and payments thereon and proceeds
therefrom, the Mortgage Loans originally subject to this Agreement being
identified on the Mortgage Loan Schedules annexed hereto as Exhibit D. Any
mortgage loan which, although intended by the parties hereto to have been, and
which purportedly was, transferred and assigned to the Trustee by the applicable
Depositor, in fact was not transferred and assigned to the Trustee for any
reason whatsoever, including, without limitation, the incorrectness of the
statement set forth in Section 3.02(g) hereof with respect to such mortgage
loan, shall nevertheless be considered a "Mortgage Loan" for all purposes of
this Agreement. As applicable, Mortgage Loan shall be deemed to refer to the
related REO Property.
Mortgage Loan Group: Either the Fixed Rate Group or the
Adjustable Rate Group.
Mortgage Loan Losses: With respect to any Distribution Date,
the sum of the following amounts for each Mortgage Loan that became a Liquidated
Mortgage Loan during the related Due Period: the amount, if any, by which (i)
the sum of (A) the Principal Balance of such Mortgage Loan (determined
immediately before such Mortgage Loan became a Liquidated Mortgage Loan) and (B)
accrued and unpaid interest thereon at the Mortgage Interest Rate to the date on
which such Mortgage Loan became a Liquidated Mortgage Loan exceeds (ii) the Net
Liquidation Proceeds received during such Due Period in connection with the
liquidation of such Mortgage Loan which have not theretofore been used to reduce
the Principal Balance of such Mortgage Loan. For purposes of this definition, a
Mortgage Loan as to which the related Mortgaged Property is held by the Trust
Fund shall be deemed to have continued to accrue interest at the related
Mortgage Interest Rate.
Mortgage Loan Schedule: The schedule of Fixed Rate Group
Mortgage Loans and the schedule of Adjustable Rate Group Mortgage Loans, each
attached hereto as Exhibit D as each may be amended to reflect Qualified
Substitute Mortgage Loans, such schedule
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identifying each applicable Mortgage Loan by address of the Mortgaged Property
and the name of the Mortgagor and setting forth as to each such Mortgage Loan
the following information: (i) the Principal Balance as of the Cut-off Date,
(ii) the account number, (iii) the original principal amount, (iv) the CLTV as
of the date of the origination of the related Mortgage Loan, (v) the Due Date,
(vi) the Mortgage Interest Rate, (vii) the first date on which a Monthly Payment
is due under the Mortgage Note, (viii) the Monthly Payment, (ix) the original
stated maturity date of the Mortgage Note, (x) the remaining number of months to
maturity as of the Cut-off Date and (xi) the Mortgaged Property State.
Mortgage Note: The note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Pool: The Mortgage Loans indicated on the Mortgage
Loan Schedule.
Mortgaged Property: The underlying property securing a
Mortgage Loan, consisting of a fee simple estate or, with respect to certain
properties located in Maryland, a leasehold estate, in a single parcel of land
improved by a Residential Dwelling.
Mortgaged Property State: The state in which the Mortgaged
Property related to a Mortgage Loan is located, as set forth on the Mortgage
Loan Schedule.
Mortgagor: The obligor on a Mortgage Note.
Net Adjustable Rate Group Weighted Average Mortgage Interest
Rate: With respect to any Accrual Period, a rate equal to the Adjustable Group
Weighted Average Mortgage Interest Rate less the applicable Administrative Fee
Rate.
Net Fixed Rate Group Weighted Average Mortgage Interest Rate:
With respect to any Accrual Period, a rate equal to the Fixed Rate Group
Weighted Average Mortgage Interest Rate less the applicable Administrative Fee
Rate.
Net Liquidation Proceeds: Liquidation Proceeds net of any
reimbursements to the Servicer made therefrom pursuant to Section 5.04(ii).
Nondisqualification Opinion: An Independent Opinion of
Counsel addressed to the Trustee that a contemplated action will neither cause
the Trust REMIC to fail to qualify as a REMIC at any time the Class A
Certificates are outstanding nor cause an unindemnified "prohibited transaction"
or a "prohibited contribution" tax to be imposed on the Trust REMIC.
Nonrecoverable Advances: With respect to any Mortgage Loan,
(i) any Servicing Advance or Advance previously made and not reimbursed pursuant
to Section 5.04(ii), or (ii) a Servicing Advance proposed to be made, in respect
of any Mortgage Loan or REO Property which, in the good faith business judgment
of the Servicer would not be ultimately recoverable from late collections,
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
or otherwise.
Non-United States Person: Any Person other than a United
States Person.
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Officer's Certificate: A certificate delivered hereunder or
under any other Basic Document signed by the President or a Vice President or an
Assistant Vice President of the Representative, a Depositor, the Trustee or the
Servicer, as required hereunder or thereunder.
Opinion of Counsel: A written opinion of counsel delivered
hereunder or under any Basic Document, reasonably acceptable to the Trustee, and
experienced in matters relating to the subject of such opinion; except that any
opinion of counsel relating to (a) the qualification of the Trust REMIC as a
REMIC or (b) compliance with the REMIC Provisions must be an opinion of counsel
who (i) is in fact Independent of the Representative and the Servicer, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Representative or the Servicer or in an affiliate thereof and
(iii) is not connected with the Representative or Servicer as an officer,
employee, director or person performing similar functions.
Optional Purchase Date: As defined in Section 11.01.
Original Class A-1F Principal Balance: $____________.
Original Class A-1A Principal Balance: $___________.
Original Pool Principal Balance: The Pool Principal Balance
as of the Cut-off Date, which amount is equal to $__________.
Original Loss Severity: _________%.
Originator: Any of the entities listed on Exhibit K hereto,
each of which is an "Originator" pursuant to the Transfer Agreement and is a
direct or indirect subsidiary of Bank America Corporation.
Owner-Occupied Mortgaged Property: A Residential Dwelling
that the related Mortgagor represented an intent to occupy as such Mortgagor's
primary or secondary residence at the origination of the Mortgage Loan.
Ownership Interest: As to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial, as owner or as pledgee.
Pass-Through Rate: Either the Class A-1F Pass-Through Rate or
the Class A-1A Pass-Through Rate.
Percentage Interest: With respect to a Class A-1F or Class
A-1A Certificate, the portion of the Certificates evidenced by such Class A-1F
or Class A-1A Certificate, respectively, expressed as a percentage rounded to
four decimal places, equal to a fraction the numerator of which is the
denomination represented by such Class A-1F or Class A-1A Certificate,
respectively, and the denominator of which is the Original Class A-1F Principal
Balance or Original Class A-1A Principal Balance, respectively. With respect to
a Class X Certificate or Class R Certificate, the portion of the Class evidenced
thereby as stated on the face of such Certificate.
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Performance Default: The Servicing Default described in
clause (vii) of Section 10.01(a).
Permitted Instruments: As used herein, Permitted Instruments
shall include the following:
(i) (A) direct general obligations of, or
obligations fully and unconditionally guaranteed as to the timely
payment of principal and interest by, the United States or any agency
or instrumentality thereof, provided such obligations are backed by the
full faith and credit of the United States, and (B) Federal Housing
Administration debentures, FHLMC senior debt obligations, and FNMA
senior debt obligations assigned ratings in at least one of the top two
long-term rating categories by [Rating Agency] and [Rating Agency], but
excluding any of such securities described in clauses (A) and (B) whose
terms do not provide for payment of a fixed dollar amount upon maturity
or call for redemption;
(ii) federal funds, certificates of deposit, time
and demand deposits and banker's acceptances (in each case having
maturities of not more than 365 days) of any bank or trust company
incorporated under the laws of the United States or any state thereof,
provided that (A) the short-term debt obligations of such bank or trust
company at the date of acquisition thereof have been rated "___" or
better by [Rating Agency] (or, if so consented to by the Certificate
Insurer, "___" or better by [Rating Agency]) and (B) the short-term and
long-term debt obligations of such bank or trust company at the date of
acquisition thereof have been rated "_______" and "___" or better,
respectively, by [Rating Agency];
(iii) deposits of any bank or savings and loan
association which has combined capital, surplus and undivided profits
of at least $_______, which deposits are not in excess of the
applicable limits insured by the Bank Insurance Fund or the Savings
Association Insurance Fund of the FDIC, provided that the long-term
deposits of such bank or savings and loan association are rated at
least "___" by [Rating Agency] and "___" by [Rating Agency];
(iv) commercial paper (having original maturities
of not more than 180 days) rated "___" or better by [Rating Agency] and
_______ by [Rating Agency];
(v) investments in money market funds rated "___"
or "___" by [Rating Agency] and "___" by [Rating Agency];
(vi) investments in Permitted Instruments on an
overnight basis in investment accounts maintained at the Trustee;
provided, however, that any such account shall be an Eligible Account;
and
(vii) any other obligation or security acceptable
to the Rating Agencies and the Certificate Insurer (as certified by a
letter from each Rating Agency and the Certificate Insurer to the
Trustee); provided, that no instrument described hereunder shall
evidence either the right to receive (a) only interest with respect to
the obligations underlying such instrument or (b) both principal and
interest payments derived from
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obligations underlying such instrument and the interest and principal
payments with respect to such instrument provided a yield to maturity
at par greater than 120% of the yield to maturity at par of the
underlying obligations; and provided, further, that no instrument
described hereunder may be purchased at a price greater than par if
such instrument may be prepaid or called at a price less than its
purchase price prior to stated maturity; and provided, further that no
instrument shall be a Permitted Instrument unless such instrument is a
"permitted investment" within the meaning of Section 860G(a)(5) of the
Code.
Permitted Transferee: Any Person other than a Disqualified
Organization or a Disqualified Non-United States Person, or an agent or nominee
acting on behalf of a Disqualified Organization or a Disqualified Non-United
States Person.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, national banking association,
unincorporated organization or government or any agency or political subdivision
thereof.
Plan: A Plan filed by a Mortgagor pursuant to the Bankruptcy
Code (11 U.S.C. Section 1321) and either confirmed or pending confirmation by a
court of competent jurisdiction pursuant to the Bankruptcy Code (11 U.S.C.
Section 1325), providing for, among other things, the payment of defaulted
Mortgage Loan payments all of which were due prior to, but in no event after,
the effectiveness of the Plan.
Pool Factor: As of any date of determination, the Pool
Principal Balance as of such date divided by the Original Pool Principal
Balance.
Pool Principal Balance: With respect to either or both
Mortgage Loan Groups, the aggregate Principal Balances of the related Mortgage
Loans, as of any date of determination.
Pre-Plan Interest: With respect to a Bankruptcy Loan, accrued
but unpaid interest relating to the period prior to the filing of the related
Plan.
Pre-Plan Interest Payments: With respect to a Bankruptcy
Loan, payments made by a Mortgagor on account of Pre-Plan Interest.
Principal and Interest Account: The principal and interest
account established and maintained by the Servicer pursuant to Section 5.03
hereof. References herein to any amounts on deposit in the Principal and
Interest Account shall refer only to amounts pertaining to this Agreement.
Principal Balance: With respect to any Mortgage Loan or
related REO Property, at any date of determination, the principal balance of the
Mortgage Loan outstanding as of such date. The Principal Balance of any REO
Property as of the date on which such REO Property became an REO Property shall
be the Principal Balance of the related Mortgage Loan as of the date referred to
in the preceding sentence, and the Principal Balance of a Mortgage Loan at the
time it becomes a Liquidated Mortgage Loan shall be zero.
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Principal Prepayment: Any payment or other recovery of
principal on a Mortgage Loan equal to the outstanding principal balance thereof,
received in advance of the final scheduled Due Date, that is intended to satisfy
a Mortgage Loan in full.
Proceeding: Any suit in equity, action at law or other
judicial or administrative proceeding.
Projected Excess Spread: With respect to any Distribution
Date, five (5) times the amount of the Monthly Excess Spread Amount deposited in
the Spread Account pursuant to Section 6.09(a) hereof as of such Distribution
Date.
Prospectus: The prospectus (including the prospectus
supplement) prepared by the Representative and the Depositors in connection with
the initial issuance and sale of the Class A Certificates.
Qualified Substitute Mortgage Loan: A mortgage loan or
mortgage loans substituted for a Deleted Mortgage Loan pursuant to Section 2.06
or 3.03 hereof, which (i) has or have a mortgage interest rate or rates of not
less than (and not more than two percentage points more than) the Mortgage
Interest Rate for the Deleted Mortgage Loan (which, in the case of a Mortgage
Loan in the Adjustable Rate Group, shall mean a Mortgage Loan having the same
interest rate index, and a margin over such index and a maximum interest rate at
least equal to (and in each case not more than two percentage points more than)
those applicable to the related Deleted Mortgage Loan), (ii) relates or relate
to the same type of Residential Dwelling as the Deleted Mortgage Loan, or
relates to a one- to four-family dwelling, and has or have a lien priority that
is no more junior or subordinate than that of the Deleted Mortgage Loan, (iii)
matures or mature no later than (and not more than one year earlier than) the
Deleted Mortgage Loan, (iv) has or have a Combined Loan-to-Value Ratio or
Combined Loan-to-Value Ratios at the time of such substitution no higher than
the Combined Loan-to-Value Ratio of the Deleted Mortgage Loan, (v) has or have a
principal balance or principal balances (after application of all payments
received on or prior to the date of substitution) equal to or less than the
Principal Balance of the Deleted Mortgage Loan as of such date, (vi) is of equal
or better underwriting program class quality (as described in the Prospectus) as
the Deleted Mortgage Loan, (vii) complies or comply as of the date of
substitution with each representation and warranty set forth in Sections 3.01(b)
and 3.02, (viii) is of the same type, either a balloon loan or fully-amortizing
Mortgage Loan, as the Deleted Mortgage Loan and (ix) would be in the same
Mortgage Loan Group (the Fixed Rate Group or Adjustable Rate Group) as the
related Deleted Mortgage Loan.
Rating Agencies: Collectively, [Rating Agency] and [Rating
Agency].
Reassignment of Assignment of Beneficial Interest: With
respect to each Mortgage Loan secured by an interest in an Illinois Land Trust,
an assignment of the Assignment of Beneficial Interest, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
effect the transfer of the entire beneficial interest in such Illinois Land
Trust to the Depositors and the sale of such beneficial interest to the Trustee
for the benefit of the Certificateholders.
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Record Date: The last day of the calendar month preceding the
month in which each such Distribution Date occurs.
Recordation Trigger: The date on which (i) the long-term
senior unsecured debt of [BankAmerica Corporation] or its successor in interest
is reduced below "__" by [Rating Agency] or below "__" by [Rating Agency] or is
withdrawn.
Reference Banks: [Banks] ; provided that if any of the
foregoing banks are not suitable to serve as a Reference Bank, then any leading
banks selected by the Trustee which are engaged in transactions in Eurodollar
deposits in the international Eurocurrency market (i) with an established place
of business in London, (ii) not controlling, under the control of or under
common control with any Depositor or any affiliate thereof, (iii) whose
quotations appear on the Telerate LIBOR Page on the relevant Interest
Determination Date and (iv) which have been designated as such by the Trustee.
Registered Holder: The Person in whose name a Certificate is
registered on the Certificate Register.
Regular Interests: The Class A Certificates and the Class X
Certificates.
Reimbursable Amounts: As of any date of determination, an
amount payable to the Servicer, the Representative or the Depositors with
respect to (i) the Servicing Advances and Advances reimbursable pursuant to
Section 5.04(ii) not previously reimbursed, (ii) any advances reimbursable
pursuant to Section 9.01 and not previously reimbursed pursuant to Section
6.05(d)(vi), and (iii) any other amounts expressly reimbursable to the Servicer
or the Depositors pursuant to this Agreement.
Released Mortgaged Property Proceeds: As to any Mortgage
Loan, proceeds received by the Servicer in connection with (a) a taking of an
entire Mortgaged Property by exercise of the power of eminent domain or
condemnation or (b) any release of part of the Mortgaged Property from the lien
of the related Mortgage, whether by partial condemnation, sale or otherwise,
which are not released to the Mortgagor in accordance with applicable law,
customary mortgage servicing procedures and this Agreement.
Remainder Excess Spread Amount: As of any Distribution Date,
the amount equal to the excess of the aggregate Excess Spread over the Monthly
Excess Spread Amount.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of the Code, and related provisions, and temporary and final
Treasury regulations promulgated thereunder, as the foregoing may be in effect
from time to time (or proposed, if proposed to be retroactive).
Remittance Report: As defined in Section 6.07.
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REO Disposition: The final sale by the Servicer of a
Mortgaged Property acquired by the Servicer in foreclosure or by deed in lieu of
foreclosure. The proceeds of any REO Disposition constitute part of the
definition of Liquidation Proceeds.
REO Property: As described in Section 5.10.
Representative: EquiCredit Corporation of America, or its
successor in interest.
Representative's Yield: For each Mortgage Loan, the sum of
(i) prepayment penalties and premiums collected on the Mortgage Loans and (ii)
the Servicing Compensation exclusive of the Servicing Fee. The Representative's
Yield is retained by the Representative and is not part of the assets of the
Trust Fund.
Residential Dwelling: Any of the following: (i) a one- to
four-family dwelling, (ii) a unit in a planned unit development, (iii) a unit in
a condominium development, or (iv) a permanently affixed mobile home or a
permanently affixed manufactured housing unit, as defined in the FNMA Selling
Guide, which does not constitute other than real property under state law
provided that such home or housing would qualify as a single family residence
under Section 25(c)(10) of the Code.
Residual Certificate: The Class R Certificates.
Responsible Officer: When used with respect to the Trustee,
any officer assigned to the Corporate Trust Division (or any successor thereto)
with direct responsibility for the administration of this Agreement, including
any Vice President, Assistant Vice President, Senior Trust Officer, Trust
Officer, Assistant Trust Officer, any Assistant Secretary, any trust officer or
any other officer of such Trustee customarily performing functions similar to
those performed by any of the above designated officers and to whom, with
respect to a particular matter, such matter is referred because of such
officer's knowledge of and familiarity with the particular subject. When used
with respect to the Representative, a Depositor, an Originator or the Servicer,
the President or any Vice President, Assistant Vice President, or any Secretary
or Assistant Secretary authorized to perform the actions required, including,
without limitation, each Person whose name appears on a list of Responsible
Officers furnished to the Trustee and the Certificate Insurer on the Closing
Date, as such list may be amended from time to time.
Series: 199_-_.
Servicer: EquiCredit Corporation of America or any successor
appointed as herein provided.
Servicer Default: As specified in Section 10.01(a).
Servicer Employees: As defined in Section 5.09.
Servicing Advances: All reasonable and customary
"out-of-pocket" costs and expenses incurred in the performance by the Servicer
of its servicing obligations which are "unanticipated," within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(iii), including, but not limited to,
the cost of (i) the preservation, restoration and protection of the
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Mortgaged Property, including, without limitation, advances in respect of real
estate taxes and assessments and insurance premiums on fire, hazard and flood
insurance policies and leasehold payments, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of the
REO Property, (iv) compliance with the obligations under Sections 5.02, 5.05 and
5.07, which Servicing Advances are reimbursable to the Servicer to the extent
provided in Section 5.04(ii), and (v) in connection with the liquidation of a
Mortgage Loan, expenditures relating to the purchase or maintenance of the First
Lien pursuant to Section 5.13, for all of which costs and expenses the Servicer
is entitled to reimbursement in accordance with this Agreement. Notwithstanding
anything herein to the contrary, no Servicing Advance shall be required to be
made hereunder if such Servicing Advance would, if made, constitute a
Nonrecoverable Advance. The determination by the Servicer that it has made a
Nonrecoverable Advance or that any proposed Servicing Advance, if made, would
constitute a Nonrecoverable Advance, shall be evidenced by an Officer's
Certificate delivered to the Certificate Insurer, the Depositors and the Trustee
no later than the Business Day following such determination.
Servicing Compensation: The Servicing Fee and other amounts
to which the Servicer is entitled pursuant to Section 7.03.
Servicing Fee: With respect to any Accrual Period, the amount
equal to one month's interest at the Servicing Fee Rate on the aggregate of the
Principal Balances of the Mortgage Loans (calculated on the basis of 30 days
over a 360 day year). The Servicing Fee is payable solely from the interest
portion of (i) Monthly Payments, (ii) Liquidation Proceeds or (iii) Released
Mortgaged Property Proceeds collected by the Servicer or as otherwise provided
in Section 5.04. The Servicing Fee with respect to each Mortgage Loan shall
accrue on the same principal balance on which interest accrues on such Mortgage
Loan. The Servicing Fee includes any Servicing Fees owed or payable to any
Subservicer.
Servicing Fee Rate: With respect to any Mortgage Loan in the
Adjustable Rate Group and any Accrual Period, a rate equal to _____% per annum.
With respect to any Mortgage Loan in the Fixed Rate Group and any Accrual
Period, the lesser of (i) _____% per annum and (ii) a per annum rate equal to
the excess of (a)(1) the Fixed Rate Group Weighted Average Mortgage Interest
Rate, minus (2) _____% per annum, over (b) the Class A-1F Pass-Through Rate.
Servicing Officer: Any officer of the Servicer involved in,
or responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date, as such list may from time to
time be amended.
Specified Spread Account Requirement: As of:
(x) any date on or prior to the thirtieth Distribution Date
(occurring in _______ 20__), the greatest of (a) the Base Spread Account
Requirement as of such date; (b) the sum of the Principal Balances of the three
largest Mortgage Loans as of such date; and (c) two times the excess of (i)
one-half of the aggregate Principal Balance of the Mortgage Loans which are 90
or more days delinquent (including REO Properties) over (ii) the Projected
Excess Spread as of such date;
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(y) any date after the thirtieth Distribution Date (occurring
in _______ 20__), the greatest of (a) the lesser of (A) the Base Spread Account
Requirement as of such date and (B) the product of (x) _____% and (y) the Pool
Principal Balance as of such date; (b) the sum of the Principal Balances of the
three largest Mortgage Loans as of such date; and (c) two times the excess of
(i) one-half of the aggregate Principal Balance of the Mortgage Loans which are
90 or more days delinquent (including REO Properties) over (ii) the Projected
Excess Spread as of such date. Notwithstanding the foregoing, however, the
Specified Spread Account Requirement for any date shall in no event be greater
than the Subordinated Amount as of such date and may be reduced by the
Certificate Insurer at any time after the amount in the Spread Account is equal
to the Base Spread Account Requirement; provided that such reductions shall not
affect the rating assigned by [Rating Agency] or [Rating Agency] to the Class A
Certificates.
Spread Account: The account maintained pursuant to Section
6.09, which shall not be an asset of the Trust REMIC.
Spread Account Amount: As defined in Section 6.09(b)(ii)
hereof.
Spread Account Excess: As defined in Section 6.09(b)(iv)
hereof.
Startup Day: The day designated as such pursuant to Section
2.07 hereof.
Subordinated Amount: (a) The Subordinated Amount as of the
Cut-off Date shall be _____% of the Original Pool Principal Balance (which is
initially equal to $_________).
(b) As of any Distribution Date, the Subordinated Amount
shall equal the Subordinated Amount as of the preceding [Date], minus Cumulative
Excess Spread Receipts since such preceding [Date], through the last day of the
month preceding such Distribution Date. After giving effect to such adjustment,
the Subordinated Amount may be further adjusted on each respective [Date] as
follows to equal:
(i) on each [Date] up to but not including [Date]
the amount, if any, by which (A) _____% of the Original Pool Principal
Balance exceeds (B) Cumulative Excess Spread Receipts since the Cut-off
Date through the last day of August preceding such [Date];
(ii) on [Date], the lesser of (A) the Subordinated
Amount as of the preceding Distribution Date and (B) the sum of (x)
_____% of the Pool Principal Balance at the close of business on [Date]
and (y) _____% of the amount, if any, by which the amount set forth
under (A) exceeds the amount computed under clause (B)(x) of this
paragraph (ii);
(iii) on [Date], the lesser of (A) the Subordinated
Amount as of the preceding Distribution Date and (B) the sum of (x)
_____% of the Pool Principal Balance at the close of business on [Date]
and (y) _____% of the amount, if any, by which the amount set forth
under (A) exceeds the amount computed under clause (B)(x) of this
paragraph (iii);
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(iv) on [Date], the lesser of (A) the Subordinated
Amount as of the preceding Distribution Date and (B) the sum of (x)
_____% of the Pool Principal Balance at the close of business on [Date]
and (y) _____% of the amount, if any, by which the amount set forth
under (A) exceeds the amount computed under clause (B)(x) of this
paragraph (iv);
(v) on [Date], the lesser of (A) the Subordinated
Amount as of the preceding Distribution Date and (B) the sum of (x)
_____% of the Pool Principal Balance at the close of business on [Date]
and (y) _____% of the amount, if any, by which the amount set forth
under (A) exceeds the amount computed under clause (B)(x) of this
paragraph (v); and
(vi) on [Date] and on each [Date], thereafter, the
lesser of (A) the applicable Subordinated Amount on the preceding
[Date], minus Cumulative Excess Spread Receipts since such preceding
[Date], through the last day of the preceding [Date], as appropriate
and (B) _____% of the Pool Principal Balance at the close of business
on such current [Date];
provided, however, that the amount determined for part (B) of clauses (ii)
through (vi) above shall not be less than the sum of the Principal Balances of
the three largest Mortgage Loans at the beginning of each such period. Subject
to the preceding sentence, the Subordinated Amount as of any date other than a
Distribution Date shall be equal to the Subordinated Amount as of the
immediately preceding Distribution Date; and provided, further, however, that in
no event shall the Subordinated Amount be less than zero.
Notwithstanding anything to the contrary herein contained, no
reduction to the Subordinated Amount described in clauses (ii) through (vi)
hereof shall be permitted to take effect if (x) as of [Date], the amount equal
to aggregate Cumulative Excess Spread Receipts exceeds 1% of the Original Pool
Principal Balance or (y) as of any [Date] after [Date], (I) the amount equal to
aggregate Cumulative Excess Spread Receipts exceeds 5% of the Subordinated
Amount in effect on the preceding [Date], or (II) on any Distribution Date
occurring within the annual period immediately preceding such [Date], the
aggregate principal balance of all Mortgage Loans which were 60 or more days
delinquent on such Distribution Date equaled or exceeded _____% of the aggregate
principal balance of all Mortgage Loans outstanding on such Distribution Date.
If, by reason of the application of the provisions of clause (y) of the
immediately preceding sentence, reduction of the Subordinated Amount pursuant to
the provisions of any one of clauses (ii) through (vi) shall not have taken
effect, and, if as of any subsequent [Date], no event shall have occurred the
effect of which would be to prohibit a reduction in the Subordinated Amount as
of such [Date], then the Subordinated Amount shall be reduced on such [Date], to
the amount permitted by the clause which would have otherwise taken effect had
the provisions of the immediately preceding sentence not been applied.
Subservicer: Any Person with whom the Servicer has entered
into a Subservicing Agreement and who satisfies any requirements set forth in
Section 5.01(b) hereof in respect of the qualification of a Subservicer. As of
the Closing Date, the only Subservicers are the Originators (other than
EquiCredit Corporation of America).
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Subservicing Agreement: Any agreement between the Servicer
and any Subservicer relating to subservicing and/or administration of certain
Mortgage Loans as provided in Section 5.01(b), a copy of which shall be
delivered, along with any modifications thereto, to the Certificate Insurer and
the Trustee.
Substitution Adjustment: As to any date on which a
substitution occurs pursuant to Section 2.06 or 3.03, the amount (if any) by
which the aggregate Principal Balances of any Qualified Substitute Mortgage
Loans as of the date of substitution, together with accrued and unpaid interest
thereon (but only to the extent deposited in the Principal and Interest Account
and transferred to the Collection Account), are less than the aggregate of the
Principal Balances (after application of principal payments received on or
before the date of substitution and deposited into the Principal and Interest
Account), together with accrued and unpaid interest thereon to the date of
substitution, of the related Deleted Mortgage Loans plus any unreimbursed
Servicing Advances.
Tax Matters Person: The Person or Persons appointed from time
to time to act as the "tax matters person" (within the meaning of the REMIC
Provisions) of the Trust REMIC.
Termination Price: As defined in Section 11.01.
Testing Date: As defined in Section 3.02(fff).
Transfer: Any direct or indirect transfer, sale, pledge,
hypothecation or other form of assignment of any Ownership Interest in a
Certificate.
Transfer Agreement: The agreement, dated as of _____, 199_,
among the Originators and the Depositors, pursuant to which the Originators
transferred the Mortgage Loans to the Depositors.
Transfer Affidavit and Agreement: As defined in Section
4.02(j).
Transferee: Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
Transferor: Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
Trust: EQCC Home Equity Loan Trust 199_-_.
Trust Fund: The segregated pool of assets subject hereto,
constituting the trust created hereby and to be administered hereunder,
consisting of: (i) such Mortgage Loans as from time to time are subject to this
Agreement, together with the Mortgage Files relating thereto and all proceeds
thereof, (ii) such assets as from time to time are identified as REO Property or
are deposited in the Collection Account, Principal and Interest Account, Spread
Account and Insurance Account, including amounts on deposit in the foregoing
accounts and invested in Permitted Instruments, (iii) the Trustee's rights under
all insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to this Agreement and any Insurance Proceeds, (iv) the
Certificate Insurance Policy, (v) Liquidation Proceeds, and (vi) Released
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Mortgaged Property Proceeds. The Representative's Yield and amounts received on
and after the Cut-off Date in respect of interest accrued on the Mortgage Loans
prior to the Cut-off Date do not constitute part of the Trust Fund.
Trustee: [Trustee], not in its individual capacity but solely
as trustee under this Agreement, or its successor in interest, or any successor
trustee appointed pursuant to this Agreement.
Trust REMIC: As defined in Section 2.07(a)(1).
UCC: The Uniform Commercial Code as in effect in the relevant
jurisdiction.
United States Person: (i) A citizen or resident of the United
States, (ii) a corporation, partnership (except to the extent provided in
applicable Treasury regulations) or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, (iii)
an estate the income of which is includible in gross income for United States
federal income tax purposes, regardless of its source or (iv) a trust if a court
within the United States is able to exercise primary supervision over the
administration of such trust and one or more United States Persons have the
authority to control all substantial decisions of such trust (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996 which are eligible to elect to be treated as United States
persons).
Unpaid Class X Remittance Amount: For any Distribution Date,
the aggregate of the Class X Remittance Amounts for such Distribution Date and
all prior Distribution Dates less amounts previously distributed to the Class X
Certificateholders pursuant to Section 6.09. The Unpaid Class X Remittance
Amount will be paid pursuant to Sections 6.09(b)(iii) and (iv) following payment
of all amounts having a higher priority of payment under Section 6.09(b).
Voting Interest: The aggregate Voting Interests of each Class
of Class A Certificates on any date will be equal to a percentage, expressed as
a fraction, the numerator of which is the principal balance of such Class and
the denominator of which is 95% of the sum of the Class A-1F Principal Balance
and the Class A-1A Principal Balance. The aggregate Voting Interests of the
Class X Certificates will be equal to a percentage, expressed as a fraction, the
numerator of which is 5% of the sum of the Class A-1F Principal Balance and the
Class A-1A Principal Balance and the denominator of which is the sum of the
Class A-1F Principal Balance and the Class A-1A Principal Balance. Each
Certificateholder of a Class will have a Voting Interest equal to the product of
the Voting Interest to which such Class is collectively entitled and the
Percentage Interest in such Class represented by such Holder's Certificates.
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ARTICLE II
CONVEYANCE OF THE TRUST ASSETS
Section 2.01 Sale and Conveyance of Trust Assets;
Priority and Subordination of Ownership Interests.
(a) The Depositors do hereby sell, transfer, assign, set
over and convey to the Trustee (for the benefit of the Certificateholders and
the Certificate Insurer, as their interests may appear) without recourse, all of
the right, title and interest of the Depositors in and to (i) the Mortgage Loans
(excepting the Representative's Yield and amounts received on and after the
Cut-off Date in respect of interest accrued on the Mortgage Loans prior to the
Cut-off Date), (ii) the Mortgage Files relating to the Mortgage Loans, (iii) the
related Mortgaged Properties, (iv) the Depositors' rights under all insurance
policies with respect to the Mortgage Loans required to be maintained by it, (v)
all right, title and interest of the Depositors in, to and under the Transfer
Agreement, including the right to cause the Originators to repurchase the
Mortgage Loans under certain circumstances, (vi) all right, title and interest
of the Depositors in each of the Accounts established and maintained pursuant to
Articles V and VI and (vii) the interest of the Depositors in any proceeds of
the property described in clauses (i), (ii), (iii), (iv), (v) and (vi),
including all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including
without limitation, all amounts from time to time held or invested in the
Accounts.
(b) The rights of the Holders and the Certificate Insurer
to receive payments with respect to the Mortgage Loans in respect of the
Certificates, and all ownership interests of the Certificateholders in such
payments, shall be as set forth in this Agreement.
(c) It is the intention of this Agreement that the transfer
of the Depositors' right, title and interest in and to the assets of the Trust
pursuant to this Agreement shall constitute an absolute sale by the Depositors
to the Trustee of the Mortgage Loans for the benefit of the Certificateholders
and the Certificate Insurer and not a loan. If a transfer of Mortgage Loans from
an Originator to a Depositor pursuant to the Transfer Agreement is characterized
as a pledge and not an absolute sale, then such Depositor shall be deemed to
have transferred to the Trustee for the benefit of the Certificateholders and
the Certificate Insurer, as their interests may appear, all of such Depositor's
right, title and interest in, to and under the obligations of such Originator
deemed to be secured by said pledge; and it is the intention of this Agreement
that the Depositors shall also be deemed to have granted and for such purposes
the Depositors hereby grant, to the Trustee for the benefit of the
Certificateholders and the Certificate Insurer, as their interests may
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appear, a first priority security interest in all of the Depositors' right,
title, and interest in, to and under the obligations of the Originators to the
Depositors deemed to be secured by said pledge and that the Trustee shall be
deemed to be an independent custodian for purposes of perfection of the security
interest granted to the Depositors. If the transfer of the Mortgage Loans and
the other assets of the Trust from the Depositors to the Trustee for the benefit
of the Certificateholders is characterized as a pledge, it is the intention of
this Agreement that this Agreement shall constitute a security agreement under
applicable law, and that the Depositors shall be deemed to have granted and for
such purposes the Depositors hereby grant, to the Trustee for the benefit of the
Certificateholders and the Certificate Insurer, as their interests may appear, a
first priority security interest in all of the Depositors' right, title and
interest in, to and under the Mortgage Loans, all payments of principal of or
interest on such Mortgage Loans, all other rights relating to and payments made
in respect of the assets of the Trust, and all proceeds of any thereof,
including all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the
Accounts. If the trust created by this Agreement terminates prior to the
satisfaction of the claims of any Person in any Certificates, 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.
Section 2.02 Possession of Mortgage Files.
(a) Upon the issuance of the Certificates, the ownership of
each Mortgage Note, the Mortgage and the contents of the related Mortgage File
is vested in the Trustee for the benefit of the Certificateholders.
(b) Pursuant to Section 2.04, the Depositors have delivered
or caused to be delivered each Mortgage File to the Custodian.
Section 2.03 Books and Records.
The sale of each Mortgage Loan shall be reflected on the
applicable Depositor's balance sheets and other financial statements prepared in
accordance with generally accepted accounting principles as a sale of assets by
each Depositor. The applicable Depositor shall be responsible for maintaining,
and shall maintain, a complete set of books and records for each Mortgage Loan
which shall be clearly marked to reflect the ownership of each Mortgage Loan by
the Trustee for the benefit of the Certificateholders.
Section 2.04 Delivery of Mortgage Loan Documents.
Contemporaneously with the delivery of this Agreement, the
Depositors delivered or caused to be delivered hereunder to the Trustee the
Certificate Insurance Policy, and each Depositor has delivered to the Trustee
(which may be by delivery to the Custodian on behalf of the Trustee) each of the
following documents for each Mortgage Loan:
(a) (i) (A) The original Mortgage Note, with any
intervening endorsements, endorsed "Pay to the order of [Trustee], as Trustee
under the Pooling and Servicing Agreement dated as of _____, 199_, without
recourse" and signed, by facsimile or manual signature, in the name of the
Originator that transferred such Mortgage Loan to the applicable Depositor
pursuant to the Transfer Agreement by a Responsible Officer, with all prior and
intervening endorsements showing a complete chain of endorsement from the
originator to such Originator, if the Originator from whom the Depositor
acquired such Mortgage Loan was not the originator or (B) if such Mortgage Note
is a Destroyed Mortgage Note, an original Destroyed Mortgage Note Affidavit
together with a copy of such Mortgage Note attached thereto and, (ii) with
respect to manufactured housing units, the certificate of title, if any;
(b) Either: (i) the original Mortgage, with evidence of
recording thereon (and, in the case of a Mortgage Loan secured by a Mortgaged
Property held in an Illinois Land Trust,
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signed by the trustee of such Illinois Land Trust), (ii) a copy of the Mortgage
certified as a true copy by a Responsible Officer of the Originator that
transferred such Mortgage Loan to the applicable Depositor pursuant to the
Transfer Agreement (provided, however, that such Responsible Officer may
complete one or more blanket certificates attaching copies of one or more
Mortgages relating thereto) or by the closing attorney, or by an officer of the
title insurer or agent of the title insurer which issued the related title
insurance policy, or commitment therefor, if the original has been transmitted
for recording until such time as the original is returned by the public
recording office or (iii) a copy of the Mortgage certified by the public
recording office in those instances where the original recorded Mortgage has
been lost or not yet returned;
(c) The original Assignment of Mortgage from the Originator
that transferred such Mortgage Loan to the applicable Depositor pursuant to the
Transfer Agreement to "[Trustee], as Trustee under the Pooling and Servicing
Agreement dated as of _____, 199_, without recourse" or in blank; any such
Assignments of Mortgage may be made by blanket assignments for Mortgage Loans
secured by the Mortgaged Properties located in the same county if permitted by
applicable local law;
(d) Except with respect to any Mortgage Loan secured by a
second priority lien and having a Principal Balance not in excess of $50,000 and
listed in Exhibit V, the original policy of title insurance or a true copy
thereof or, if such policy has not yet been delivered by the insurer, the
commitment or binder to issue same, or original documents of assurance of title;
(e) All intervening assignments, if any, showing a complete
chain of assignment from the originator to the applicable Originator, including
any recorded warehousing assignments, with evidence of recording thereon,
certified by a Responsible Officer of the applicable Originator as a true copy
of the original of such intervening assignments;
(f) A copy of all assumption and modification agreements,
if any, certified as a true copy by a Responsible Officer of the applicable
Originator;
(g) If the Mortgaged Property is held in an Illinois Land
Trust, the original Assignment of Beneficial Interest, or, if the trustee of
such Illinois Land Trust retains such original Assignment of Beneficial
Interest, a certified true copy of such Assignment of Beneficial Interest so
certified by such trustee;
(h) If the Mortgaged Property is held in an Illinois Land
Trust, an original Reassignment of Assignment of Beneficial Interest from the
applicable Originator to "[Trustee], as Trustee under the Pooling and Servicing
Agreement dated as of _____, 199_, Series 199_-_" or in blank. In the event that
the Mortgage Loan was acquired by the applicable Originator in a merger, the
Reassignment of the Assignment of Beneficial Interest must be by "Originator,
successor by merger to [name of predecessor]"; and in the event that the
Mortgage Loan was acquired or originated by the applicable Originator while
doing business under another name, the Reassignment of Assignment of Beneficial
Interest must be by "Originator, formerly known as [previous name]";
(i) If the Mortgaged Property is held in an Illinois Land
Trust, originals of all intervening Reassignments of Assignment of Beneficial
Interest, showing a complete chain of
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assignment from the beneficiaries of such Illinois Land Trust to the applicable
Originator of all of such beneficiaries' right, title, and interest in, to, and
under the trust agreement with respect to such Illinois Land Trust; and
(j) If the Mortgaged Property is held in an Illinois Land
Trust, (A) a certified copy of the instrument creating the Illinois Land Trust,
(B) a copy of the UCC-1 Financing Statement evidencing the assignment of the
Mortgagor's beneficial interest in the Illinois Land Trust, with evidence of
filing thereon, and (C) the original personal guaranty of the Mortgage Note,
executed by each beneficiary of the Illinois Land Trust.
The applicable Depositor shall use its reasonable efforts to
promptly deliver or cause to be delivered to the Trustee or the Custodian: (a)
the original recorded Mortgage in those instances where a copy thereof was
delivered hereunder; (b) the original recorded Assignment of Mortgage to the
applicable Originator, which, together with any intervening assignments of
Mortgage, evidences a complete chain of assignment from the originator to the
applicable Originator in those instances where copies of such Assignments were
delivered; and (c) the title insurance policy or assurance required in paragraph
(d) above. The applicable Depositor shall, within five (5) Business Days after
the receipt thereof, and in any event, within twelve months after the Closing
Date, deliver or cause to be delivered to the Trustee or the Custodian each
document described in any of the preceding clauses (a), (b) and (c); provided,
however, that if a document described in the preceding clause (a) or clause (b)
has not been returned from the appropriate public recording office, the
applicable Depositor shall deliver a certified copy of the Mortgage and a
receipted copy of the Assignment from the appropriate recording office prior to
the expiration of such twelve-month period. Notwithstanding anything to the
contrary contained in this Section 2.04, the applicable Depositor shall be
deemed to have satisfied its obligations to deliver a Mortgage or Assignment of
Mortgage upon delivery to the Trustee or the Custodian a copy of such Mortgage
or Assignment of Mortgage, as applicable, certified by the public recording
office to be a true copy of the recorded original thereof. From time to time the
applicable Depositor may forward or cause to be forwarded to the Trustee or the
Custodian additional original documents evidencing an assumption or modification
of a Mortgage Loan. All Mortgage Loan documents held by the Trustee or the
Custodian as to each Mortgage Loan are referred to herein as the "Mortgage
File".
The Servicer covenants and agrees to take all action necessary
or desirable under applicable state law to transfer the benefits of the lien and
security interest in each manufactured or mobile home and the related Mortgaged
Property to the Trustee, including, without limitation, the filing of UCC-3
assignments, notations on the certificates of title and recordation of the
Assignment of Mortgage within the time periods required by this Section 2.04.
As promptly as practicable following the occurrence of the
Recordation Trigger, but in no event more than 90 days following the occurrence
of the Recordation Trigger, the Servicer shall at its own expense either (i)
record in favor of the Trustee each Assignment of Mortgage and each Reassignment
of Assignment of Beneficial Interest referred to in paragraphs (c) and (h) of
this Section 2.04 with respect to all of the Mortgage Loans in the appropriate
real property or other records, or (ii) deliver to the Trustee an Opinion of
Counsel satisfactory to the Rating Agencies and the Certificate Insurer to the
effect that recording is not required and no
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other action on the part of such Depositor is required (other than such actions
as have been taken) to protect the Trustee's right, title and interest in and to
the related Mortgage and Note.
All recording required pursuant to this Section 2.04 shall be
accomplished by and at the expense of the Servicer. For purposes of determining
whether a signature is made on an instrument or document, stapling of an
attachment shall be a sufficient affixation to cause the attachment to
constitute part of the instrument or document.
Section 2.05 [Reserved].
Section 2.06 Acceptance by Trustee of the Trust Fund;
Certain Substitutions; Certification by Trustee.
(a) The Trustee hereby acknowledges receipt of, for each
Mortgage Loan, the items listed in Section 2.04 (a), (b), (c), (g) and (h) and
declares that it will hold such documents and any amendments, replacements or
supplements thereto, as well as any other assets delivered to it in trust, upon
and subject to the conditions set forth in this Agreement for the benefit of the
Certificateholders and the Certificate Insurer, as their interests may appear.
The Trustee shall execute and deliver on the Closing Date an initial
certification of receipt by it or by the Custodian on its behalf, for each
Mortgage Loan of the items listed in Section 2.04(a), (b), (c), (g) and (h), in
the form attached as Exhibit E hereto, and declares that it will hold such
documents and any amendments, replacements or supplements thereto, as well as
any other assets delivered to it in trust, to the extent set forth herein, for
the benefit of the Certificateholders and the Certificate Insurer, as their
interests may appear. The Trustee agrees to review (or cause to be reviewed)
each Mortgage File within 45 days after the Closing Date (or, with respect to
any Qualified Substitute Mortgage Loan, within 45 days after the receipt thereof
by the Custodian) and to deliver to the Representative, the Depositors, the
Servicer and the Certificate Insurer an interim certification in the form
attached hereto as Exhibit F-1 on or before such date to the effect that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or any Mortgage Loan specifically identified in such
certification as not covered by such certification), (i) all documents required
to be delivered to it pursuant to this Agreement are in its possession (other
than those described in Section 2.04(a)(ii) and 2.04(f)), (ii) such documents
have been reviewed by it and have not been mutilated, damaged, torn or otherwise
physically altered (handwritten additions, changes or corrections shall not
constitute physical alteration if properly initialed by the Mortgagor) and
relate to such Mortgage Loan, and (iii) based on its examination and only as to
the foregoing documents, the information set forth on the Mortgage Loan Schedule
(other than items (i), (iv) and (x) of the definition of Mortgage Loan Schedule)
accurately reflects the information set forth in the Mortgage File. The Trustee
shall be under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face. Within 375 days after the
Closing Date, the Trustee shall deliver (or cause to be delivered) to the
Servicer, the Depositors and the Certificate Insurer a final certification in
the form attached hereto as Exhibit F-2 evidencing the completeness of the
Mortgage Files.
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(b) If the Certificate Insurer or the Trustee during the
process of reviewing the Mortgage Files finds any document constituting a part
of a Mortgage File which is not executed, has not been received, is unrelated to
the Mortgage Loan identified in the Mortgage Loan Schedule, or does not conform
to the requirements of Section 2.04 or substantively to the description thereof
as set forth in the Mortgage Loan Schedule, the Trustee, or the Certificate
Insurer, as applicable, shall promptly so notify the Servicer, the Trustee, the
Representative, the Depositors and the Certificate Insurer. In performing any
such review, such Person may conclusively rely on the related Originator as to
the purported genuineness of any such document and any signature thereon. It is
understood that the scope of such Person's review of the Mortgage Files is
limited solely to confirming that the documents listed in Section 2.04 (other
than those described in Section 2.04(f)) have been executed and received and
relate to the Mortgage Files identified in the Mortgage Loan Schedule. The
Servicer agrees to use reasonable efforts to cause to be remedied a material
defect in a document constituting part of a Mortgage File of which it is so
notified by the Certificate Insurer or the Trustee. If, however, within 60 days
after receipt by it of the final certification referred to in paragraph (a) of
this Section 2.06, the Servicer has not caused to be remedied any defect
described in such final certification and such defect materially and adversely
affects the interest of the Certificateholders in the related Mortgage Loan or
the interests of the Certificate Insurer, the Servicer will on the third
Business Day preceding the Distribution Date immediately succeeding the end of
such 60 day period (i) if within 2 years of the Closing Date, substitute, or
cause the Depositors or the applicable Originator to substitute, in lieu of such
Mortgage Loan a Qualified Substitute Mortgage Loan in the manner and subject to
the conditions set forth in Section 3.03 or (ii) purchase, or cause the
Depositors or the applicable Originators to purchase, such Mortgage Loan at a
purchase price equal to the Principal Balance of such Mortgage Loan as of the
date of purchase, plus all accrued and unpaid interest on such Principal
Balance, computed at the Mortgage Interest Rate, net of the applicable Servicing
Fee if the Representative is the Servicer, plus the amount of any unreimbursed
Servicing Advances made by the Servicer with respect to such Mortgage Loan out
of funds on deposit in the Principal and Interest Account pursuant to Section
5.01(f), which purchase price shall be deposited in the Principal and Interest
Account on the next succeeding Determination Date (after deducting therefrom any
amounts received in respect of such purchased Mortgage Loan or Loans and being
held in the Principal and Interest Account for future distribution); provided
that if such defect caused such Mortgage Loan not to be a "qualified mortgage"
within the meaning of Code Section 860G(a)(3), such repurchase or, if
applicable, substitution shall occur within 90 days of the earlier of the
delivery of the Trustee's interim certification or Servicer's discovery of such
defect.
(c) Upon receipt by the Trustee of a certification of a
Servicing Officer of the Servicer of such substitution or acceptance and the
deposit of the amounts described above in the Principal and Interest Account
(which certification shall be in the form of Exhibit B to the Custodial
Agreement) the Trustee shall release to the Servicer for release to the
Depositors or the Originators, as appropriate, the related Mortgage File and
shall execute, without recourse, and deliver such instruments of transfer
necessary to transfer such Mortgage Loan to the Representative or the respective
Depositor.
(d) If recordation of any Assignment of Mortgage or
Reassignment of Assignment of Beneficial Interest is required hereunder after
the occurrence of a Recordation Trigger, the original of each such recorded
Assignment of Mortgage and Reassignment of
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Assignment of Beneficial Interest shall be delivered to the Trustee or the
Custodian within 10 days following the date on which it is returned to the
related Depositor or the Servicer by the office with which such Assignment of
Mortgage or Reassignment of Assignment of Beneficial Interest was filed for
recordation and, within 10 days following receipt by the Trustee or Custodian,
as applicable, of the recorded Assignment of Mortgage or Reassignment of
Assignment of Beneficial Interest, the Trustee shall review or shall cause the
Custodian to review such Assignment of Mortgage or Reassignment of Assignment of
Beneficial Interest to confirm that such Assignment of Mortgage or Reassignment
of Assignment of Beneficial Interest has been recorded. Upon receipt by the
Trustee or the Custodian, as applicable, of the recorded Assignment of Mortgage
or Reassignment of Assignment of Beneficial Interest, such recorded Assignment
of Mortgage or Reassignment of Assignment of Beneficial Interest shall become
part of the Mortgage File. The Trustee shall notify the related Depositor, the
Servicer and the Certificate Insurer of any defect in such Assignment of
Mortgage or Reassignment of Assignment of Beneficial Interest if it shall have
actual knowledge of any such defect based on such review. The Servicer or the
related Depositor shall have a period of 30 days following such notice to
correct or cure such defect. In the event that the Servicer or the related
Depositor fails to record an Assignment of Mortgage or Reassignment of
Assignment of Beneficial Interest as herein provided (which Assignment of
Mortgage or Reassignment of Assignment of Beneficial Interest was required to be
recorded) and the Trustee shall have actual knowledge of such failure, the
Trustee shall prepare and file or shall cause the Custodian to prepare and file
such Assignment of Mortgage or Reassignment of Assignment of Beneficial Interest
for recordation in the appropriate real property or other records, and the
Servicer and the related Depositor hereby appoints the Trustee and the Custodian
as its attorney-in-fact with full power and authority acting in its stead for
the purpose of such preparation, execution and recordation. Any expense incurred
by the Trustee or the Custodian not otherwise paid for by the related Depositor
or the Servicer as required hereunder in connection with the preparation and
recordation of such Assignment of Mortgage and Reassignment of Assignment of
Beneficial Interest shall be reimbursed to the Trustee or Custodian, as
applicable, pursuant to Section 12.05.
Section 2.07 REMIC Administration.
(a) Tax Administration
(1) An election will be made by the Trustee on
behalf of the Trust Fund to treat the assets of the Trust Fund, excluding the
Spread Account and the rights of the Class A Certificates to receive payments
from the Spread Account in respect of their related LIBOR Interest Carryovers,
as a REMIC under the Code (the "Trust REMIC"). Such election will be made on
Form 1066 or other appropriate federal tax or information return for the taxable
year ending on the last day of the calendar year in which the Certificates are
issued. The Trust will issue the Class A Certificates, which will represent
beneficial interests in, and the Class X Certificates, which will represent the
"regular interests" in, the Trust REMIC, and the Class R Certificates, which
will be the sole class of "residual interests" in the Trust REMIC. The regular
interests in the Trust REMIC represented by the Class A-1F Certificates and the
Class A-1A Certificates shall bear interest at the Class A-1F Pass-Through Rate
and the Class A-1A Pass- Through Rate, respectively. The Owner of the Class R
Certificates, representing at any time the largest Percentage Interest in such
Class shall be the Tax Matters Person with respect to the Trust REMIC. Each
holder of a Class R Certificate, as a condition of ownership thereof,
irrevocably
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appoints the Trustee to act as its agent and attorney-in-fact to perform all
duties of the Tax Matters Person. The "latest possible maturity date" within the
meaning of Treasury Regulation Section 1.860G-1(a)(4) of the Class A
Certificates and the Class X Certificates shall be the Final Scheduled
Distribution Date.
(2) The Closing Date is hereby designated as the
"Startup Day" of the Trust REMIC within the meaning of Section 860G(a)(9) of the
Code.
(3) Except as provided in Section 12.05, the
Trustee shall pay (and shall be entitled to reimbursement thereof by the
Servicer or otherwise in accordance with the terms of this Agreement) the
ordinary and usual expenses in connection with the preparation, filing and
mailing of tax information reports and returns that are incurred by it in the
ordinary course of its administration of its tax-related duties under this
Agreement, but extraordinary or unusual expenses, costs or liabilities incurred
in connection with its tax-related duties under this Agreement, including
without limitation any expenses, costs or liabilities associated with audits,
required independent opinions regarding tax methodology and related matters or
any administrative or judicial proceedings with respect to the Trust REMIC that
involve the Internal Revenue Service or state tax authorities, shall be expenses
of the Trust Fund.
(4) The Trustee shall prepare and file all of the
Trust REMIC's federal and state income or franchise tax and information returns.
Except as provided in Section 12.05, the expenses of preparing and filing such
returns shall be borne by the Trustee. The Servicer and the Depositors shall
provide on a timely basis to the Trustee or its designee such information with
respect to the Trust REMIC as is in their possession, which the Servicer or the
Depositors has or have received or prepared by virtue of its activities as
Servicer or Depositors hereunder and reasonably requested by the Trustee to
enable it to perform its obligations under this subsection, and the Trustee
shall be entitled to rely on such information in the performance of its
obligations hereunder.
(5) The Trustee shall perform on behalf of the
Trust Fund and the Trust REMIC all tax reporting duties and other tax compliance
duties that are the responsibility of the Trust 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, the Trustee
shall provide (i) to the Internal Revenue Service or other Persons (including,
but not limited to, the transferor of any Residual Certificate to a Disqualified
Organization or to an agent that has acquired any Residual Certificate on behalf
of a Disqualified Organization) such information as is necessary for the
application of any tax relating to the transfer of any Residual Certificate to
any Disqualified Organization pursuant to Section 860E(e) of the Code and the
Treasury Regulations thereunder and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC Provisions. Each of
the Depositors and the Servicer shall provide on a timely basis (and in no event
later than 30 days after the Trustee's request) to the Trustee or its designee
such information with respect to the Trust REMIC as is in its possession and
reasonably requested in writing by the Trustee to enable it to perform its
obligations under this subsection.
(6) [Reserved]
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(7) The Trustee and the Servicer shall perform
their obligations under this Agreement and the REMIC Provisions in a manner
consistent with the status of the Trust REMIC as a REMIC or, as appropriate,
shall adopt a plan of complete liquidation.
(8) The Trustee and the Servicer shall not take
any action or cause the Trust REMIC to take any action, within their respective
control and the scope of their specific respective duties under this Agreement
that, under the REMIC Provisions, could (i) endanger the status of the Trust
REMIC as a REMIC or (ii) result in the imposition of a tax upon the Trust 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 as defined in
Code Section 860G(d)) unless the Trustee has received a Nondisqualification
Opinion (at the expense of the party seeking to take such action) with respect
to such action.
(9) To the extent not paid pursuant to paragraph
(d) of this Section 2.07, each Holder of any Residual Certificate shall pay when
due its pro rata share of any and all federal, state and local taxes imposed on
the applicable Trust REMIC or its assets or transactions, including, without
limitation, "prohibited transaction" taxes, as defined in Section 860F of the
Code, any tax on contributions imposed by Section 860G(d) of the Code, and any
tax on "net income from foreclosure property" as defined in Section 860G(c) of
the Code. To the extent that such Trust REMIC taxes are not paid by the
applicable Residual Certificateholders, the Trustee shall pay any remaining
Trust REMIC taxes out of current or future amounts otherwise distributable to
the Holders of any Residual Certificates.
(10) The Trustee shall, for federal income tax
purposes, maintain books and records with respect to the Trust REMIC on a
calendar year and on an accrual basis. Notwithstanding anything to the contrary
contained herein, all amounts collected on the Mortgage Loans shall, for federal
income tax purposes, be allocated first to interest due and payable on the
Mortgage Loans (including interest on overdue interest) (other than additional
interest at a penalty rate payable following a default). The books and records
must be sufficient concerning the nature and amount of the Trust REMIC's
investments to show that the Trust REMIC has complied with the REMIC Provisions.
(11) Neither the Trustee nor the Servicer shall
enter into any arrangement by which the Trust REMIC will receive a fee or other
compensation for services.
(12) In order to enable the Trustee to perform
its duties as set forth herein, the Depositors shall provide, or cause to be
provided, to the Trustee within 10 days after the Closing Date all information
or data that the Trustee reasonably determines to be relevant for tax purposes
on the valuations and offering prices of the Certificates, including, without
limitation, the yield, issue prices, pricing prepayment assumption and projected
cash flows of the Class A Certificates, the Class X Certificates and the
Residual Certificates, as applicable, and the projected cash flows on the
Mortgage Loans. Thereafter, the Depositors shall provide to the Trustee,
promptly upon request therefor, any such additional information or data that the
Trustee may, from time to time, reasonably request in order to enable the
Trustee to perform its duties as set forth herein. The Trustee is hereby
directed to use any and all such information or data provided by the Depositors
in the preparation of all federal and state income or franchise tax and
information returns and reports for the Trust REMIC to Certificateholders as
required herein.
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The Depositors hereby indemnify the Trustee for any losses, liabilities,
damages, claims or expenses of the Trustee arising from any errors or
miscalculations of the Trustee pursuant to this Section that result from any
failure of the Depositors to provide, or to cause to be provided, accurate
information or data to the Trustee (but not resulting from the methodology
employed by the Trustee) on a timely basis and such indemnifications shall
survive the termination of this Agreement.
(13) The Servicer shall prepare and file with the
Internal Revenue Service, on behalf of the Trust REMIC, an application for a
taxpayer identification number for the Trust REMIC on IRS Form SS-4. The
Trustee, upon receipt from the Internal Revenue Service of the Notice of
Taxpayer Identification Number Assigned, shall promptly forward a copy of such
notice to the Depositors. The Trustee shall prepare and file Form 8811 on behalf
of the Trust REMIC and shall designate from time to time an appropriate Person
to respond to inquiries by or on behalf of Certificateholders for original issue
discount and related information in accordance with applicable provisions of the
Code.
The Trustee agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees that it
shall use its best reasonable efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositors, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositors, unless such information is
generally available to the public (other than as a result of a breach of this
Section) or is required by law or applicable regulations to be disclosed.
(b) Modifications of Mortgage Loans. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee nor the Servicer
shall permit any modification of, or take any action with respect to, the
Mortgage Loans (including the Mortgage Interest Rate or, in the case of a
Mortgage Loan in the Adjustable Rate Group, the method of determining the
Mortgage Interest Rate, the Principal Balance, the amortization schedule, any
other term affecting the amount or timing of payments on the Mortgage Loans), or
any other material term of a Mortgage Loan, that would result in an exchange
within the meaning of Treasury Regulations Section 1.860G-2(b) of the Code
unless the Trustee or the Servicer has received a Nondisqualification Opinion or
a ruling from the Internal Revenue Service (at the expense of the party making
the request of the Servicer or the Trustee to modify the Mortgage Loans) to the
same effect as a Nondisqualification Opinion with respect to such modification.
(c) Prohibited Transactions and Activities. The Trustee
shall not permit the sale, disposition (except in a disposition pursuant to (i)
the bankruptcy or insolvency of the Trust REMIC or (ii) the termination of the
Trust REMIC in a "qualified liquidation" as defined in Section 860F(a)(4) of the
Code) or substitution of the Mortgage Loans (except a substitution pursuant to
Sections 2.06(b) or 3.03) or the substitution of a property for a Mortgaged
Property, nor acquire any assets for the Trust REMIC (other than REO Property or
a Qualified Substitute Mortgage Loan pursuant to Sections 2.06(b) or 3.03), nor
accept any contributions to the Trust REMIC (other than a cash contribution
during the 3-month period beginning on the Startup Day), unless it has received
an Opinion of Counsel (at the expense of the Person requesting the
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Trustee to take such action) to the effect that such disposition, acquisition,
substitution, or acceptance will not (a) affect adversely the status of the
Trust REMIC as a REMIC or of the Class A Certificates and the Class X
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 REMIC (except pursuant to the
provisions of this Agreement) or (d) cause the Trust REMIC to be subject to an
unindemnified tax on "prohibited transactions" or "prohibited contributions"
pursuant to the REMIC Provisions.
(d) In the event that any tax is imposed on "prohibited
transactions" of the Trust REMIC as defined in Section 860F(a)(2) of the Code,
on the "net income from foreclosure property" of the Trust REMIC as defined in
Section 860G(c) of the Code, on any contribution to the Trust REMIC after the
Startup Day pursuant to Section 860G(c) of the Code, or any other tax is
imposed, such tax shall be paid by (i) the Trustee, if such tax arises out of or
results from a breach by the Trustee of any of its obligations under this
Agreement, which breach constitutes negligence or willful misconduct of the
Trustee or (ii) the Servicer or the Depositors, if such tax arises out of or
results from a breach by the Servicer or the Depositors of any of their
respective obligations under this Agreement.
(e) Any inconsistencies or ambiguities in this Agreement or
in the administration of the Trust REMIC shall be resolved in a manner that
preserves the validity of the election to be treated as a REMIC.
Section 2.08 Execution of Certificates.
The Trustee acknowledges (i) the assignment to it of Mortgage
Loans in trust for the benefit of the Certificateholders and the Certificate
Insurer, as their interests may appear, and subject to the terms and conditions
of this Agreement and (ii) the delivery of the Mortgage Files as set forth above
and, concurrently with such delivery, in exchange for the Mortgage Loans, the
Mortgage Files and the other assets conveyed by the Depositors pursuant to
Section 2.01 and Section 2.04, the Trustee has executed and caused to be
authenticated and delivered to or upon the order of the Depositors, the
Certificates, each in Authorized Denominations.
Section 2.09 Application of Principal and Interest.
In the event that Net Liquidation Proceeds on a Liquidated
Mortgage Loan are less than the Principal Balance of such Mortgage Loan plus
accrued interest thereon, or any Mortgagor makes a partial payment of any
Monthly Payment due on a Mortgage Loan, such Net Liquidation Proceeds or partial
payment shall be applied to payment of the related Mortgage Note as provided
therein, and if not so provided or if the related Mortgaged Property has become
an REO Property, first to interest accrued at the Mortgage Interest Rate and
then to principal; provided, however, the Net Liquidation Proceeds with respect
to a Bankruptcy Loan shall be applied first, to unpaid accrued interest with
respect to the period after the date of the related Plan, second, to principal
and third, to Pre-Plan Interest.
Section 2.10 Grantor Trust Administration.
(a) The Trustee shall treat the portion of the Trust Fund
exclusive of the Trust REMIC, consisting of the Spread Account, the rights of
the Class A Certificates to receive
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payments in respect of their related LIBOR Interest Carryovers, as a grantor
trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the
Code. The Class A-1F Certificates represent undivided beneficial interests in
the rights to receive payments in respect of Class A-1F LIBOR Interest
Carryovers. The Class A-1A Certificates represent undivided beneficial interests
in the right to receive payments in respect of Class A-1A LIBOR Interest
Carryovers. The Class X Certificates represent undivided beneficial interests in
the Spread Account, subject to the obligation to make payments in respect of
LIBOR Interest Carryovers as provided herein.
(b) The Trustee shall report to the applicable
Certificateholders, at the time or times and in the manner required by the Code,
each such Certificateholder's share of the income or gain and, if applicable,
expense or loss, with respect to its interest in the grantor trust portion of
the Trust Fund on a schedule to IRS Form 1041 (or such other form as may be
applicable) for the portion of the year during which such person was a
Certificateholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations of the Servicer and the
Depositors.
(a) The Servicer hereby represents and warrants to the
Trustee, the Certificate Insurer and the Certificateholders as of the Closing
Date:
(i) The Servicer is duly organized, validly
existing, and in good standing under the laws of the State of Delaware
and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each
Mortgaged Property State if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Servicer and perform its obligations as Servicer hereunder; the
Servicer has the power and authority to execute and deliver this
Agreement and the Basic Documents to which it is a party and to perform
in accordance herewith; the execution, delivery and performance of this
Agreement and the Basic Documents to which it is a party (including all
instruments of transfer to be delivered pursuant to this Agreement and
the Basic Documents to which it is a party) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action; each of this Agreement and
the Basic Documents to which it is a party is the valid, binding and
enforceable obligation of the Servicer; and all requisite action has
been taken by the Servicer to make this Agreement and the Basic
Documents to which it is a party valid, binding and enforceable upon
the Servicer in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium and other, similar
laws relating to or affecting creditors' rights generally or the
application of equitable principles in any proceeding, whether at law
or in equity;
(ii) All actions, approvals, consents, waivers,
exemptions, variances, franchises, orders, permits, authorizations,
rights and licenses required to be taken, given or obtained, as the
case may be, by or from any federal, state or other governmental
authority or agency (other than any such actions, approvals, etc. under
any state securities
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laws, real estate syndication or "Blue Sky" statutes, as to which the
Servicer makes no such representation or warranty), that are necessary
in connection with the performance by the Servicer of its obligations
hereunder or under the Basic Documents to which it is a party or the
purchase and sale of the Certificates and the execution and delivery by
the Servicer of the documents to which it is a party, have been duly
taken, given or obtained, as the case may be, are in full force and
effect, are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and either the time within
which any appeal therefrom may be taken or review thereof may be
obtained has expired or no review thereof may be obtained or appeal
therefrom taken, and are adequate to authorize the consummation of the
transactions contemplated by this Agreement and the Basic Documents and
the other documents on the part of the Servicer and the performance by
the Servicer of its obligations as the Servicer under this Agreement
and such of the other Basic Documents to which it is a party;
(iii) The consummation of the transactions
contemplated by this Agreement and the Basic Documents will not result
in the breach of any terms or provisions of the bylaws of the Servicer
or result in the breach of any term or provision of, or conflict with
or constitute a default under or result in the acceleration of any
obligation under, any material agreement, indenture or loan or credit
agreement or other material instrument to which the Servicer or its
property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its
property is subject;
(iv) None of this Agreement, any of the Basic
Documents to which it is a party or the Prospectus nor any statement,
report or other document prepared by the Servicer and furnished or to
be furnished pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement of
material fact or omits to state a material fact necessary to make the
statements contained herein or therein, in light of the circumstances
under which they were made, not misleading;
(v) There is no action, suit, proceeding or
investigation pending or, to the best of the knowledge of the Servicer,
threatened against the Servicer which, either in any one instance or in
the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Servicer or in any material impairment of the right or ability of the
Servicer to carry on its business substantially as now conducted, or in
any material liability on the part of the Servicer or any Basic
Document to which it is a party or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken
or to be taken in connection with the obligations of the Servicer
contemplated herein, or which would be likely to impair materially the
ability of the Servicer to perform under the terms of this Agreement or
any Basic Document to which it is a party;
(vi) The Servicer is not in default with respect
to any order or decree of any court or any order, regulation or demand
of any federal, state, municipal or governmental agency, which default
might have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Servicer or its
properties or might have consequences that would materially and
adversely affect its
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performance hereunder or under the Basic Documents or under any
Subservicing Agreement;
(vii) The collection practices used by the Servicer
with respect to each Mortgage Note and Mortgage have been in and will
be all material respects legal, proper, prudent and customary in the
second mortgage origination and servicing business; and
(viii) The Servicer is an approved seller/servicer
of first and second mortgage loans for FNMA and FHLMC in good standing.
(b) Each Depositor hereby represents and warrants to the
Trustee, the Certificate Insurer and the Certificateholders as of the Closing
Date:
(i) Such Depositor is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of
its incorporation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in each Mortgaged Property State if the laws of such state
require licensing or qualification in order to conduct business of the
type conducted by such Depositor and perform its obligations as a
Depositor hereunder; such Depositor has the power and authority to
execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement and
the Basic Documents to which it is a party (including all instruments
of transfer to be delivered pursuant to this Agreement and the Basic
Documents to which it is a party) by such Depositor and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action; each of this Agreement and
the Basic Documents to which it is a party is the valid, binding and
enforceable obligation of such Depositor; and all requisite action has
been taken by such Depositor to make this Agreement and the Basic
Documents to which it is a party valid, binding and enforceable upon
such Depositor in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium and other, similar
laws relating to or affecting creditors rights generally or the
application of equitable principles in any proceeding, whether at law
or in equity;
(ii) All actions, approvals, consents, waivers,
exemptions, variances, franchises, orders, permits, authorizations,
rights and licenses required to be taken, given or obtained, as the
case may be, by or from any federal, state or other governmental
authority or agency (other than any such actions, approvals, etc. under
any state securities laws, real estate syndication or "Blue Sky"
statutes, as to which such Depositor makes no such representation or
warranty), that are necessary in connection with the purchase and sale
of the Certificates and the execution and delivery by such Depositor of
the Basic Documents to which it is a party, have been duly taken, given
or obtained, as the case may be, are in full force and effect, are not
subject to any pending proceedings or appeals (administrative, judicial
or otherwise) and either the time within which any appeal therefrom may
be taken or review thereof may be obtained has expired or no review
thereof may be obtained or appeal therefrom taken, and are adequate to
authorize the consummation of the transactions contemplated by this
Agreement and the other Basic Documents on the part of such Depositor
and the performance by such Depositor of its
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obligations as a Depositor under this Agreement, the Transfer Agreement
and such of the other Basic Documents to which it is a party;
(iii) The consummation of the transactions
contemplated by this Agreement and the Basic Documents will not result
in the breach of any terms or provisions of the bylaws of such
Depositor or result in the breach of any term or provision of, or
conflict with or constitute a default under or result in the
acceleration of any obligation under, any material agreement, indenture
or loan or credit agreement or other material instrument to which such
Depositor or its property is subject, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Depositor
or its property is subject;
(iv) None of this Agreement, any of the Basic
Documents to which such Depositor is a party or the Prospectus nor any
statement, report or other document prepared by the Depositor and
furnished or to be furnished pursuant to this Agreement or the Basic
Documents or in connection with the transactions contemplated hereby
contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
misleading;
(v) There is no action, suit, proceeding or
investigation pending or, to the best of such Depositor's knowledge,
threatened against such Depositor which, either in any one instance or
in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of such
Depositor or in any material impairment of the right or ability of such
Depositor to carry on its business substantially as now conducted, or
in any material liability on the part of such Depositor or which would
draw into question the validity of this Agreement or the Basic
Documents or the Mortgage Loans or of any action taken or to be taken
in connection with the obligations of such Depositor contemplated
herein, or which would be likely to impair materially the ability of
the Depositor to perform under the terms of this Agreement or the Basic
Documents to which it is a party;
(vi) Such Depositor is not in default with respect
to any order or decree of any court or any order, regulation or demand
of any federal, state, municipal or governmental agency, which default
might have consequences that would materially and adversely affect the
condition (financial or other) or operations of such Depositor or its
properties or might have consequences that would materially and
adversely affect its performance hereunder, under the Basic Documents
to which it is a party or under any Subservicing Agreement;
(vii) Upon the receipt of each Mortgage File under
this Agreement, the Trustee will have good and indefeasible title on
behalf of the Certificateholders to each Mortgage Loan (other than the
Representative's Yield and amounts received on and after the Cut-off
Date in respect of interest accrued on or prior to the Cut-off Date)
and such other items conveyed by the Depositors to the Trustee
hereunder free and clear of any lien (other than liens which will be
simultaneously released);
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(viii) The transfer, assignment and conveyance of
the Mortgage Notes and the Mortgages by such Depositor pursuant to this
Agreement are not subject to the bulk transfer laws or any similar
statutory provisions in effect in any applicable jurisdiction;
(ix) Such Depositor did not transfer any interest
in any Mortgage Loan with any intent to hinder, delay or defraud any of
its respective creditors;
(x) Such Depositor is solvent and such Depositor
will not be rendered insolvent as a result of the transfer of the
Mortgage Loans to the Trust Fund or the sale of any of the
Certificates;
(xi) Such Depositor will not amend Articles THIRD,
NINTH, TENTH and ELEVENTH of its Certificate of Incorporation without
the prior written consent of the Certificate Insurer and the Rating
Agencies; and
(xii) Such Depositor will not engage in any
activity which would result in a downgrading of the Certificates by any
Rating Agency or in a downgrading of the "shadow rating" (that is, the
rating without taking into account the Certificate Insurance Policy)
below investment grade by any Rating Agency.
Section 3.02 Assignment of Transfer Agreement;
Representations and Warranties as to the Individual Mortgage Loans and the
Mortgage Pool.
Pursuant to Section 2.01, each Depositor assigns to the
Trustee (for the benefit of the Certificateholders and the Certificate Insurer,
as their interests may appear) all of its right, title and interest in, to and
under the Transfer Agreement including, without limitation, the representations
and warranties of the Originators made to the Depositors pursuant to Section
3.01 of the Transfer Agreement. The Depositors hereby represent and warrant to
the Trustee that the Depositors have taken no action which would cause such
representations and warranties of the Originators to be false in any material
respect as of the Closing Date, and acknowledge that the Trustee relies on the
representations and warranties of the Depositors under this Agreement and of the
Originators under the Transfer Agreement in accepting the Mortgage Loans and
executing and delivering the Certificates. The foregoing representation and
warranty speaks as of the Closing Date, but shall survive the transfer and
assignment of the Mortgage Loans to the Trustee for the benefit of the
Certificateholders and the Certificate Insurer, as their interests may appear.
Each Depositor hereby represents and warrants as follows to
the Trustee, the Certificate Insurer and the Certificateholders, with respect to
each Mortgage Loan as of the Closing Date (except as otherwise indicated);
provided, that all references to percentages of the Mortgage Loans in this
Section 3.02 refer in each case to the percentage of the aggregate Principal
Balance of the Mortgage Loans (or of the Mortgage Loans in the Fixed Rate Group
or Adjustable Rate Group, as applicable) as of the Cut-off Date (rounded to two
decimal points):
(a) The information with respect to each Mortgage Loan set
forth in the Mortgage Loan Schedule is true and correct;
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(b) All of the original or certified documentation set
forth in Section 2.04 (including all material documents related thereto) has
been or will be delivered to the Trustee (or the Custodian on behalf of the
Trustee) on the Closing Date or as otherwise provided in Section 2.04;
(c) (i) Each Mortgage Loan is principally secured
by Mortgaged Property. Each Mortgaged Property is improved by a one- to
four-family Residential Dwelling, which, to the best of such Depositor's
knowledge, does not include (A) cooperatives, (B) mobile homes other than
permanently affixed mobile homes which constitute real property under state law,
or (C) except for not more than approximately _____% of the Mortgage Loans in
the Fixed Rate Group, manufactured housing units, as defined in the FNMA Selling
Guide, which constitute other than real property under state law; and
(ii) With respect to each Mortgage Loan involving
property improved by a manufactured or mobile home, the Originator has
taken all action necessary to create a valid and perfected first or
second priority (as reflected in the Mortgage Loan Schedule) lien and
security interest in such manufactured or mobile home and the related
Mortgaged Property, including, without limitation, the filing of UCC
financing statements or notations on certificates of title if
necessary, under applicable state law;
(d) Each Mortgage Loan is being serviced by the Servicer
or one or more Subservicers;
(e) The Mortgage Note related to each Mortgage Loan in
the Fixed Rate Group bears a fixed Mortgage Interest Rate; the Mortgage Note
related to each Mortgage Loan in the Adjustable Rate Group bears a Mortgage
Interest Rate that adjusts semi-annually, based on the London interbank offered
rate for six-month United States dollar deposits;
(f) Mortgage Loans constituting approximately ____% of
the Mortgage Loans in the Fixed Rate Group, and approximately ____% of the
Mortgage Loans in the Adjustable Rate Group, are balloon loans which will
provide for a final Monthly Payment substantially greater than the preceding
Monthly Payments. Approximately ____%, ____,%, ____% and ____% of the Mortgage
Loans in the Fixed Rate Group (and approximately ____,%, ____% and ____% of the
Mortgage Loans in the Adjustable Rate Group) are balloon loans based on a
30-year amortization schedule (except for approximately ____% of the Mortgage
Loans in the Fixed Rate Group) and a single payment of the remaining loan
balances _, _, __ and __ years (or _, __ and __ years, with respect to the
Mortgage Loans in the Adjustable Rate Group) after origination, respectively.
All of such balloon loans provide for Monthly Payments based on an amortization
schedule specified in the related Mortgage Note and have a final balloon payment
no earlier than __ months following origination and no later than ___ months
following origination. Each other Mortgage Note will provide for a schedule of
substantially equal Monthly Payments which are, if timely paid, sufficient to
fully amortize the principal balance of such Mortgage Note on or before its
maturity date;
(g) Each Mortgage relating to a Mortgage Loan in the
Fixed Rate Group is a valid and subsisting first or more junior lien on the
Mortgaged Property subject, in the case of any second Mortgage Loan, only to a
first lien on such Mortgaged Property, and each Mortgage
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relating to a Mortgage Loan in the Adjustable Rate Group is a valid and
subsisting First Lien on the Mortgaged Property, and subject in all cases to the
exceptions to title set forth in the title insurance policy or the other
evidence of title enumerated in Section 2.04(d), with respect to the related
Mortgage Loan, which exceptions are generally acceptable to second mortgage
lending companies, and such other exceptions to which similar properties are
commonly subject and which do not individually, or in the aggregate, materially
and adversely affect the benefits of the security intended to be provided by
such Mortgage. If the Mortgaged Property is held in an Illinois Land Trust (a
"Land Trust Mortgage"), (i) a natural person is the beneficiary of such Illinois
Land Trust, and either is a party to the Mortgage Note or is a guarantor
thereof, in either case, in an individual capacity, and not in the capacity of
trustee or otherwise, and, if a party to the Mortgage Note, is jointly and
severally liable under the Mortgage Note; (ii) the Mortgagor is the trustee of
such Illinois Land Trust, is a party to the Mortgage Note and is the mortgagor
under the Mortgage in its capacity as such trustee and not otherwise; (iii) a
land trust trustee, duly qualified under applicable law to serve as such, has
been properly designated and currently so serves and is named as such in the
land trust agreement and such trustee is named in the Land Trust Mortgage as
Mortgagor; (iv) all fees and expenses of the land trust trustee which have
previously become due or owing have been paid and no such fees or expenses are
or will become payable by the Certificateholders or the Trust Fund; (v) the
beneficiary is solely obligated to pay any fees and expenses of the land trust
trustee and the priority of the lien of the Land Trust Mortgage is not and will
not be subject or subordinate to any amounts owing to the land trust trustee;
(vi) the Mortgaged Property is occupied by the beneficiary under the land trust
agreement (if indicated to be owner occupied on the Mortgage Loan Schedule) and,
if such land trust agreement terminates, the beneficiary will become the owner
of the Mortgaged Property; (vii) the beneficiary is obligated to make payments
under the related Mortgage Note and (subject to applicable law) will have
personal liability for deficiency judgments; (viii) the Land Trust Mortgages and
assignments of beneficial interest relating to land trusts in the Mortgage Pool
were made in compliance with their respective land trust agreements, were
validly entered into by their respective land trust trustee or beneficiary and
did not, do not currently, and will not in the future, violate any provision of
their respective land trust agreement; (ix) a UCC financing statement has been
filed, continued, and will be continued, without intervening liens, as the first
lien upon the beneficial interest in the Land Trust Mortgage; (x) each
assignment of beneficial interest with respect to Land Trust Mortgages in the
Mortgage Pool was at the time of respective assignment the only assignment of
such beneficial interest in the land trust, such assignment was accepted by the
respective land trust trustee, to the best of the Depositors' knowledge,
subsequent assignments of the beneficial interest in whole or in part have not
been made, and such subsequent assignments of the beneficial interest or any
part thereof are not permitted pursuant to a written agreement between the
respective beneficiary and the Mortgagee, until the expiration of the Mortgage
Note in each respective land trust; (xi) the Land Trust Mortgages are the first
or second liens on the Mortgaged Properties; no liens are in place against the
beneficial interests, or any part thereof, of any Land Trust Mortgage or
collateral assignment of beneficial interest, which liens are superior to the
interest held by the related Depositor; and the beneficiary or land trust
trustee is forbidden, pursuant to a written agreement between the beneficiary or
the land trust trustee (as applicable) and the Mortgagee, from using the land
trust property or beneficial interest, or any part of either, as security for
any other debt of the same priority as or senior to such Land Trust Mortgage
until the expiration date of its respective Mortgage Note; and (xii) the terms
and conditions of the land trust agreement do not prevent the free and
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absolute marketability of the Mortgaged Property. As of the Cut-off Date,
approximately ____% of the Mortgage Loans in the Fixed Rate Group and ____ of
the Mortgage Loans in the Adjustable Rate Group were related to Land Trust
Mortgages;
(h) Except with respect to liens released immediately
prior to the transfer herein contemplated, immediately prior to the transfer and
assignment herein contemplated, the applicable Depositor held good and
indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by
such Depositor subject to no liens, charges, mortgages, encumbrances or rights
of others; and immediately upon the transfer and assignment herein contemplated,
the Trustee for the benefit of the Certificateholders will hold good and
indefeasible title, to, and be the sole owner of, each Mortgage Loan (other than
the Representative's Yield and amounts received on or after the Cut-off Date) in
respect of interest accrued prior to the Cut-off Date subject to no liens,
charges, mortgages, encumbrances or rights of others;
(i) Approximately ____% of the Mortgage Loans in the
Fixed Rate Group and approximately ____% of the Mortgage Loans in the Adjustable
Rate Group (excluding Bankruptcy Loans) are 30 or more days contractually
delinquent; none of the Mortgage Loans in the Mortgage Pool are 60 to 89 days
contractually delinquent or more than 89 days contractually delinquent; and none
of the Mortgage Loans in the Mortgage Pool (excluding Bankruptcy Loans) have
been 30 or more days contractually delinquent more than once in the 12 months
preceding the Cut-off Date. For purposes of this representation and warranty "30
or more days contractually delinquent" means that a Monthly Payment due on a Due
Date was unpaid as of the end of the month of the next succeeding Due Date or
following Due Dates. Approximately ____% of the Mortgage Loans in the Fixed Rate
Group, and approximately ____% of the Mortgage Loans in the Adjustable Rate
Group are Bankruptcy Loans. ____ of the Mortgage Loans in the Fixed Rate Group
and ____ of the Mortgage Loans in the Adjustable Rate Group are Bankruptcy Loans
which are 30 days or more contractually delinquent. Except for the Mortgage
Loans listed on Exhibit G, to the best of such Depositor's knowledge, none of
the Mortgage Loans is subject to a Plan;
(j) To the best of such Depositor's knowledge, (i) there
is no delinquent tax or assessment lien on any Mortgaged Property and (ii) each
Mortgaged Property is free of material damage and is in average repair;
(k) No Mortgage Loan is subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Mortgage Note or the Mortgage,
or the exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(l) To the best of such Depositor's knowledge, there is
no mechanics' lien or claim for work, labor or material affecting any Mortgaged
Property which is or may be a lien prior to, or equal with, the lien of such
Mortgage except those which are insured against by the title insurance policy
referred to in Section 3.02(n) below;
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(m) Each Mortgage Loan at the time it was made complied
in all material respects with applicable state and federal laws and regulations,
including, without limitation, usury, equal credit opportunity and disclosure
laws;
(n) With respect to each Mortgage Loan, other than any
Mortgage Loan secured by a second priority lien and having a Principal Balance
not in excess of $_________ and listed on Exhibit V hereto, a written commitment
for a lender's title insurance policy, issued in standard American Land Title
Association or California Land Title Association form, or other form customary
and acceptable in a particular jurisdiction, by a title insurance company
acceptable to FNMA and FHLMC and authorized to transact business in the state in
which the related Mortgaged Property is situated, together with a condominium
endorsement, if applicable, in an amount at least equal to the original
Principal Balance of such Mortgage Loan insuring the mortgagee's interest under
the related Mortgage Loan as the holder of a valid first or second mortgage lien
of record on the real property described in the Mortgage, subject only to
exceptions of the character referred to in Section 3.02(g) above, was effective
on the date of the origination of such Mortgage Loan, and, as of the Closing
Date, such commitment will be valid and thereafter the policy issued pursuant to
such commitment shall continue in full force and effect or, with respect to
Mortgage Properties located in jurisdictions in which it is customary and
acceptable to obtain an assurance of title in lieu of a title insurance policy,
such assurance of title has been obtained;
(o) The improvements upon each Mortgaged Property are
covered by a valid and existing hazard insurance policy with a generally
acceptable carrier that provides for fire and extended coverage representing
coverage described in Sections 5.07 and 5.08;
(p) A flood insurance policy is in effect with respect
to each Mortgaged Property with a generally acceptable carrier in an amount
representing coverage described in Sections 5.07 or 5.08, if and to the extent
required by Section 5.07 or 5.08;
(q) Each Mortgage and Mortgage Note is the legal, valid
and binding obligation of the maker thereof and is enforceable in accordance
with its terms, except only as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law), and all
parties to each Mortgage Loan had full legal capacity to execute all Mortgage
Loan documents and convey the estate therein purported to be conveyed;
(r) The applicable Depositor has directed the Servicer to
perform any and all acts required to be performed to preserve the rights and
remedies of the Trustee in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of co-insured,
joint loss payee and mortgagee rights in favor of the Trustee;
(s) No more than approximately ____% of the Mortgage
Loans in the Fixed Rate Group, and no more than approximately ____% of the
Mortgage Loans in the Adjustable Rate Group, are secured by Mortgaged Properties
located within any single five-digit zip code area within the State of
California. No more than approximately ____% of the Mortgage Loans
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in the Fixed Rate Group, and no more than approximately ____% of the Mortgage
Loans in the Adjustable Rate Group, are secured by Mortgaged Properties located
within any single five-digit zip code area outside the State of California;
(t) At least approximately ____% of the Mortgage Loans
in the Fixed Rate Group, and approximately ____% of the Mortgage Loans in the
Adjustable Rate Group, are secured by Owner Occupied Mortgaged Property;
(u) The terms of the Mortgage Note and the Mortgage have
not been impaired, altered or modified in any material respect, except by a
written instrument which has been recorded or is in the process of being
recorded, if necessary, to protect the interests of the Trustee and which has
been or will be delivered to the Trustee. The substance of any such alteration
or modification is reflected on the Mortgage Loan Schedule. Each original
Mortgage was recorded, and all subsequent assignments of the original Mortgage
(other than the Assignment to the Trustee) have been recorded in the appropriate
jurisdictions wherein such recordation is necessary to perfect the lien thereof
as against creditors of the Depositors (or, subject to Section 2.04 hereof, are
in the process of being recorded);
(v) No instrument of release or waiver has been executed
in connection with the Mortgage Loan, and no Mortgagor has been released, in
whole or in part;
(w) To the best of such Depositor's knowledge, all taxes,
governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. Except for payments in the nature of
escrow payments, including without limitation, taxes and insurance payments, the
Servicer has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required by the Mortgage, except for interest
accruing from the date of the Mortgage Note or date of disbursement of the
Mortgage proceeds, whichever is greater, to the day which precedes by one month
the Due Date of the first installment of principal and interest. With respect to
Mortgaged Properties that are the subject of a ground lease, to the best of such
Depositor's knowledge, all lease rents, other payments or assessments that have
become due have been paid and the Mortgagor is not in material default under any
other provisions of the lease and the lease is valid, in good standing and in
full force and effect;
(x) To the best of such Depositor's knowledge, there is
no proceeding pending or threatened for the total or partial condemnation of the
Mortgaged Property, nor is such a proceeding currently occurring, and such
property is undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty, so as to affect adversely the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which the
premises were intended;
(y) To the best of such Depositor's knowledge, all of the
improvements which were included for the purpose of determining the appraised
value of the Mortgaged Property lie
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wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property;
(z) To the best of such Depositor's knowledge, no
improvement located on or being part of the Mortgaged Property is in violation
of any applicable zoning law or regulation. To the best of such Depositor's
knowledge, all inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities and the Mortgaged Property is lawfully
occupied under applicable law;
(aa) The proceeds of the Mortgage Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee to make
future advances thereunder. Any and all requirements as to completion of any
on-site or off-site improvements and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses incurred in
making or closing or recording the Mortgage Loans were paid;
(bb) The related Mortgage Note is not and has not been
secured by any collateral, pledged account or other security except the lien of
the corresponding Mortgage;
(cc) No Mortgage Loan was originated under a buydown plan;
(dd) There is no obligation on the part of the applicable
Depositor or any other party to make payments in addition to those made by the
Mortgagor;
(ee) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such Mortgage, and
no fees or expenses are or will become payable by the Trustee to the trustee
under such deed of trust, except in connection with a trustee's sale after
default by the Mortgagor. If the Mortgaged Property is held in an Illinois Land
Trust, the trustee thereof is duly qualified under applicable law to serve as
such, and has been properly designated and currently so serves, and no fees or
expenses are or will become payable by the Trustee to such trustee;
(ff) No Mortgage Loan has a shared appreciation feature,
or other contingent interest feature;
(gg) With respect to each Mortgage Loan secured by a
second priority lien, the related First Lien requires equal monthly payments, or
if it bears an adjustable interest rate, the monthly payments for the related
First Lien may be adjusted not more frequently than once every six months;
(hh) With respect to each Mortgage Loan secured by a
second priority lien, either (i) no consent for the Mortgage Loan is required by
the holder of the related First Lien or (ii) such consent has been obtained and
is contained in the Mortgage File;
(ii) The maturity date of each Mortgage Loan secured by a
second priority lien is prior to the maturity date of the related First Lien if
such First Lien provides for a balloon
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payment; and with respect to any First Lien that provides for negative
amortization or deferred interest, the balance of such First Lien used to
calculate the Combined Loan-to-Value Ratio for the Mortgage Loan is based on the
maximum amount of negative amortization possible under such First Lien;
(jj) All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2)(A) organized under the
laws of such state, or (B) qualified to do business in such state, or (C)
federal savings and loan associations or national banks having principal offices
in such state, or (D) not doing business in such state so as to require
qualification or licensing;
(kk) The Mortgage contains a customary provision for the
acceleration of the payment of the unpaid principal balance of the Mortgage Loan
in the event the related security for the Mortgage Loan is sold without the
prior consent of the mortgagee thereunder;
(ll) Any future advances made prior to (and excluding)
the Cut-off Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on the Mortgage
Loan Schedule (or single method of determining the Mortgage Interest Rate if
such Mortgage Loan is in the Adjustable Rate Group). The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan. The
Mortgage Note does not permit or obligate the Servicer to make future advances
to the Mortgagor at the option of the Mortgagor;
(mm) The related Mortgage contains customary and
enforceable provisions which render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage designated as
a deed of trust, by trustee's sale, and (ii) otherwise by judicial or
non-judicial foreclosure. There is no homestead or other exemption available to
the Mortgagor which would materially interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage
except as set forth in the Prospectus;
(nn) Except for bankruptcy-related defaults under the
Bankruptcy Loans, to the best of such Depositor's knowledge, there is no
default, breach, violation or event of acceleration existing under the Mortgage
or the related Mortgage Note and no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration; and neither the Servicer
nor the applicable Depositor has waived any default, breach, violation or event
of acceleration;
(oo) All parties to the Mortgage Note and the Mortgage had
legal capacity to execute the Mortgage Note and the Mortgage and each Mortgage
Note and Mortgage have been duly and properly executed by such parties;
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(pp) All amounts received on and after the Cut-off Date
with respect to the Mortgage Loans that are required to be deposited into the
Principal and Interest Account pursuant to Section 5.03 have been so deposited;
(qq) Each Mortgage Loan in the Fixed Rate Group, and each
Mortgage Loan in the Adjustable Rate Group, was originated and underwritten by,
or purchased and re- underwritten by, the Representative or by a wholly-owned
subsidiary of the Representative;
(rr) As of the Cut-off Date, each Mortgage Loan conforms,
and all Mortgage Loans in the aggregate conform, in all material respects, to
the description thereof set forth in the Prospectus dated __________, 199_,
including all statistical data provided therein in tabular format or otherwise;
(ss) The Mortgage Loans were not selected by the
Originators or the Depositors for transfer to the Trustee (for the benefit of
the Certificateholders) hereunder on any basis intended to adversely affect the
assets of the Trust;
(tt) A full interior inspection appraisal was performed in
connection with each Mortgaged Property;
(uu) The Mortgage Interest Rate for each Mortgage Loan in
the Fixed Rate Group is not less than ____% per annum, and the Mortgage Interest
Rate for each Mortgage Loan in the Fixed Rate Group is not more than ____% per
annum; none of the Mortgage Loans in the Adjustable Rate Group have current
Mortgage Interest Rates less than ____%;
(vv) The gross margin for each Mortgage Loan in the
Adjustable Rate Group is not less than ____% per annum and not more than ____%
per annum. All of Mortgage Loans in the Adjustable Rate Group have periodic
adjustment caps of ____%;
(ww) Each hazard insurance policy required to be
maintained under Section 5.07 of this Agreement with respect to such Mortgage
Loan is a valid, binding, enforceable and subsisting insurance policy of its
respective kind and is in full force and effect;
(xx) If the Mortgaged Property consists of a leasehold
estate, the Mortgage covers property improvements and the Mortgagor's leasehold
interest in the land upon which such improvements are situated; at origination
of the Mortgage Loan the term of the leasehold estate was scheduled to last for
at least ten years beyond the maturity date of the Mortgage or provided for
perpetual renewal covenants; the leasehold estate is assignable by the
Mortgagee; and the lease is valid and in full force and effect;
(yy) To the best of such Depositors' knowledge, no
Mortgaged Property was, at origination, located within a 1 mile radius of any
site with material environmental or hazardous waste risks;
(zz) With respect to each Bankruptcy Loan, (a) except for
the Bankruptcy Loans specified on Exhibit G, as of the Cut-off Date, the
Mortgagor is not contractually delinquent more than 30 days with respect to any
payment due under the related Plan, (b) the Current CLTV is less than or equal
to 85%, and (c) either (i) if the Current CLTV is between
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60% and 85%, as of the Cut-off Date, the Mortgagor has made at least six
consecutive payments under the related Plan or (ii) if the Current CLTV is less
than 60%, as of the Cut-off Date, the Mortgagor has made at least three
consecutive payments under the related Plan;
(aaa) With respect to each Mortgage Loan which was
originated in the State of Alabama (each, an "Alabama Loan"), (i) each such
Alabama Loan was (A) originated and underwritten by EquiCredit Corporation/Ala.&
Miss. ("EQCC/Ala.& Miss.") or (B) purchased and re-underwritten by EQCC/Ala.&
Miss. from another lender (each originating entity, an "Alabama Originator"),
(ii) with respect each such Alabama Loan secured by second mortgages, (A) the
total "prepaid finance charge" (as defined in Regulation Z promulgated under the
Federal Truth-in-Lending Act) paid by the related Mortgagor to the related
Alabama Originator plus (B) any yield spread premium ("rate participation") paid
by the Alabama Originator did not exceed __% of the original Principal Balance
of such Alabama Loan, (iii) the original Principal Balance of such Alabama Loan
exceeded $_______, (iv) the aggregate of all points and broker's fees did not
exceed 10% of the original principal balance of the Mortgage Loan, (v) no
"referral fee" (as defined in Regulation X promulgated under the Real Estate
Settlement and Procedures Act) was paid to any third party by the related
Alabama Originator with respect to such Alabama Loan, (vi) such Alabama Loan and
the manner in which it was originated fully complied with Alabama law, and (vii)
such Alabama Loan was not originated in such a manner, and neither the related
Mortgage Note nor Mortgage contain any provisions, that would cause such Alabama
Loan to be deemed unconscionable under Alabama law; the aggregate of all such
Alabama Mortgage Loans does not exceed approximately ____% of the Mortgage Loans
in the Fixed Rate Group. _____ of the Mortgage Loans in the Adjustable Rate
Group are Alabama Mortgage Loans;
(bbb) Except as specified in Exhibit Y, none of the
Mortgage Loans in the Fixed Rate Group and none of the Mortgage Loans in the
Adjustable Rate Group were originated in connection with the sale of properties
acquired by the Originators through foreclosure;
(ccc) With respect to each Mortgage Loan in the Adjustable
Rate Group, the CLTV does not exceed 100% and with respect to each Mortgage Loan
in the Fixed Rate Group, the CLTV does not exceed 100%;
(ddd) Except for the Mortgage Loans listed on Exhibit T,
as of the Cut-off Date none of the Mortgage Loans are subject to the Home
Ownership and Equity Protection Act of 1994; all notices required to be
delivered to the related Mortgagor pursuant to the Home Ownership and Equity
Protection Act of 1994 have been delivered with respect to each Mortgage Loan
listed on Exhibit T and all other requirements of that Act have been complied
with for each such Mortgage Loan;
(eee) Each Mortgage Loan in the Adjustable Rate Group was
originated by a savings and loan association, savings bank, commercial bank,
credit union, insurance company, or similar institution which is supervised and
examined by a Federal or State authority, or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act;
(fff) Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code. For this purpose, Section
860G(a)(3) of the Code
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shall be applied without regard to the rule contained in Treasury Regulations
Section 1.860G- 2(f)(2) which treats a defective mortgage loan as a "qualified
mortgage" under certain circumstances. Accordingly, the Transferors represent
and warrant that each Mortgage Loan is directly secured by a Mortgage on
residential real property, and either (1) substantially all of the proceeds of
such Mortgage Loan were used to acquire, improve or protect such residential
real property and such interest in residential real property was the sole
security for such Mortgage Loan as of the Testing Date (as defined below), or
(2) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of the Mortgage
Loan (a) as of the Testing Date or (b) as of the Closing Date. For purposes of
the previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the lien of the Mortgage Loan, and
(b) a proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be the date
on which the referenced Mortgage Loan was originated unless (a) such Mortgage
Loan was modified after the date of its origination in a manner that would cause
a "significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.1001 - 3(b), and (b) such "significant
modification" did not occur at a time when such Mortgage Loan was in default or
when default with respect to such Mortgage Loan was reasonably foreseeable.
However, if the referenced Mortgage Loan has been subjected to a "significant
modification" after the date of its origination and at a time when such Mortgage
Loan was not in default or when default with respect to such Mortgage Loan was
not reasonably foreseeable, the "Testing Date" shall be the date upon which the
latest such "significant modification" occurred;
(ggg) The Depositors have no reason to believe that any
Mortgage Loan as of the Cut-off Date that is 30 or more days contractually
delinquent will not be brought current or will become delinquent again after it
is brought current; and
(hhh) The representations and warranties with respect to
the Mortgage Loans and Mortgage Pool set forth in Section 3.02(a) through (ggg),
inclusive, have been made to the Depositors by the Originators and the
Representative pursuant to Section 3.02(a) through (ggg), inclusive, of the
Transfer Agreement with respect to the Mortgage Loans and the Mortgage Pool, and
the Certificate Insurer is entitled to rely thereon.
Section 3.03 Purchase and Substitution.
It is understood and agreed that the representations and
warranties set forth in Sections 3.01 and 3.02 shall survive transfer of the
Mortgage Loans and delivery of the Certificates hereunder. Upon discovery by any
Depositor, the Servicer, any Subservicer, any Custodian, a Responsible Officer
of the Trustee or the Certificate Insurer of a breach of any of such
representations and warranties which materially and adversely affects the value
of Mortgage Loans or the interest of the Trustee, the Certificateholders or the
Certificate Insurer, or which materially and adversely affects the interests of
the Trustee, the Certificate Insurer, or the Certificateholders in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan (notwithstanding that such representation and warranty
was made to the Depositors' best knowledge), the party discovering such breach
shall give prompt written notice to the others. Within 60 days of the earlier of
its discovery or its receipt of
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notice of any breach of a representation or warranty, the Servicer shall (a)
promptly cure, or cause the applicable Depositor or the applicable Originator to
cure, such breach in all material respects, or (b) purchase, or cause the
applicable Depositor or applicable Originator to purchase, such Mortgage Loan by
depositing in the Principal and Interest Account, on the next succeeding
Determination Date, in the manner and at the price specified in Section 2.06(b),
or by causing the applicable Depositor or the applicable Originator to
substitute, one or more Qualified Substitute Mortgage Loans, provided such
substitution is effected not later than the date which is two years after the
Closing Date. Any such substitution shall be accompanied by payment of the
Substitution Adjustment, if any, to be deposited in the Principal and Interest
Account.
As to any Deleted Mortgage Loan for which a Qualified
Substitute Mortgage Loan or Loans is substituted, the Servicer shall effect such
substitution by delivering to the Trustee or the Custodian on behalf of the
Trustee, a certification in the form of Exhibit B attached to the Custodial
Agreement, executed by a Servicing Officer and delivering to the Trustee (or the
Custodian on behalf of the Trustee, with a copy of such certification to the
Trustee) a copy of such certification, the documents constituting the Mortgage
File for such Qualified Substitute Mortgage Loan or Loans and a trust receipt of
the Custodian as to the Substitute Mortgage Loan or Loans.
The Servicer shall deposit in the Principal and Interest
Account all payments received in connection with such Qualified Substitute
Mortgage Loan or Loans after the date of such substitution; provided, however,
that any amounts received after the date of substitution in respect of interest
accrued on or prior to the date of substitution on such Qualified Substitute
Mortgage Loan will constitute the property of the related Depositor or
Originator, as the case may be. Monthly Payments received with respect to
Qualified Substitute Mortgage Loans on or before the date of substitution will
be retained by the Servicer on behalf of the related Depositor or related
Originator, as the case may be. The Trustee will own, for the benefit of the
Certificateholders and the Certificate Insurer, all payments received on the
Deleted Mortgage Loan on or before the date of substitution, and the Servicer on
behalf of the Depositors or Originator, as the case may be, shall thereafter be
entitled to retain all amounts subsequently received in respect of such Deleted
Mortgage Loan. The Servicer shall give written notice to the Trustee, the
Representative and the Certificate Insurer that such substitution has taken
place and shall amend the Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage Loan from the terms of this Agreement and the substitution of
the Qualified Substitute Mortgage Loan. Upon such substitution, such Qualified
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Depositors shall be deemed to have made with
respect to such Qualified Substitute Mortgage Loan or Loans, as of the date of
substitution, the covenants, representations and warranties set forth in
Sections 3.01 and 3.02. On the date of such substitution, the applicable
Depositor or the applicable Originator, as the case may be, will remit to the
Servicer, and the Servicer will deposit into the Principal and Interest Account,
an amount equal to the Substitution Adjustment, if any.
It is understood and agreed that the obligations of the
Servicer set forth in Sections 2.06 and 3.03 to cure, purchase or substitute or
cause to be cured, purchased or substituted for a defective Mortgage Loan as
provided in Sections 2.06 and 3.03 constitute the sole remedies of the Trustee,
the Certificate Insurer and the Certificateholders respecting a breach of the
foregoing representations and warranties.
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Any cause of action against either of the Depositors or the
Servicer relating to or arising out of a defect in a Mortgage File as
contemplated by Section 2.06 or the breach of any representations and warranties
made in Sections 3.01 or 3.02 shall arise as to any Mortgage Loan upon the
occurrence of not less than all of the following events: (i) discovery of such
defect or breach by any party and notice thereof to the Servicer or notice
thereof by the Servicer to the Trustee and the Certificate Insurer, (ii) failure
by the Servicer to cure or cause to be cured such defect or breach or purchase
or substitute or cause to be purchased or substituted such Mortgage Loan as
specified above, and (iii) demand upon the Servicer by the Trustee or the
Certificate Insurer for all amounts payable in respect of such Mortgage Loan.
The party delivering such notice shall also deliver a copy thereof to the
Certificate Insurer.
The Trustee shall give prompt written notice to [Rating
Agency], [Rating Agency], the Certificate Insurer and to each Certificateholder
of any repurchase or substitution made pursuant to this Section 3.03 or Section
2.06(b).
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates.
(a) The Class A-1F, the Class A-1A, the Class X and the
Class R Certificates shall be substantially in the forms annexed hereto as
Exhibits X-0, X-0, X-0 and B-4, respectively. The Class A Certificates shall be
issued in minimum denominations of $_____ and in integral multiples of $__ in
excess thereof. The Class X Certificates shall be issued in minimum
denominations of __% Percentage Interest and in integral multiples of __%
Percentage Interest in excess thereof. The Class R Certificates shall be issued
in a minimum denomination of ___% Percentage Interest. All Certificates shall be
executed by manual or facsimile signature on behalf of the Trustee by at least
one authorized officer and authenticated by the manual signature of an
authorized officer. Certificates bearing the signatures of individuals who were
at the time of the execution of the Certificates the authorized officers of the
Trustee shall bind the Trustee, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the delivery of such Certificates
or did not hold such offices at the date of such Certificates. All Certificates
issued hereunder shall be dated the date of their authentication.
(b) The Class A Certificates, upon original issuance,
shall be issued in the form of a typewritten Certificate or Certificates
representing Book-Entry Certificates, to be delivered to the Depository or,
pursuant to the Depository's instructions on behalf of the Depository to, and
deposited with, the Certificate Custodian. Such Class A Certificate or
Certificates shall initially be registered on the Certificate Register in the
name of Cede & Co., the nominee of the initial Depository, and no Certificate
Owner of a Class A Certificate or Certificates shall receive a definitive Class
A Certificate representing such Certificate Owner's interest in such Class A
Certificate, except as provided in Section 4.01(c). Unless and until definitive
fully registered Class A Certificates (the "Definitive Certificates") shall have
been issued to Certificate Owners pursuant to Section 4.01(c):
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(i) the provisions of this Section 4.01(b) shall
be in full force and effect;
(ii) the Certificate Registrar and the Trustee
shall be entitled to deal with the Depository for all purposes of this
Agreement (including the payment of principal of and interest on the
Certificates and the giving of instructions or directions hereunder) as
the sole Holder of the Class A Certificates, and shall have no
obligation to the Certificate Owners with respect thereto;
(iii) to the extent that the provisions of this
Section 4.01(b) conflict with any other provisions of this Agreement,
the provisions of this Section 4.01(b) shall control;
(iv) the rights of the Certificate Owners with
respect to the Class A Certificates shall be exercised only through the
Depository and shall be limited to those established by law and
agreements between such Certificate Owners and the Depository and/or
the Depository Participants. Unless and until Definitive Certificates
are issued pursuant to Section 4.01(c), the initial Depository will
make book-entry transfers among the Depository Participants and receive
and transmit payments of principal of and interest on the Class A
Certificates to such Depository Participants;
(v) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions of Holders of
Certificates evidencing a specified aggregate Percentage Interest, the
Depository shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from
Certificate Owners and/or Depository Participants owning or
representing, respectively, such required aggregate Percentage Interest
of Class A Certificates (taking into account the proviso contained in
the definition of "Certificateholder" contained herein) and has
delivered such instructions to the Trustee; and
(vi) whenever a notice or other communication to
the Class A Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate
Owners pursuant to Section 4.01(c), the Trustee shall give all such
notices and communications specified herein to be given to Class A
Certificateholders to the Depository and shall have no further
obligation to the Certificate Owners of the Class A Certificates.
provided, however, that the provisions of this Section 4.01(b) shall not be
applicable in respect of Class A Certificates issued to the Depositors. The
Depositors or the Trustee may set a record date for the purpose of determining
the identity of Holders of Class A Certificates entitled to vote or to consent
to any action by vote as provided in this Agreement;
(c) The Class X and Class R Certificates shall be issued
in the form of Definitive Certificates. With respect to the Class A
Certificates, if (i) the Servicer advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Class A Certificates, and the Servicer is
unable to locate a qualified successor; (ii) the Servicer at its option advises
the Trustee in writing that it elects to
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terminate the book-entry system through the Depository; or (iii) after the
occurrence of a Servicer Default, a Majority in Aggregate Voting Interest advise
the Depository in writing that the continuation of a book-entry system through
the Depository is no longer in the best interests of the Certificate Owners of
the Class A Certificates, then the Depository shall notify all Certificate
Owners and the Trustee 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 typewritten Certificate or
Certificates representing the Book-Entry Certificates by the Depository,
accompanied by registration instructions, the Trustee shall execute and
authenticate the Definitive Certificates in accordance with the instructions of
the Depository. Neither the Certificate Registrar nor the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Certificates, the Trustee shall recognize the Holders of the
Definitive Certificates as Certificateholders.
Section 4.02 Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at its office or
agency in Chicago, Illinois, or at its designated agent, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, it shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Certificate Register shall contain the
name, remittance instructions, Class and Percentage Interest of each
Certificateholder, as well as the Series and the number in the Series.
(b) Except as provided in Section 4.02(c), no transfer,
sale, pledge or other disposition of a Class X or Class R Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "Act"),
and any applicable state securities laws or is made in accordance with said Act
and laws. In the event that a transfer of a Class X or Class R Certificate is to
be made under this Section 4.02(b), the Depositors may direct the Trustee to
require an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Trustee and the Depositors that such transfer shall be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and laws,
which Opinion of Counsel shall not be an expense of the Trustee, the Depositors
or the Servicer and (ii) the Trustee shall require the transferee to execute a
representation letter, substantially in the form of Exhibit M-2 hereto, and the
Trustee shall require the transferor to execute a representation letter,
substantially in the form of Exhibit M-3 hereto, each acceptable to and in form
and substance satisfactory to the Depositors and the Trustee certifying to the
Depositors and the Trustee the facts surrounding such transfer, which
representation letters shall not be an expense of the Trustee, the Depositors or
the Servicer, provided that such representation letter will not be required in
connection with any transfer of any such Certificate by the Depositors to an
affiliate of the Depositors. Any such Certificateholder desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositors,
the Certificate Insurer and the Servicer against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
applicable federal and state laws.
(c) Transfers of Class X and Class R Certificates may be
made in accordance with this Section 4.02(c) if the prospective transferee of a
Certificate provides the Trustee and
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the Depositors with an investment letter substantially in the form of Exhibit
M-4 attached hereto, which investment letter shall not be an expense of the
Trustee, the Depositors or the Servicer, and which investment letter states
that, among other things, such transferee is a "qualified institutional buyer"
as defined under Rule 144A. Such transfers shall be deemed to have complied with
the requirements of Section 4.02(b) hereof; provided, however, that no Transfer
of any of the Certificates may be made pursuant to this Section 4.02(c) by the
Depositors. Any such Certificateholder desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trustee, the Depositors and the Servicer
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such applicable federal and state laws.
(d) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to execute all instruments of transfer and to do all
other things necessary in connection with any such sale, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(1) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(2) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of any such Residual Certificate
until its receipt of, an affidavit and agreement (a "Transfer Affidavit and
Agreement") attached hereto as Exhibit M-1 from the proposed Transferee, in form
and substance satisfactory to the Trustee, representing and warranting, among
other things, that such Transferee is a Permitted Transferee, that it is not
acquiring its Ownership Interest in such Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in such Residual Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this Section 4.02(d) and
agrees to be bound by them.
(3) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause (2) above, if the
Trustee has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Residual Certificate to
such proposed Transferee shall be effected.
(4) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (x) to require a Transfer
Affidavit and Agreement from any other Person to whom such Person attempts to
transfer its Ownership Interest in such Residual Certificate and (y) not to
transfer its Ownership Interest unless it provides a certificate (attached
hereto as Exhibit J) to the Trustee stating that, among other things, it has no
actual knowledge that such other Person is not a Permitted Transferee.
(5) The Trustee will register the Transfer of any
Residual Certificate only if it shall have received the Transfer Affidavit and
Agreement and all of such other documents as shall have been reasonably required
by the Trustee as a condition to such registration. In
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addition, no Transfer of a Residual Certificate shall be made unless the Trustee
shall have received a representation letter from the Transferee of such
Certificate to the effect that such Transferee is not a Disqualified Non-United
States Person and is not a Disqualified Organization or an agent of either.
Transfers of the Residual Certificates to Disqualified Non-United States Persons
and Disqualified Organizations or their agents are prohibited.
(6) Any attempted or purported transfer of any
Ownership Interest in a Residual Certificate in violation of the provisions of
this Section 4.02 shall be absolutely null and void and shall vest no rights in
the purported transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section 4.02, then
the last preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of transfer of such
Residual Certificate. The Trustee shall notify the Depositors upon receipt of
written notice or discovery by a Responsible Officer that the registration of
transfer of a Residual Certificate was not in fact permitted by this Section
4.02. Knowledge shall not be imputed to the Trustee with respect to an
impermissible transfer in the absence of such a written notice or discovery by a
Responsible Officer. The Trustee shall be under no liability to any Person for
any registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 4.02 or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered after receipt of the related Transfer Affidavit and Transfer
Certificate. The Trustee shall be entitled, but not obligated to recover from
any Holder of a Residual Certificate that was in fact not a Permitted Transferee
at the time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual Certificate at
and after either such time. Any such payments so recovered by the Trustee shall
be paid and delivered by the Trustee to the last preceding Holder of such
Certificate.
(e) The Trustee shall make available to the Internal
Revenue Service and those Persons specified by the REMIC Provisions, all
information necessary to compute any tax imposed as a result of the transfer of
an ownership interest in a Residual Certificate to any Person who is a
Disqualified Organization or an agent thereof, including the information
regarding "excess inclusions" of such Residual Certificates required to be
provided to the Internal Revenue Service and certain Persons as described in
Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5). The Trustee may
charge and shall be entitled to reasonable compensation for providing such
information as may be required from those Persons which may have had a tax
imposed upon them as specified in this paragraph for providing such information.
(f) No transfer of a Class X or Class R Certificate or
any interest therein shall be made to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each,
an "ERISA Plan"), unless the prospective transferee of such Certificate provides
the Servicer and the Trustee with a certification of facts and, at the
prospective transferee's expense, an Opinion of Counsel which establish to the
satisfaction of the Servicer and the Trustee that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the
Servicer or the Trustee to be deemed a fiduciary of such ERISA Plan or result in
the imposition
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of an excise tax under Section 4975 of the Code. In the absence of their having
received the certification of facts or Opinion of Counsel contemplated by the
preceding sentence, the Trustee and the Servicer shall require the prospective
transferee of any Class X or Class R Certificate to certify in the form of
Exhibit M-2 or Exhibit M-4 that (A) it is neither (i) an ERISA Plan nor (ii) a
Person who is directly or indirectly purchasing such Certificate on behalf of,
as named fiduciary of, as trustee of, or with assets, of an ERISA Plan or (B) in
the case of the Class X Certificates, if the prospective transferee is an
insurance company, all funds used by such transferee to purchase such
Certificates will be funds held by it in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95- 60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995) and there is
no ERISA Plan with respect to which the amount of such general account's
reserves and liabilities for the contract(s) held by or on behalf of such ERISA
Plan and all other ERISA Plans maintained by the same employer (or affiliate
thereof as defined in Section V(a)(1) of PTE 95-60) or by the same employee
organization exceeds 10% of the total of all reserves and liabilities of such
general account (as such amounts are determined under Section I(a) of PTE 95-60)
at the date of acquisition.
(g) Subject to the restrictions set forth in this
Agreement, upon surrender for registration of transfer of any Certificate at the
office or agency of the Trustee located in [New York, New York or Chicago
Illinois], the Trustee shall execute, authenticate and deliver in the name of
the designated transferee or transferees, a new Certificate of the same Class
and Percentage Interest and dated the date of authentication by the Trustee. The
Trustee shall notify the Servicer of any such transfer. At the option of the
Certificateholders, Certificates may be exchanged for other Certificates of
Authorized Denominations of a like aggregate Percentage Interest, upon surrender
of the Certificates to be exchanged at such office. Whenever any Certificates
are so surrendered for exchange, the Trustee shall execute, authenticate and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. No service charge shall be made for any transfer or
exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates. All Certificates
surrendered for transfer and exchange shall be canceled by the Trustee.
Section 4.03 Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Trustee, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Servicer and the Trustee such security or indemnity, which may include a
letter of indemnity delivered by an insurance company reasonably acceptable to
the Trustee and the Servicer, as may be required by each of them to save each of
them harmless, then, in the absence of notice to the Servicer and the Trustee
that such Certificate has been acquired by a bona fide purchaser, the Trustee
shall execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Percentage Interest, but bearing a number not contemporaneously
outstanding. Upon the issuance of any new Certificate under this Section 4.03,
the Servicer and the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith. Any duplicate Certificate
issued pursuant to this Section 4.03 shall constitute complete and indefeasible
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evidence of ownership in the Trust, as if originally issued, whether or not the
mutilated, destroyed, lost or stolen Certificate shall be found at any time.
Section 4.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Servicer, the Depositors and the Trustee may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving remittances pursuant to Section 6.05 and for all other
purposes whatsoever, and the Servicer, the Depositors and the Trustee shall not
be affected by notice to the contrary.
Section 4.05 Determination of LIBOR.
(a) On each LIBOR Determination Date, the Trustee shall
determine LIBOR on the basis of the British Bankers' Association "Interest
Settlement Rate" for one-month deposits in U.S. dollars as found on Telerate
page 3750 as of 11:00 A.M. London time on such LIBOR Determination Date. As used
herein, "Telerate page 3750" means the display designated as page 3750 on the
Dow Xxxxx Telerate Service. If such rate does not appear on Telerate Page 3750,
the rate for that date will be determined on the basis of the rates at which
one-month United States dollars are offered by the Reference Banks at
approximately 11:00 a.m., London time, on that day to prime banks in the London
interbank market. The Trustee will request the principal London office of each
of the Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, the rate
for that date will be the arithmetic mean of the rates quoted by major banks in
New York City, selected by the Servicer, at approximately 11:00 a.m., New York
City time, on that day for one-month loans in United States dollars to leading
European banks.
(b) The Class A-1F Pass-Through Rate and the Class A-1A
Pass-Through Rate applicable to the then current and the immediately preceding
Accrual Period may be obtained by any Class A-1F Certificateholder or Class A-1A
Certificateholder, respectively, by telephoning the Trustee at its Corporate
Trust Office at 1-800-934-6802.
(c) On each LIBOR Determination Date, the Trustee shall
send to the Servicer by facsimile notification of LIBOR for the following
Accrual Period.
ARTICLE V
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 5.01 Duties of the Servicer.
(a) It is intended that the Trust REMIC formed hereunder
shall constitute, and that the affairs of the Trust REMIC shall be conducted so
as to qualify it as a REMIC as defined in and in accordance with the REMIC
Provisions. In furtherance of such intention, the Servicer covenants and agrees
that it shall not knowingly or intentionally take any action or omit to take any
action that would cause the termination of the REMIC status of the Trust REMIC.
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(b) The Servicer, as independent contract servicer, shall
service and administer the Mortgage Loans and shall have full power and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable
and consistent with the terms of this Agreement. The Servicer may enter into
Subservicing Agreements for any servicing and administration of Mortgage Loans
with any entity which is in compliance with the laws of each state necessary to
enable it to perform its obligations under such Subservicing Agreement and (x)
has been designated an approved Seller- Servicer by FHLMC or FNMA for first and
second mortgage loans, or (y) is an affiliate or wholly owned subsidiary of the
Servicer. The Servicer shall give notice to the Depositors, the Trustee and the
Certificate Insurer of the appointment of any Subservicer other than a
Subservicer which is an affiliate or wholly-owned subsidiary of the Servicer.
Any such Subservicing Agreement shall be consistent with and not violate the
provisions of this Agreement. The Servicer shall be entitled to terminate any
Subservicing Agreement in accordance with the terms and conditions of such
Subservicing Agreement and either itself directly service the related Mortgage
Loans or enter into a Subservicing Agreement with a successor subservicer which
qualifies hereunder.
(c) Notwithstanding any Subservicing Agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Servicer and Subservicer or reference to actions taken through a Subservicer
or otherwise, the Servicer shall remain obligated and primarily liable to the
Depositors, the Trustee, the Certificate Insurer and the Certificateholders for
the servicing and administering of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. For purposes of this Agreement, the Servicer shall be deemed
to have received payments on Mortgage Loans when the Subservicer has received
such payments. The Servicer shall be entitled to enter into any agreement with a
Subservicer for indemnification of the Servicer by such Subservicer, and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification or limit or modify indemnification provided by the Servicer
herein.
(d) Any Subservicing Agreement that may be entered into
and any transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such and not as an Originator shall be deemed to
be between the Subservicer and the Servicer alone, and the Depositors, the
Trustee, the Certificate Insurer and Certificateholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section
5.01(e).
(e) In the event the Servicer shall for any reason no
longer be the Servicer (including by reason of a Servicer Default), the Trustee
or its designee shall, subject to Section 10.02 hereof, thereupon assume all of
the rights and obligations of the Servicer under each Subservicing Agreement
that the Servicer may have entered into, unless the Trustee elects to terminate
any Subservicing Agreement. If the Trustee does not terminate a Subservicing
Agreement, the Trustee, its designee or the successor servicer for the Trustee
shall be deemed to have assumed all of the Servicer's interest therein and to
have replaced the Servicer as a party to each Subservicing Agreement to the same
extent as if the Subservicing Agreements had been
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assigned to the assuming party, except that the Servicer shall not thereby be
relieved of any liability or obligations under the Subservicing Agreements. The
Servicer at its expense and without right of reimbursement therefor, shall, upon
request of the Trustee, deliver to the assuming party all documents and records
relating to each Subservicing Agreement and the Mortgage Loans then being
serviced and an accounting of amounts collected and held by it and otherwise use
its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
(f) Consistent with the terms of this Agreement, the Servicer
may waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if in the Servicer's determination such waiver,
modification, postponement or indulgence is not materially adverse to the
interests of the Depositors, the Certificateholders and the Certificate Insurer;
provided, however, that (unless (x) the Mortgagor is in default with respect to
the Mortgage Loan, or such default is, in the judgment of the Servicer,
reasonably foreseeable and (y) with respect to any modification lowering the
Mortgage Interest Rate (or, with respect to any Mortgage Loan in the Adjustable
Rate Group, a modification to the method of determination which may result a
lower Mortgage Interest Rate) or effecting the forgiveness of any amount owed
under the Mortgage Note, or extending the final maturity date on such Mortgage
Loan, the Certificate Insurer has consented to such modification and notice of
such modification has been delivered to the Rating Agencies) the Servicer may
not permit any modification with respect to any Mortgage Loan that would change
the Mortgage Interest Rate, defer (except as permitted by Section 5.11) or
forgive the payment of any principal or interest (unless in connection with the
liquidation of the related Mortgage Loan), extend the final maturity date or
modify any other material term of the Mortgage Loan, unless such waiver,
modification, postponement or indulgence would not be considered to constitute
the acquisition by the Trust REMIC of a new mortgage loan under Treasury
Regulations Section 1.860G-2(b). No costs incurred by the Servicer or any
Subservicer in respect of Servicing Advances shall, for the purposes of
distributions to Certificateholders, be added to the Principal Balance of the
related Mortgage Loan for purposes of this Agreement. Without limiting the
generality of the foregoing, and subject to the consent of the Certificate
Insurer, the Servicer shall continue, and is hereby authorized and empowered to
execute and deliver on behalf of the Trustee, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. If reasonably required by the Servicer (as evidenced by an
Officer's Certificate of the Servicer to such effect delivered to the Trustee),
the Trustee shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
Notwithstanding anything to the contrary contained herein, the
Servicer, in servicing and administering the Mortgage Loans, shall employ or
cause to be employed procedures (including collection, foreclosure and REO
Property management procedures) and exercise the same care that it customarily
employs and exercises in servicing and administering mortgage loans for its own
account, in accordance with accepted second mortgage servicing practices of
prudent lending institutions and giving due consideration to the Depositor's,
the Certificate Insurer's and Certificateholders' reliance on the Servicer.
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Notwithstanding anything to the contrary contained herein, the
Servicer may reimburse itself for Servicing Advances pursuant to Section 5.04
and may pay all or a portion of any Servicing Advance out of excess amounts on
deposit in the Principal and Interest Account and held for future distribution
on the date such Servicing Advance is made; any excess amounts so used shall be
replaced by the Servicer by deposit to the Principal and Interest Account on or
before the next succeeding Determination Date.
(g) On and after such time as the Trustee receives the
resignation of, or notice of the removal of, the Servicer from its rights and
obligations under this Agreement, and with respect to any resignation pursuant
to Section 9.04, after receipt of the Opinion of Counsel required pursuant to
Section 9.04, the Trustee or its designee shall assume all of the rights and
obligations of the Servicer, subject to Section 9.02 hereof. The Servicer shall,
upon request of the Trustee but at the expense of the Servicer, deliver to the
Trustee all documents and records relating to the Mortgage Loans and an
accounting of amounts collected and held by the Servicer and otherwise use its
best efforts to effect the orderly and efficient transfer of servicing rights
and obligations to the assuming party.
(h) The Servicer shall take all actions required to be
taken under sections 6050H, 6050J and 6050P of Code in respect of the Mortgage
Loans, the Mortgaged Property and the REO Property.
Section 5.02 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and
not postponed pursuant to Section 5.01 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Servicer shall take such action as it shall deem in
its good faith business judgment to be in the best interest of the Depositors,
the Certificate Insurer and the Certificateholders and otherwise in accordance
with the accepted second mortgage servicing practices of prudent lending
institutions. The Servicer in accordance with the provisions of Section 5.10
shall foreclose upon or otherwise comparably effect the ownership in the name of
the Trustee for the benefit of the Certificateholders of Mortgaged Properties
relating to defaulted Mortgage Loans as to which no satisfactory arrangements
can be made for collection of delinquent payments; provided, however, that the
Servicer shall not be obligated to foreclose in the event that the Servicer, in
its good faith reasonable business judgment, determines that it would not be in
the best interests of the Depositors, the Certificateholders or the Certificate
Insurer, which judgment shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Certificate Insurer. In connection with such foreclosure
or other conversion, the Servicer shall exercise and use collection and
foreclosure procedures with the same degree of care and skill as it would
exercise or use under the circumstances in the conduct of its own affairs. Any
amounts advanced in connection with such foreclosure or other action shall
constitute "Servicing Advances."
After a Mortgage Loan has become a Liquidated Mortgage Loan,
the Servicer shall promptly prepare and forward to the Depositors, the Trustee
and the Certificate Insurer a Liquidation Report, in the form attached hereto as
Exhibit O, detailing the Liquidation Proceeds
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received from the Liquidated Mortgage Loan, expenses incurred with respect
thereto, and any loss incurred in connection therewith.
Section 5.03 Establishment of Principal and Interest
Account; Deposits in Principal and Interest Account.
(a) The Servicer, for the benefit of the
Certificateholders and the Certificate Insurer, as their interests may appear,
shall (x) cause to be established and maintained one or more Principal and
Interest Accounts in the name of the Trustee, which shall be Eligible Accounts,
which may be interest-bearing, titled "EQCC Home Equity Loan Trust 199_-_
Principal and Interest Account", bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders or (y) so long as EquiCredit is acting as Servicer and the
conditions set forth in clauses (b)(i), (ii) and (iii) below are met, cause to
be maintained an account for deposit of the amounts set forth below, which
account is not required to be an Eligible Account or invested in Permitted
Investments and may be a commingled account containing other Servicer funds, but
which account shall otherwise be a "Principal and Interest Account" for all
purposes of this Agreement to the extent of funds therein deposited pursuant to
the terms of this Agreement. In the event clause (y) is applicable, (i) the
Servicer shall maintain separate books and records with respect to allotments
relating to this Agreement that are deposited in such Principal and Interest
Account and shall separately account for all amounts relating to this Agreement
that are deposited or withdrawn from such account and (ii) amounts deposited in
such Principal and Interest Account may be used for any purposes, provided, that
the Servicer shall cause all payments required to be made under this Agreement
from the Principal and Interest Account to be paid. The Principal and Interest
Accounts referred to in clause (x) above shall be insured by the Bank Insurance
Fund or the Savings Association Insurance Fund of the FDIC, as the case may be,
to the maximum extent provided by law. The creation of any Principal and
Interest Account referred to in clause (x) shall be evidenced by a letter
agreement in the form of Exhibit P hereto. A copy of such letter agreement shall
be furnished by the Servicer to the Depositors, the Trustee and the Certificate
Insurer. The Servicer shall use reasonable efforts to deposit (without
duplication) within one Business Day, and shall in any event deposit within two
Business Days of receipt thereof, in the Principal and Interest Account and
retain therein:
(i) all payments received on or after the
Cut-off Date on account of principal on the Mortgage Loans and all
Principal Prepayments and Curtailments collected on or after the
Cut-off Date;
(ii) (a) all payments received on or after the
Cut-off Date on account of interest accrued on the Mortgage Loans on or
after the Cut-off Date and (b) Pre-Plan Interest Payments;
(iii) all Net Liquidation Proceeds;
(iv) all Insurance Proceeds;
(v) all Released Mortgaged Property Proceeds;
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(vi) any amounts payable in connection with the
purchase of any Mortgage Loan and the amount of any Substitution
Adjustment pursuant to Sections 2.06 and 3.03;
(vii) any amount required to be deposited in the
Principal and Interest Account pursuant to Section 5.04, 5.07, 5.08 or
5.10; and
(viii) all payments made by the Servicer pursuant
to the final paragraph of Section 5.01(f) to replace any amount
withdrawn from the Principal and Interest Account to make Servicing
Advances.
In making the deposits set forth in clauses (i) through (viii)
(inclusive) above, the Servicer shall note in its records the respective amounts
deposited with respect to the Fixed Rate Group and the Adjustable Rate Group.
The foregoing requirements for deposit in the Principal and Interest Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, with respect to each Mortgage Loan, the
Representative's Yield, amounts received on and after the Cut-off Date in
respect of interest accrued on the Mortgage Loans prior to the Cut-off Date
(other than amounts referred to in Section 5.03(ii)(b)), the Servicing Fee, late
payment charges and assumption fees, to the extent permitted by Sections 7.01
and 7.03, Excess Proceeds, and any amounts received after the date of
substitution of a Qualified Substitute Mortgage Loan pursuant to Section 2.06 or
3.03 in respect of interest accrued on such Qualified Substitute Mortgage Loan
on or prior to the date of substitution (except to the extent taken into account
in calculating the Substitution Adjustment with respect thereto), need not be
deposited by the Servicer in the Principal and Interest Account. Except as
permitted in Section 5.03(a) amounts on deposit in the Principal and Interest
Account shall be held uninvested or shall be invested by the Servicer in
Permitted Instruments. Any investment earnings on funds held in the Principal
and Interest Account shall be for the account of the Servicer. Any reference
herein to amounts on deposit in the Principal and Interest Account shall refer
to amounts net of such investment earnings.
(b) Notwithstanding clause (x) of Section 5.03(a), for
so long as EquiCredit is acting as the Servicer, the Servicer shall be permitted
to make deposits into an account of the type described in clause (y) of Section
5.03(a) if the specific terms and conditions set forth below are satisfied and
only for so long as such terms and conditions are satisfied:
(i) there exists no Servicer Default;
(ii) if EquiCredit does not have a short term
debt rating of at least "___" from [Rating Agency] and "___"
from [Rating Agency], a guaranty, letter of credit, surety
bond or other similar instrument is issued covering remittance
to the Collection Account of Collections received during any
Due Period, which instrument is acceptable to the Rating
Agencies and the Certificate Insurer and is issued by an
entity which has a short-term debt or certificate of deposit
rating, as applicable, of at least "___" from [Rating Agency]
and "___" from [Rating Agency]; and
(iii) EquiCredit, the Trustee, the Depositors and
the Certificate Insurer shall not have received any notice
from [Rating Agency] or [Rating Agency] that such
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arrangement will result in a reduction or withdrawal of the
then current rating on the Certificates without regard to the
Insurance Policy by either [Rating Agency] or [Rating Agency].
(c) In the event that, at any time the conditions set
forth in Section 5.03(b) are not satisfied, the Servicer shall forthwith cause
to be established a Principal and Interest Account meeting the requirements of
clause (x) of Section 5.03(a), and the Servicer shall deposit therein all
amounts then on deposit in any account maintained by the Servicer pursuant to
clause (y) of Section 5.03(a) (such account, an "Ineligible Account") which were
deposited in the Ineligible Account pursuant to this Agreement.
Section 5.04 Permitted Withdrawals from the Principal and
Interest Account.
The Servicer shall withdraw or cause to be withdrawn funds
from the Principal and Interest Account (or, so long as a Principal and Interest
Account is maintained pursuant to Section 5.03(a), note on its books that such
funds are no longer funds with respect to the Principal and Interest Account),
for the following purposes:
(i) to remit to the Trustee for deposit into the
Collection Account on the third Business Day prior to the Distribution
Date, the sum of the amounts set forth in Section 5.03 deposited in the
Principal and Interest Account during the related Due Period (excluding
any amounts not required to be deposited in the Principal and Interest
Account pursuant to Section 5.03 and excluding any amounts withdrawn by
the Servicer pursuant to clauses (ii), (iii), (v), (vi), (vii) and (x)
below as of the related Determination Date);
(ii) to reimburse itself for any accrued unpaid
Servicing Fees, for unreimbursed Servicing Advances and, with respect
to any Advance made by the Servicer from its own funds, any
unreimbursed Advance; provided, that any withdrawal of accrued unpaid
Servicing Fees pursuant to this Section 5.04(ii) shall be used first by
the Servicer to pay any amounts due to the Trustee pursuant to this
Agreement. The Servicer's right to reimbursement for unpaid Servicing
Fees and unreimbursed Servicing Advances shall be limited to late
collections on the related Mortgage Loan, including Liquidation
Proceeds, Released Mortgaged Property Proceeds, Insurance Proceeds and
such other amounts as may be collected by the Servicer from the related
Mortgagor or otherwise relating to the Mortgage Loan in respect of
which such unreimbursed Advances are owed. The Servicer's rights to
reimbursement for any unreimbursed Advances shall be limited to
collections of interest on any Mortgage Loan with respect to which an
Advance was made or from late collections on such Mortgage Loans,
including Liquidation Proceeds, Released Mortgaged Property Proceeds,
Insurance Proceeds and such other amounts as may be collected by the
Servicer from the related Mortgagors or otherwise relating to the
Mortgage Loans in respect of which such unreimbursed amounts are owed.
It is understood that the Servicer's right to reimbursement pursuant
hereto shall be prior to the rights of Certificateholders unless the
Representative is the Servicer and the Servicer or any Depositor or
Originator is required to purchase or substitute (or cause to be
purchased or substituted) a Mortgage Loan pursuant to Sections 2.06 and
3.03, in which case the Servicer's right to such reimbursement shall be
subsequent to the
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deposit into the Principal and Interest Account of the purchase price
or Substitution Adjustment pursuant to such Sections 2.06 and 3.03;
(iii) to withdraw any amount received from a
Mortgagor that is recoverable and sought to be recovered as a voidable
preference by a trustee in bankruptcy pursuant to the United States
Bankruptcy Code in accordance with a final, nonappealable order of a
court having competent jurisdiction;
(iv) (a) to make investments in Permitted
Instruments and (b) after effecting the remittance to the Trustee as
provided in Section 5.04(i), to pay to itself interest earned in
respect of Permitted Instruments or on funds deposited in the Principal
and Interest Account;
(v) to withdraw any funds deposited in the
Principal and Interest Account that were not required to be deposited
therein (such as Servicing Compensation) or were deposited therein in
error;
(vi) to pay itself Servicing Compensation
pursuant to Section 7.03 hereof to the extent not retained or paid
pursuant to Section 5.03;
(vii) to withdraw funds necessary for the
conservation and disposition of REO Property pursuant to the third
paragraph of Section 5.10 hereof to the extent such funds were
deposited in the Principal and Interest Account;
(viii) to utilize any excess funds on deposit to
make any Advance pursuant to Section 6.08 or any Servicing Advance
pursuant to the final paragraph of Section 5.01(f);
(ix) to clear and terminate the Principal and
Interest Account upon the termination of this Agreement and allocate
the amounts therein pursuant to the priority set forth in Section
6.05(d); and
(x) to effect, with respect to a Bankruptcy
Loan, the remittance to the Depositor transferring such Bankruptcy
Loan, of an amount equal to the excess, if any, of (a) Pre-Plan
Interest Payments collected in the preceding Due Period with respect to
such Bankruptcy Loan over (b) the interest accrued in such preceding
Due Period, but uncollected as of the last day of such Due Period, with
respect to such Bankruptcy Loan.
In making the withdrawals set forth in clauses (i) through (x)
(inclusive) above, the Servicer shall note (when applicable) in its records the
respective amounts withdrawn with respect to the Fixed Rate Group and the
Adjustable Rate Group. So long as no Servicer Default shall have occurred and be
continuing, the funds held in the Principal and Interest Account may be invested
by the Servicer (to the extent practicable) in Permitted Instruments, as
directed in writing to the Trustee by the Servicer. In either case, funds in the
Principal and Interest Account must be available for withdrawal without penalty,
and any Permitted Instruments must mature not later than the Business Day
immediately preceding the day on which such funds are to be remitted to the
Trustee for deposit in the Collection Account, but in no event later than the
Business Day immediately preceding the Determination Date next following the
date of such
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investment (except, in each case, that if such Permitted Instrument is an
obligation of the institution that maintains the Principal and Interest Account,
then such Permitted Instrument shall mature not later than such Determination
Date) and shall not be sold or disposed of prior to its maturity. All Permitted
Instruments in which funds in the Principal and Interest Account are invested
must be held by or registered in the name of the Trustee. All interest or other
earnings from funds on deposit in the Principal and Interest Account (or any
Permitted Instruments thereof) shall be the exclusive property of the Servicer,
and may be withdrawn from the Principal and Interest Account pursuant to clause
(iv) above. The amount of any losses incurred in connection with the investment
of funds in the Principal and Interest Account in Permitted Instruments shall be
deposited in the Principal and Interest Account by the Servicer from its own
funds immediately as realized without reimbursement therefor.
Section 5.05 Payment of Taxes, Insurance and Other
Charges.
With respect to each Mortgage Loan, the Servicer shall
maintain accurate records reflecting fire and hazard insurance coverage.
With respect to each Mortgage Loan as to which the Servicer
maintains escrow accounts, the Servicer shall maintain accurate records
reflecting the status of ground rents, property taxes and assessments, water
rates and other charges which are or may become a lien upon the Mortgaged
Property and the status of primary mortgage guaranty insurance premiums, if any,
and fire and hazard insurance coverage and shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date and
at a time appropriate for securing maximum discounts allowable, employing for
such purpose deposits of the Mortgagor in any escrow account which shall have
been estimated and accumulated by the Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. To the extent that a
Mortgage does not provide for escrow payments, the Servicer shall monitor such
payments to determine if they are made by the Mortgagor at the time they become
due and, if not paid by the Mortgagor, shall advance such amounts as Servicing
Advances. To the extent ground lease payments are not made by the Mortgagor, and
the Servicer has notice of such failure to pay, the Servicer shall advance such
delinquent payments. Any out-of-pocket expenses incurred by the Servicer
pursuant to this Section 5.05 shall constitute Servicing Advances.
Section 5.06 Transfer of Accounts; Monthly Statements.
The Accounts (other than the Principal and Interest Account,
which shall be established pursuant to Section 5.03 hereof) shall be
established, as of the Closing Date, in the name of the Trustee as Eligible
Accounts pursuant to clause (B) of the definition thereof. Any Account may, upon
written notice from the Servicer to the Trustee, be transferred to a different
depository institution so long as (i) such transfer (A) is to an Eligible
Account and the Certificate Insurer receives notice thereof from the Servicer or
(B) is approved in writing by the Certificate Insurer, which approval shall not
be unreasonably withheld and (ii) written notice of such transfer is sent to
[Rating Agency]. The Trustee shall provide to the Certificate Insurer a monthly
statement of activity in the Accounts established by it, and the Servicer shall
provide to the Trustee and the Certificate Insurer a monthly statement of
activity in the Principal and Interest Account from the party holding such
account.
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Section 5.07 Maintenance of Hazard Insurance.
The Servicer shall cause each Mortgagor to maintain, and if
the Mortgagor does not so maintain, shall itself maintain, subject to the
provisions of Section 5.08 hereof, fire and hazard insurance with extended
coverage customary in the area where the Mortgaged Property is located, in an
amount which is at least equal to the least of (a) the outstanding principal
balance owing on the Mortgage Loan (and any prior lien if the related Mortgage
Loan is in a junior lien position), (b) the full insurable value of the
Mortgaged Property securing the Mortgage Loan and (c) the minimum amount
required to compensate for damage or loss on a replacement cost basis. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as Flood Zone "A", and such flood insurance
has been made available, the Servicer will cause to be purchased a flood
insurance policy with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of (i) the outstanding principal
balance of the Mortgage Loan (plus the principal balance of any lien having
priority over the Mortgage Loan), (ii) the full insurable value of the Mortgaged
Property, or (iii) the maximum amount of insurance available under the National
Flood Insurance Act of 1968, as amended. The Servicer shall also maintain on REO
Property, to the extent reasonably available, on REO Property, fire and hazard
insurance in the amounts described above, liability insurance and, to the extent
required and available under the National Flood Insurance Act of 1968, as
amended, and the Servicer determines that such insurance is necessary in
accordance with accepted second mortgage servicing practices of prudent lending
institutions, flood insurance in an amount equal to that required above. Any
amounts collected by the Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the Mortgaged Property, or to be
released to the Mortgagor in accordance with customary second mortgage servicing
procedures) shall be deposited in the Principal and Interest Account, subject to
(X) retention by the Servicer to the extent such amounts constitute Servicing
Compensation or (Y) withdrawal pursuant to Section 5.04. It is understood and
agreed that no earthquake or other additional insurance need be required by the
Servicer of any Mortgagor or maintained on REO Property, other than pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. All policies required hereunder shall
be endorsed with standard mortgagee clauses with losses payable to the Servicer.
Any out-of-pocket expenses incurred by the Servicer pursuant to this Section
5.07, including, without limitation, any advances of premiums on insurance
policies required by this Section 5.07, shall constitute Servicing Advances.
Section 5.08 Maintenance of Mortgage Impairment Insurance
Policy.
In the event that the Servicer shall obtain and maintain a
blanket policy insuring against fire and hazards of extended coverage on all of
the Mortgage Loans as to which the Mortgagor does not maintain the insurance
described in Section 5.07, then, to the extent such policy names the Servicer as
loss payee and provides coverage in an amount equal to the aggregate unpaid
principal balance on the Mortgage Loans without co-insurance, and otherwise
complies with the requirements of Section 5.07, the Servicer shall be deemed
conclusively to have satisfied its obligations with respect to fire and hazard
insurance coverage under Section 5.07, it being understood and agreed that such
blanket policy may contain a deductible clause, in which case the Servicer
shall, in the event that there shall not have been maintained on the related
Mortgaged Property a policy complying with Section 5.07, and there shall have
been a
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loss which would have been covered by such policy, deposit in the Principal and
Interest Account from the Servicer's own funds the difference, if any, between
the amount that would have been payable under a policy complying with Section
5.07 and the amount paid under such blanket policy. Upon the request of the
Certificate Insurer or the Trustee, the Servicer shall cause to be delivered to
such requesting Person a certified true copy of such policy.
Section 5.09 Fidelity Bond.
The Servicer shall maintain with a responsible company, at its
own expense, a blanket fidelity bond and an errors and omissions insurance
policy in a minimum amount acceptable to FNMA or FHLMC or otherwise as is
commercially available at a cost that is not generally regarded as excessive by
industry standards, with broad coverage on all officers, employees or other
persons acting in any capacity requiring such persons to handle funds, money,
documents or papers relating to the Mortgage Loans ("Servicer Employees"). Any
such fidelity bond and errors and omissions insurance shall protect and insure
the Servicer against losses, including losses resulting from forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such Servicer
Employees. Such fidelity bond shall also protect and insure the Servicer against
losses in connection with the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 5.09 requiring such fidelity bond and errors and
omissions insurance shall diminish or relieve the Servicer from its duties and
obligations as set forth in this Agreement. Upon the request of the Trustee or
the Certificate Insurer, the Servicer shall cause to be delivered to such
requesting Person a certified true copy of such fidelity bond and errors and
omissions insurance policy. On the Closing Date, such fidelity bond and errors
and omissions insurance policy is maintained with certain underwriters at
[National Union Fire Insurance Company of Pittsburgh, Pa.]
Section 5.10 Title, Management and Disposition of REO
Property.
In the event that title to the Mortgaged Property is acquired
in foreclosure or by deed in lieu of foreclosure (an "REO Property"), the deed
or certificate of sale shall be taken in the name of the Trustee for the benefit
of the Certificateholders.
The Servicer shall manage, conserve, protect and operate each
REO Property for the Certificateholders and the Certificate Insurer solely for
the purpose of its prudent and prompt disposition and sale. The Servicer shall,
either itself or through an agent selected by the Servicer, manage, conserve,
protect and operate the REO Property in the same manner that it manages,
conserves, protects and operates for its own account similar property in the
same locality as the REO Property is managed. The Servicer shall attempt to sell
the same (and may temporarily rent the same) on such terms and conditions as the
Servicer deems to be in the best interests of the Certificate Insurer and the
Certificateholders. Any out-of-pocket expenses incurred by the Servicer pursuant
to this Section 5.10 shall constitute Servicing Advances. The Servicer shall
cause the Trustee to be named as a beneficiary and loss payee under the REO
liability provisions of the Servicer's general comprehensive liability insurance
policy.
The Servicer shall cause to be deposited in the Principal and
Interest Account all revenues received with respect to the conservation and
disposition of the related REO Property
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and shall retain or withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property and the fees of any managing
agent acting on behalf of the Servicer.
The disposition of REO Property shall be carried out by the
Servicer at such price, and upon such terms and conditions, as the Servicer
deems to be in the best interest of the Certificateholders and the Certificate
Insurer and, as soon as practicable thereafter, the expenses of such sale shall
be paid. The proceeds of sale of the REO Property and other proceeds of any REO
Disposition shall be deposited in the Principal and Interest Account, net of
related liquidation expenses, Excess Proceeds, any related unreimbursed
Servicing Advances, accrued and unpaid Servicing Fees and unreimbursed Advances
payable to the Servicer in accordance with Section 5.04(ii).
In the event any Mortgaged Property is acquired as aforesaid
or otherwise in connection with a default or imminent default on a Mortgage
Loan, the Servicer shall dispose of such Mortgaged Property prior to the close
of the third calendar year beginning after the year of its acquisition (the
"Disposition Period") unless (i) the Servicer shall have received an Opinion of
Counsel to the effect that the holding of such Mortgaged Property subsequent to
the Disposition Period will not result in the imposition of taxes on "prohibited
transactions" as defined in Section 860F of the Code or cause the Trust REMIC to
fail to qualify as a REMIC at any time that any Class A or Class X Certificates
are outstanding or (ii) the Servicer shall have applied for, at least 60 days
prior to the expiration of such period, an extension of such period in the
manner contemplated by Section 856(e)(3) of the Code, in which case the original
period shall be extended by the applicable period. Notwithstanding any other
provision of this Agreement, (i) no Mortgaged Property acquired by the Servicer
pursuant to this Section shall be rented (or allowed to continue to be rented)
or otherwise used for the production of income or by or on behalf of the Trust
Fund, and (ii) no construction shall take place on such Mortgaged Property if
such activity as described in the preceding clause (i) or clause (ii) is
conducted or otherwise undertaken in such a manner or pursuant to any terms that
would cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code or result in the receipt by
the Trust REMIC of any "net income from foreclosure property" which is subject
to taxation within the meaning of Sections 860G(c) and 857(b)(4)(B) of the Code.
If a period greater than the Disposition Period is permitted under this
Agreement and is necessary to sell any REO Property, the Servicer shall give
appropriate notice to the Trustee, the Certificate Insurer and the
Certificateholders and shall report monthly to the Trustee as to the progress
being made in selling such REO Property.
If the Servicer has actual knowledge that a Mortgaged Property
which the Servicer is contemplating acquiring in foreclosure or by deed in lieu
of foreclosure is located within a 1 mile radius of any site with material
environmental or hazardous waste risks known to the Servicer, the Servicer will
notify the Certificate Insurer and the Trustee prior to acquiring the Mortgaged
Property and shall not take any action without the prior written approval of the
Certificate Insurer and the Trustee.
Nothing in this Section shall affect the Servicer's right to
deem certain advances proposed to be made Nonrecoverable Advances. For the
purpose of this Section 5.10, actual knowledge of the Servicer means actual
knowledge of a Responsible Officer of the Servicer
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involved in the servicing of the relevant Mortgage Loan. Actual knowledge of the
Servicer does not include knowledge imputable by virtue of the availability of
or accessibility to information relating to environmental or hazardous waste
sites or the locations thereof.
Section 5.11 Collection of Certain Mortgage Loan
Payments.
The Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement,
comply with the terms and provisions of any applicable hazard insurance policy.
Consistent with the foregoing, the Servicer may in its discretion waive or
permit to be waived any late payment charge, prepayment charge, assumption fee
or any penalty interest in connection with the prepayment of a Mortgage Loan or
any other fee or charge which the Servicer would be entitled to retain hereunder
as Servicing Compensation and extend the due date for payments due on a Mortgage
Note for a period (with respect to each payment as to which the due date is
extended) not greater than 125 days after the initially scheduled due date for
such payment, provided that such extension may only be made once in any twelve
month period without the prior written consent of the Certificate Insurer, which
consent shall not be unreasonably withheld. In the event the Servicer shall
consent to the deferment of the Due Dates for payments due on a Mortgage Note,
the Servicer shall nonetheless remit any required Advance in accordance with
Section 6.08 hereof with respect to the payments so extended to the same extent
as if such installment were due, owing and delinquent and had not been deferred.
Section 5.12 Access to Certain Documentation and
Information Regarding the Mortgage Loans.
The Servicer and the Depositors shall provide to the Trustee,
the Certificateholders, the Certificate Insurer, the Federal Reserve and to the
supervisory agents and examiners of each of the foregoing, access to the
documentation regarding the Mortgage Loans (such access in the case of the
supervisory agents and examiners shall be limited to that required by applicable
state and federal regulations), such access being afforded without charge but
only upon reasonable request and during normal business hours at the offices of
the Servicer designated by it.
Section 5.13 Superior Liens.
The Servicer shall file (or cause to be filed) of record a
request for notice of any action by a superior lienholder under a First Lien for
the protection of the Depositor's and the Trustee's interest, where permitted by
local law and whenever applicable state law does not require that a junior
lienholder be named as a party defendant in foreclosure proceedings in order to
foreclose such junior lienholder's equity of redemption. The Servicer shall also
notify any superior lienholder in writing of the existence of the Mortgage Loan
and request notification of any action (as described below) to be taken against
the Mortgagor or the Mortgaged Property by the superior lienholder.
If the Servicer is notified that any superior lienholder has
accelerated or intends to accelerate the obligations secured by the First Lien,
or has declared or intends to declare a default under the mortgage or the
promissory note secured thereby, or has filed or intends to file
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an election to have the Mortgaged Property sold or foreclosed, the Servicer
shall advance the necessary funds to cure the default or reinstate the superior
lien, if such advance is in the best interests of the Depositors, the
Certificate Insurer and the Certificateholders. The Servicer shall not make such
an advance except to the extent that it determines in its reasonable good faith
judgment that the advance would be recoverable from Liquidation Proceeds on the
related Mortgage Loan. The Servicer shall thereafter take such action as is
necessary to recover the amount so advanced.
ARTICLE VI
PAYMENTS TO THE CERTIFICATEHOLDERS
Section 6.01 Establishment of Collection Account; Deposit
in Accounts.
(a) No later than the Closing Date, the Trustee, for the
benefit of the Certificateholders and the Certificate Insurer, as their
interests may appear, shall establish and maintain a collection account (a
"Collection Account") in the name of the Trustee, in trust for the benefit of
Certificateholders. The Collection Account shall be established and maintained
in the name of the Trustee, in trust for the benefit of Certificateholders and
shall be established and maintained as an Eligible Account and the Trustee shall
keep accurate records with respect thereto.
The Trustee shall, promptly upon receipt, deposit in the
Collection Account and retain therein:
(i) the amounts remitted by the Servicer
pursuant to Section 5.04(i);
(ii) the Advances pursuant to Section 6.08
remitted to the Trustee by the Servicer;
(iii) amounts transferred from the Spread Account
pursuant to Section 6.09(b)(ii) and Insured Payments pursuant to
Section 6.05(c); and
(iv) amounts required to be paid by the Servicer
pursuant to Section 6.04(e) in connection with losses on investments of
amounts in the Collection Account.
In making the deposits set forth in clauses (i) through (iv)
(inclusive) above, the Trustee shall note in its records (if applicable) the
respective amounts deposited with respect to the Fixed Rate Group and the
Adjustable Rate Group.
With respect to each Distribution Date, on or before such date
the Trustee shall make the withdrawals from the Collection Account, as set forth
in Section 6.05 hereof, and shall cause the amount of Available Payment Amounts
and any Insured Payments received to be distributed in respect of the
Certificates pursuant to Section 6.05 hereof on such date.
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Section 6.02 Permitted Withdrawals from Collection
Account.
The Trustee shall withdraw amounts on deposit in the
Collection Account on each Distribution Date (except as set forth in clause (iv)
below) in the following order of priority:
(i) to make deposits in the Insurance Account
established pursuant to Section 6.03(a) (in accordance with Section
6.05(d)(i));
(ii) to make deposits in the Spread Account
pursuant to Section 6.09(a)(i) (which for federal income tax purposes
will be treated in the manner described in Section 6.09);
(iii) to make the distributions pursuant to
Section 6.05(d)(iii)-(viii); and
(iv) on any day during the related Accrual
Period, and in no particular order of priority:
(A) to invest amounts on deposit in the
Collection Account in Permitted Instruments or such other
instruments as may be approved in writing by the Certificate
Insurer (with written notice to [Rating Agency]) pursuant to
Section 6.04;
(B) to pay to the Servicer interest paid and
earnings realized on Permitted Instruments with respect to
funds in the Collection Account;
(C) to withdraw any amount deposited in the
Collection Account not required to be deposited therein or
deposited therein in error;
(D) to withdraw any amount that constitutes
an Advance by Servicer of its own funds or a Mortgagor payment
previously deposited into the Collection Account that is held
to constitute a voidable preference by a trustee in bankruptcy
pursuant to the United States Bankruptcy Code in accordance
with a final, nonappealable order of a court having competent
jurisdiction; and
(E) to clear and terminate the Collection
Account upon the termination of this Agreement and allocate
amounts therein pursuant to Section 6.05(d).
In making the withdrawals set forth in clauses (i) through
(iv) (inclusive) above, the Trustee shall note in its records (if applicable)
the respective amounts withdrawn with respect to the Fixed Rate Group and the
Adjustable Rate Group. In addition, the Trustee shall keep and maintain a
separate accounting for withdrawals from the Collection Account.
Section 6.03 Establishment of Insurance Account: Deposits
in Insurance Account: Permitted Withdrawals from Insurance Account.
(a) No later than the Closing Date, the Trustee, for the
benefit of the Certificateholders and the Certificate Insurer, shall establish
and maintain one or more Eligible
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Accounts as trust accounts with itself which shall not be interest-bearing,
titled "EQCC Home Equity Loan Trust 199_-_ Insurance Account". The Insurance
Account shall bear an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders and the
Certificate Insurer. On each Distribution Date, the Trustee, upon receipt (and
to the extent received), promptly shall deposit into the Insurance Account in
accordance with Section 6.02, an amount equal to the aggregate Monthly Premium
with respect to the Class A-1F Certificates and Class A-1A Certificates (in each
case based on the respective principal balances of the related Certificates) due
on such Distribution Date in accordance with Section 6.05(d).
If at any time the amount then on deposit in the Insurance
Account shall be insufficient to pay in full the fees and expenses of the
Certificate Insurer then due, the Trustee shall withdraw such amount from the
Spread Account.
(b) The Trustee may make withdrawals from the Insurance
Account for application in the following order:
(i) to pay the Certificate Insurer the aggregate
Monthly Premium on each Distribution Date;
(ii) to withdraw amounts not required to be
deposited in the Insurance Account or deposited therein in error; and
(iii) to reimburse the Spread Account for any
amounts withdrawn from it pursuant to the last paragraph of subclause
(a) above on any previous Distribution Dates.
Section 6.04 Investment of Accounts.
(a) So long as no Servicer Default shall have occurred
and be continuing, all or a portion of any Account held by the Trustee shall be
invested and reinvested by the Trustee (or remain uninvested), as directed in
writing by the Servicer on its own behalf, in one or more Permitted Instruments
(or, in the case of the Collection Account, in such other instruments approved
in writing by the Certificate Insurer (with written notice to [Rating Agency]))
bearing interest or sold at a discount. If a Servicer Default shall have
occurred and be continuing, the Trustee shall invest all Accounts in Permitted
Instruments described in paragraph (iv) of the definition of Permitted
Instruments. At no time shall any such investment in any Account mature later
than the Business Day immediately preceding the date on which such amounts are
required by the terms hereof to be withdrawn from such Account, which (i) in the
case of the Collection Account, shall be the next Distribution Date, (ii) in the
case of the Principal and Interest Account, shall be the third business day
preceding the next Distribution Date and (iii) in all other cases, until the day
actually withdrawn pursuant to the terms hereof.
(b) If any amounts are needed for disbursement from any
Account held by the Trustee and sufficient uninvested funds are not available to
make such disbursement, the Trustee shall cause to be sold or otherwise
converted to cash a sufficient amount of the investments in such Account. The
Trustee shall not be liable for any investment loss or other charge resulting
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therefrom unless the Trustee's failure to perform in accordance with this
Section 6.04 is the cause of such loss or charge.
(c) Subject to Section 12.01 hereof, the Trustee shall
not in any way be held liable by reason of any insufficiency in any Account held
by the Trustee resulting from any investment loss on any Permitted Instrument
(or other instrument permitted by Section 6.04(a)) included herein (except to
the extent that the Trustee is the obligor and has defaulted thereon).
(d) The Trustee shall invest and reinvest funds in the
Accounts held by it, to the fullest extent practicable, in such manner as the
Servicer shall from time to time direct as set forth in Section 6.04(a), but
only in one or more Permitted Instruments (or other instrument permitted by
Section 6.04(a)).
(e) All income or other gain from investments in any
Account held by the Trustee, or from amounts on deposit in such Account and
invested in Permitted Instruments, shall be deposited in such Account, as the
case may be, immediately on receipt, and the Trustee shall notify the Servicer
of any loss resulting from such investments. Upon receipt of such notification,
the Servicer shall promptly remit the amount of any such loss from its own
funds, without reimbursement therefor, to the Trustee for deposit in the Account
from which the related funds were withdrawn for investment.
(f) Any investment earnings on funds held in the
Principal and Interest Account may be reinvested by the Servicer and the
proceeds of such reinvestment are for the account of the Servicer.
(g) Notwithstanding any of the foregoing provisions of
this Section 6.04, at the option of the Class X Certificateholders, exercised by
written direction to the Trustee (such written direction, the "Holder Discretion
Notice"), all or specified percentages (such specified percentage not to exceed
the Percentage Interest of the Class X Certificates of such Holder) of the funds
on deposit in the Spread Account shall be segregated into separate sub-accounts
(each, a "Holder Discretion Account") in a manner designated by such Class X
Certificateholder which does not impair the Class A Certificateholders' or the
Certificate Insurer's interest in distributions from the Spread Account or in
any such separate sub-accounts. Amounts in any Holder Discretion Account shall
be invested in Permitted Instruments at the direction of the Class X
Certificateholder designated in the Holder Discretion Notice (the percentage of
such funds to be invested at the direction of any one Class X Certificateholder
not to exceed the Percentage Interest of the Class X Certificates of such Class
X Certificateholder). The Trustee shall separately report investment income on
such amounts so invested to such Class X Certificateholder. The Class X
Certificateholder directing the investments in any Holder Discretion Account
shall deposit in such Holder Discretion Account, from its own funds, the amount
of any losses incurred in respect of any such investments no later than the
close of business on the Business Day immediately preceding the Distribution
Date immediately following such loss. The Trustee shall have no liability or
responsibility with respect to any Holder Discretion Account and the provisions
of Sections 6.04(a), (b), (d) and (e) shall no longer apply thereto.
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Section 6.05 Priority and Subordination of Distributions.
(a) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund, and all ownership interests
of the Certificateholders in such distributions, shall be as set forth in this
Agreement. The rights of the Class X Certificateholders to receive distributions
in respect of the Class X Certificates shall be subject and subordinate to the
preferential rights of the Class A Certificateholders to receive distributions
in respect of the Class A Certificates, to the extent set forth herein, and
distributions on the Class X Certificates are subject and subordinate to the
maintenance of the Specified Spread Account Requirement as specified herein. In
accordance with the foregoing, the interests of the Class X Certificateholders
in amounts deposited in the Spread Account from time to time shall not vest
unless and until such amounts are distributed in respect of the Class X
Certificates in accordance with the terms of this Agreement. Notwithstanding
anything contained in this Agreement to the contrary, no Certificateholder shall
be required to refund any amount properly distributed to it pursuant to Section
6.02, 6.05, 6.09(b) or 6.09(d).
(b) [Reserved];
(c) As soon as possible, and in no event later than 10:00 a.m.
New York time on the Business Day immediately preceding each Distribution Date,
the Trustee shall furnish the Certificate Insurer and the Servicer with a
completed notice in the form set forth as Exhibit Q hereto (the "Notice") in the
event that an Event of Nonpayment will occur, pursuant to the definition
thereof, with respect to such Distribution Date. The Notice shall specify the
amount of Insured Payment and shall constitute a claim for an Insured Payment
pursuant to the Certificate Insurance Policy. Upon receipt of Insured Payments
for the benefit of the Class A Certificateholders under the Certificate
Insurance Policy, the Trustee shall deposit such Insured Payments in the
Collection Account.
The Trustee shall receive, as attorney-in-fact of each Holder
of a Class A Certificate, any Insured Payment from the Certificate Insurer and
disburse the same to each Holder of a Class A Certificate, respectively, in
accordance with the provisions of this Section 6.05. Insured Payments disbursed
by the Trustee from proceeds of the Certificate Insurance Policy shall not be
considered payment by the Trust Fund nor shall such payment discharge the
obligation of the Trust Fund with respect to such Class A Certificates, and the
Certificate Insurer shall become the owner of such unpaid amounts due from the
Trust Fund in respect of Class A Certificates. The Trustee hereby agrees on
behalf of each Holder of a Class A Certificate for the benefit of the
Certificate Insurer that it recognizes that to the extent the Certificate
Insurer makes Insured Payments, either directly or indirectly (as by paying
through the Trustee), to the Class A Certificateholders, the Certificate Insurer
will be subrogated to the rights of the Class A Certificateholders, as
applicable, with respect to such Insured Payment and shall be deemed to the
extent of the payments so made to be a registered Class A Certificateholder and
shall receive all future Class A Remittance Amounts, as the case may be, until
all such Insured Payments by the Certificate Insurer have been fully reimbursed
together with interest thereon at the applicable Pass-Through Rate, subject to
the following paragraph. To evidence such subrogation, the Trustee shall note
the Certificate Insurer's rights as subrogee on the registration books
maintained by the Trustee upon receipt from the Certificate Insurer of proof of
payment of any
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Insured Payment. Except as otherwise described herein, the Certificate Insurer
shall not acquire any voting rights hereunder as a result of such subrogation.
It is understood and agreed that the intention of the parties
is that the Certificate Insurer shall not be entitled to reimbursement on any
Distribution Date for amounts previously paid by it unless on such Distribution
Date the Class A Certificateholders shall also have received the full amount of
the Class A Remittance Amount for such Distribution Date. For purposes of
implementing the Certificate Insurer's rights as subrogee, distributions shall
be made to the Certificate Insurer under priority fourth of subsection (d) of
this Section 6.05 after all distributions are made to the Class A
Certificateholders on the applicable Distribution Date as aforesaid.
(d) Not later than 12:00 p.m. New York time on each
Distribution Date, with respect to the Class A-1F Certificates and the Class
A-1A Certificates, the Trustee shall withdraw from the Collection Account, from
the amounts available therein as set forth in this Article VI, if any, and
shall, to the extent available, distribute (without duplication) such amount in
the priority indicated:
(i) first, sequentially, (a) for deposit into the
Insurance Account for the benefit of the Certificate Insurer, the
Monthly Premium with respect to such Certificates payable to the
Certificate Insurer and (b) for remittance of the Initial Premium Fee
Recovery Amount to the Representative;
(ii) second, for deposit into the Spread Account,
the Excess Spread with respect to the related Mortgage Loan Group
(which for federal income tax purposes will be treated in the manner
described in Section 6.09);
(iii) third, from amounts attributable to the related
Mortgage Loan Group and, subject to Section 6.09(b)(ii), amounts
withdrawn from the Spread Account pursuant to Section 6.09(b)(ii), (A)
to the Class A-1F Certificateholders, the Class A-1F Interest
Remittance Amount; and (B) to the Class A-1A Certificateholders, the
Class A- 1A Interest Remittance Amount;
(iv) fourth, to the Class A-1F Certificates and to
the Class A-1A Certificates, the Class A-1F Principal Remittance Amount
and the Class A-1A Principal Remittance Amount, respectively,
concurrently as follows:
(1) to the Class A-1F Certificates, until
the Principal Balance of such Class has been
reduced to zero, the Class A-1F Principal
Remittance Amount; and
(2) to the Class A-1A Certificates, until
the Principal Balance of such Class has been
reduced to zero, the Class A-1A Principal
Remittance Amount;
(v) fifth, to the Trustee, any amounts then due and
owing representing fees of the Trustee (without regard to amounts
attributable to either Mortgage Loan
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Group); provided, that the Trustee certifies in writing that such
amount is due and owing and has not been paid by the Servicer within 30
days after written demand therefor;
(vi) sixth, to the Servicer and/or the
Representative, as applicable, any Reimbursable Amount (without regard
to amounts attributable to either Mortgage Loan Group);
(vii) seventh, to the Servicer an amount equal to
Nonrecoverable Advances previously made by the Servicer and not
previously reimbursed (without regard to amounts attributable to either
Mortgage Loan Group); and
(viii) eighth, to the Class R Certificateholders, the
balance if any of amounts remaining in the Collection Account.
(e) All distributions made to the Class A Certificateholders
or the Class X and Class R Certificateholders as a Class on each Distribution
Date will be made on a pro rata basis among the Certificateholders of the
respective Class of record on the next preceding Record Date based on the
Percentage Interest represented by their respective Certificates, and shall be
made by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall own of record Class A Certificates
which have denominations aggregating at least $1,000,000 appearing in the
Certificate Register, and in all cases with respect to the Class X and Class R
Certificates, and shall have provided complete wiring instructions at least five
Business Days prior to the Record Date, and otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Section 6.06 [RESERVED].
Section 6.07 Statements.
Not later than 12:00 noon Chicago, Illinois time on the
Business Day preceding each Determination Date, the Servicer shall deliver to
the Trustee and the Certificate Insurer a computer tape or written report
containing the information set forth on Exhibit R as to each Mortgage Loan with
respect to the related Due Period and such other information with respect to the
Mortgage Loans in the aggregate as the Trustee shall reasonably require. Not
later than 12:00 noon Chicago, Illinois time two Business Days preceding each
Distribution Date, the Trustee shall deliver to the Depositors, any Paying
Agent, the Servicer, the Certificate Insurer, [Rating Agency] and [Rating
Agency] by telecopy, by request, a statement (the "Remittance Report")
containing the information set forth below with respect to the succeeding
Distribution Date, with a hard copy thereof to be delivered on the immediately
succeeding Business Day:
(i) the Available Payment Amount attributable to
each Mortgage Loan Group and any portion of the Available Payment
Amount that has been deposited in the Collection Account but may not be
withdrawn therefrom pursuant to an order of a United States bankruptcy
court of competent jurisdiction imposing a stay pursuant to Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Bankruptcy Code;
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(ii) the Class A-1F Principal Balance, the Class
A-1A Principal Balance and the Pool Principal Balance with respect to
each Mortgage Loan Group, as reported in the Remittance Report provided
pursuant to subclause (xiii) below for the immediately preceding
Distribution Date, or, in the case of the first Determination Date, the
Original Class A-1F Principal Balance, the Original Class A-1A
Principal Balance and the Original Pool Principal Balance with respect
to each Mortgage Loan Group;
(iii) with respect to the Mortgage Pool and each
Mortgage Loan Group, the number and Principal Balances of all Mortgage
Loans which were the subject of Principal Prepayments during the
related Due Period;
(iv) with respect to the Mortgage Pool and each
Mortgage Loan Group, the amount of all Curtailments which were received
during the related Due Period;
(v) with respect to the Mortgage Pool and each
Mortgage Loan Group, the aggregate amount of principal portion of all
Monthly Payments received during the related Due Period;
(vi) with respect to the Mortgage Pool and each
Mortgage Loan Group, the amount of interest received on the Mortgage
Loans during the related Due Period;
(vii) with respect to the Mortgage Pool and each
Mortgage Loan Group, the aggregate amount of the Advances made and
recovered with respect to such Distribution Date;
(viii) with respect to the Mortgage Pool and each
Mortgage Loan Group, the delinquency and foreclosure information set
forth in the form attached hereto as Exhibit H and the amount of
Mortgage Loan Losses during the related Due Period;
(ix) the Class A-1F Principal Balance and the
Class A-1A Principal Balance after giving effect to the distribution to
be made on such Distribution Date;
(x) with respect to the Mortgage Pool and each
Mortgage Loan Group, the weighted average maturity and the weighted
average Mortgage Interest Rate of the Mortgage Loans in each Mortgage
Loan Group as of the last day of the related Due Period;
(xi) the Servicing Fees paid and Servicing Fees
accrued during the related Due Period;
(xii) the amount of all payments or reimbursements
to the Servicer pursuant to Section 5.04 (ii), (iv), (v), (vi) and
(vii) paid or to be paid since the prior Distribution Date (or in the
case of the first Distribution Date, since the Closing Date);
(xiii) the Pool Principal Balance and aggregate
Principal Balance for each Mortgage Loan Group as of the last day of
the related Due Period;
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(xiv) such other information as the Certificate
Insurer and the Certificateholders may reasonably require;
(xv) the amounts which are reimbursable to the
Servicer, the Representative or the Depositors, as appropriate,
pursuant to Section 6.05;
(xvi) with respect to the Mortgage Pool and each
Mortgage Loan Group, the number of Mortgage Loans outstanding at the
beginning and at the end of the related Due Period;
(xvii) the aggregate interest accrued on the
Mortgage Loans at their respective Mortgage Interest Rates for the
related Due Period;
(xviii) the Subordinated Amount, the amount on
deposit in the Spread Account, the Cumulative Excess Spread Receipts,
in each case after giving effect to any payments or withdrawals on such
Distribution Date, and with respect to the Mortgage Pool and each
Mortgage Loan Group, the Excess Spread with respect to such
Distribution Date;
(xix) the aggregate Mortgage Loan Losses since the
Cut-off Date as of the end of the related Due Period;
(xx) the Class A-1A LIBOR Interest Carryover and
Class A-1F LIBOR Interest Carryover with respect to such Distribution
Date and, any such unpaid Class A-1A LIBOR Interest Carryover and Class
A-1F LIBOR Interest Carryover from prior Distribution Date(s),
including interest accrued thereon; and
(xxi) the Class A-1F Pass-Through Rate and the
Class A-1A Pass-Through Rate for the related Accrual Period.
The Trustee shall forward such report to the
Certificateholders on the Distribution Date, by telecopy, with a hard copy to
follow (in the case of the Depository) or by first class mail. The Depositors
and the Trustee may fully rely upon and shall have no liability with respect to
information provided by the Servicer.
To the extent that there are inconsistencies between the
telecopy of the Remittance Report and the hard copy thereof, the Servicer and
the Trustee may rely upon the telecopy.
In the case of information furnished pursuant to subclauses
(ii) and (ix) above, the amounts shall be expressed in a separate section of the
report as a dollar amount for each of the Class A Certificates for each $1,000
original principal amount as of the Cut-off Date.
(a) Upon reasonable advance notice in writing, the Servicer
will provide to the Trustee access to information and documentation regarding
the Mortgage Loans sufficient to permit any Holder which is a savings and loan
association, bank or insurance company to comply with applicable regulations of
the FDIC or other regulatory authorities with respect to investment in the
Certificates, as applicable.
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(b) Not later than 10 days after each Distribution Date, the
Servicer shall provide the Loss Coverage Ratio to the Trustee and the
Certificate Insurer as of the most recent Distribution Date. In addition, the
Servicer shall furnish to the Trustee and to the Certificate Insurer, during the
term of this Agreement, such periodic, special, or other reports or information
not specifically provided for herein, as may be necessary, reasonable, or
appropriate with respect to the Trustee or the Certificate Insurer, as the case
may be, or otherwise with respect to the purposes of this Agreement, all such
reports or information to be provided by and in accordance with such applicable
instructions and directions as the Trustee or the Certificate Insurer may
reasonably require; provided, that the Servicer shall be entitled to be
reimbursed by the requesting party, for the fees and actual expenses associated
with providing such reports, if such reports are not generally produced in the
ordinary course of its business.
(c) Reports and computer tapes furnished by the Servicer
pursuant to this Agreement shall be deemed confidential and of proprietary
nature, and shall not be copied or distributed except in connection with the
purposes and requirements of this Agreement; provided that the Certificate
Insurer may copy or distribute such information (A) pursuant to a subpoena or
order issued by a court of competent jurisdiction or by a judicial or
administrative or legislative body or committee, (B) as may be required in any
report, statement or testimony submitted to any Federal, state, municipal or
other regulatory body having jurisdiction over the Certificate Insurer, (C) in
order to comply with any law, ruling, order or regulation applicable to the
Certificate Insurer, or (D) as may be required by any rating agency or
reinsurer. No Person entitled to receive copies of such reports or tapes shall
use the information therein for the purpose of soliciting the customers of the
Originators or for any other purpose except as set forth in this Agreement.
(d) The Trustee shall promptly send to the Certificate Insurer
and, upon request, to each Certificateholder in writing:
(i) notice of any reduction in the Specified Spread
Account Requirement;
(ii) notice of any reduction of the percentages set
forth in the definition of "Monthly Excess Spread Amount";
(iii) notice of the appointment of any Subservicer;
(iv) notice of any transfer of any Account to a
different depository institution;
(v) a copy of each Officer's Certificate delivered
pursuant to Section 7.04 and any notice received from the Servicer of a
change in the fiscal year of the Servicer;
(vi) a copy of each letter delivered pursuant to
Section 7.05; and
(vii) notice of the receipt by the Trustee of any
information regarding the Servicer's servicing activities pursuant to
the last paragraph of Section 10.01(c).
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provided, that in each case the Trustee shall only be required to send such
notices and other items to such Persons to the extent that the Trustee has
itself received the related information.
The Depositors, the Servicer and the Trustee on behalf of
Certificateholders (the "Trust Parties") hereby authorize the Certificate
Insurer to include the information contained in reports provided to the
Certificate Insurer hereunder (the "Information") on The Bloomberg, an on-line
computer based information network maintained by Bloomberg L.P. ("Bloomberg"),
or in other electronic or print information services. The Trust Parties agree
not to commence any actions or proceedings, or otherwise assert any claims,
against the Certificate Insurer or its affiliates or any of the Certificate
Insurer's or its affiliates' respective agents, representatives, directors,
officers or employees (collectively, the "Certificate Insurer Parties"), arising
out of, or related to or in connection with the dissemination and/or use of any
Information by the Certificate Insurer, including, but not limited to, claims
based on allegations of inaccurate, incomplete or erroneous transfer of
information by the Certificate Insurer to Bloomberg or otherwise (other than in
connection with the Certificate Insurer's negligence or willful misconduct). The
Trust Parties waive their rights to assert any such claims against the
Certificate Insurer Parties and fully and finally release the Certificate
Insurer Parties from any and all such claims, demands, obligations, actions and
liabilities (other than in connection with the Certificate Insurer's negligence
or willful misconduct). The Certificate Insurer makes no representations or
warranties, expressed or implied, of any kind whatsoever with respect to the
accuracy, adequacy, timeliness, completeness, merchantability or fitness for any
particular purpose of any Information in any form or manner. The Certificate
Insurer reserves the right at any time to withdraw or suspend the dissemination
of the Information by the Certificate Insurer. The authorizations, covenants and
obligations of the Trust Parties under this section shall be irrevocable and
shall survive th termination of this Agreement.
Section 6.08 Advances by the Servicer.
Not later than the close of business on the third Business Day
preceding each Distribution Date, the Servicer shall remit to the Trustee (but
solely from and to the extent of amounts on deposit in the Principal and
Interest Account as of the related Determination Date, after giving effect to
withdrawals from the Principal and Interest Account as of the Determination Date
for such Distribution Date pursuant to Section 5.04(i)), an amount (the
"Advance") equal to the sum of (a) the interes accrued in the related Due Period
on the Mortgage Loans but uncollected as of the close of business on the last
day of such Due Period (net of the Servicing Fee) and (b) with respect to each
REO Property which was acquired during or prior to the related Due Period and as
to which an REO Disposition did not occur during the related Due Period, an
amount equal to the excess, if any, of interest on the Principal Balance of such
REO Property computed at the related Mortgage Interest Rate (net of the
Servicing Fee (computed in the manner described in paragraph (i) or (ii), as
applicable, of the definition thereof)) for the most recently ended Due Period
over the net income from the REO Property deposited in the Principal and
Interest Account during such Due Period pursuant to Section 5.10.
Notwithstanding the provisions in the foregoing paragraph of
this Section 6.08, with respect to the Distribution Dates occurring on or before
___________, ____. if the amounts on deposit in the Principal and Interest
Account are insufficient to make the full Advance (as defined herein), and as a
result thereof an Event of Nonpayment would occur, the Servicer shall
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make an Advance from its own funds equal to such insufficiency to the
extent of delinquent payments of interest and may reimburse itself for
such Advances from collections on the related Mortgage Loans pursuant
to Section 5.04(ii).
Section 6.09 Establishment of Spread Account; Deposits in
Spread Account; Permitted Withdrawals from Spread Account.
(a) No later than the Closing Date, the Trustee will establish
and maintain in a non-interest bearing trust account with itself, a Spread
Account which shall be an Eligible Account, titled "EQCC Home Equity Loan Trust
199_-_ Spread Account". At the time of the issuance of the Certificates, there
shall be no initial deposit required to be made in the Spread Account from the
proceeds of the sale of Class A Certificates. The Spread Account shall be an
asset of the Trust Fund, in the control of the Trustee. No holder of any
Certificate shall have any rights with respect to the assets contained in the
Spread Account other than as specifically set forth in this Agreement, and the
assets contained therein shall not be "property of the estate" of any
Certificateholder pursuant to 11 U.S.C. Section 541, shall not be available to
satisfy any obligations of any Certificateholder, and shall not be available to
the creditors of any Certificateholder. The Spread Account shall be an "outside
reserve fund" within the meaning of Treasury Regulation 1.860G-2(h) and shall
not be an asset of the Trust REMIC. Solely for federal income tax purposes, the
Trustee and the Holders of the Class X Certificates shall treat the Class X
Remittance Amount as having been distributed in respect of the REMIC regular
interest represented by the Class X Certificates and held in the Spread Account
to the extent provided herein. Distributions on the Class X Certificates out of
the Spread Account shall not be considered to be distributions from the Trust
REMIC. The parties hereto intend and agree, as a condition to ownership of the
Class X Certificates, and the Trustee agrees to take no action inconsistent
therewith, to treat the Spread Account as an arrangement described in Treasury
Regulations Section 1.61-13(b); provided, that if the Internal Revenue Service
does not permit such treatment, the parties hereto intend and agree, as a
condition of ownership of the Class X Certificates, and the Trustee agrees t
take no action inconsistent therewith, that solely for federal and, to the
extent applicable, state and local tax purposes, (i) if the Class X Certificates
are held by a single Holder, that the assets and liabilities of the Spread
Account be treated solely for federal income tax purposes as assets and
liabilities of the Class X Certificateholder pursuant to Treasury Regulations
Section 301.7701-3(b)(ii), and (ii) if the Class X Certificates are held by more
than one Holder, the Spread Account be treated solely for federal income tax
purposes as a partnership pursuant to Treasury Regulations Section
301.7701-3(b)(ii), in which event each Class X Certificateholder, including all
successors to the original Class X Certificateholder, irrevocably elects under
Section 761 of the Code to exclude the Spread Account from the application of
Subchapter K of the Code. The Trustee shall separately report to any Class X
Certificateholders amounts deposited into, paid to Class X Certificateholders
from, and released from the Spread Account, together with reinvestment income
thereon. Notwithstanding the foregoing, the rights of the Class X
Certificateholders are subject to and subordinate to the Class A
Certificateholders, the Servicer and the Representative as described in Section
6.05(a), 6.09(b)(iii) and 6.09(b)(iv).
After the time of the issuance of the Certificates, the
Trustee shall, promptly upon receipt, deposit into the Spread Account and retain
therein:
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(i) on each Distribution Date, the Excess Spread
remitted by the Trustee pursuant to Section 6.05(d)(ii) for the related
Distribution Date;
(ii) upon receipt, amounts required to be withdrawn
from the Insurance Account for deposit in the Spread Account pursuant
to Section 6.03(b)(iii); and
(iii) upon receipt, amounts required to be paid by
the Servicer pursuant to Section 6.04(e) or a Class X Certificateholder
pursuant to Section 6.04(g);
provided, however, that the Trustee shall not accept funds for
deposit into the Spread Account from any Person, other than funds constituting
Excess Spread, without the consent of the Certificate Insurer.
(b) From amounts on deposit in the Spread Account (after
giving effect to the deposits therein pursuant to Section 6.09(a)) the Trustee
shall make withdrawals on each Distribution Date in the following order of
priority:
(i) to deposit in the Insurance Account the amount
of any insufficiency in such Account which the Servicer failed to
advance pursuant to Section 6.03(a);
(ii) to deposit in the Collection Account, an amount
(the "Spread Account Amount") equal to the excess of (x) the Class A
Remittance Amount over (y) the Available Payment Amount with respect to
both Mortgage Loan Groups, less the amounts withdrawn from the
Collection Account with respect to both Mortgage Loan Groups, pursuant
to Section 6.02(i). Amounts on deposit in the Spread Account shall be
available to all Class A Certificateholders pursuant to this clause
(ii) without regard to whether such Certificates are Class A-1F
Certificates or Class A-1A Certificates;
(iii) (1) to pay to the Servicer from the Remainder
Excess Spread Amount (net of any such amounts paid pursuant to clauses
(b)(i) and (b)(ii) above) with respect to any Distribution Date for any
Reimbursable Amounts and (2) the remainder of such Remainder Excess
Spread Amount to the Class X Certificateholders to the extent of the
Unpaid Class X Remittance Amount;
(iv) to the extent that the remaining amount then on
deposit in the Spread Account then exceeds the Specified Spread Account
Requirement as of such Distribution Date (such excess, a "Spread
Account Excess"), an amount equal to such Spread Account Excess shall
be distributed to the Servicer and/or the Representative to the extent
of any Reimbursable Amounts; then (a) pro rata (i) to the Holders of
the Class A-1A Certificates in payment of any Class A-1A LIBOR Interest
Carryover to the extent attributable to the Mortgage Loans in the
Adjustable Rate Group and (ii) to the Holders of the Class A-1F
Certificates in payment of any Class A-1F LIBOR Interest Carryover to
the extent attributable to the Mortgage Loans in the Fixed Rate Group
and (b) to the Holders of the Class X Certificates to the extent of the
Unpaid Class X Remittance Amount.
and also, in no particular order of priority:
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(v) to invest amounts on deposit in the Spread
Account in Permitted Instruments pursuant to Section 6.04;
(vi) to withdraw any amount not required to be
deposited in the Spread Account or deposited therein in error; and
(vii) to clear and terminate the Spread Account upon
the termination of this Agreement.
(c) Any amounts which are required to be withdrawn from
the Spread Account pursuant to paragraph (b) above shall be withdrawn from the
Spread Account in the following order of priority: (i) first, from any
uninvested funds therein and (ii) second, from the proceeds of the liquidation
of any investments therein pursuant to Section 6.04(b).
(d) Upon the earlier to occur of the Cross-Over Date or
the Distribution Date on which all amounts due have been paid to the Class A
Certificateholders, including the Certificate Insurer as subrogee of the Class A
Certificateholders, the Trustee shall:
(A) clear and terminate the Spread
Account, liquidate any investments therein and
distribute any uninvested funds therein or the
proceeds of such liquidation to the Servicer and/or
the Representative to the extent of any Reimbursable
Amounts and the remainder to the Class X
Certificateholders, the Unpaid Class X Remittance
Amount;
(B) distribute future receipts of the
Excess Spread to the Servicer and/or the
Representative to the extent of any Reimbursable
Amounts and the remainder to the Class X
Certificateholders, the Unpaid Class X Remittance
Amount.
ARTICLE VII
GENERAL SERVICING PROCEDURES
Section 7.01 Assumption Agreements.
When a Mortgaged Property has been or is about to be conveyed
by the Mortgagor, the Servicer shall, to the extent it has knowledge of such
conveyance or prospective conveyance, exercise its rights to accelerate the
maturity of the related Mortgage Loan under any "due-on-sale" clause contained
in the related Mortgage or Mortgage Note; provided, however, that the Servicer
shall not exercise any such right if the "due-on-sale" clause, in the reasonable
belief of the Servicer, is not enforceable under applicable law. In such event,
the Servicer shall enter into an assumption agreement with the person to whom
such property has been or is about to be conveyed, pursuant to which such person
becomes liable under the Mortgage Note and, unless prohibited by applicable law
or the Mortgage Documents, the Mortgagor remains liable thereon. The Servicer is
also authorized with the prior approval of the Certificate Insurer to enter into
a substitution of liability agreement with such person, pursuant to which the
original Mortgagor is released from liability and such person is substituted as
Mortgagor and becomes
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liable under the Mortgage Note. The Servicer shall notify the Depositors, the
Trustee and the Certificate Insurer that any such substitution or assumption
agreement has been completed by forwarding to the Trustee (or to the Custodian
on behalf of the Trustee) the original of such substitution or assumption
agreement and a duplicate thereof to the Depositors and the Certificate Insurer,
which original shall be added by the Trustee (or by the Custodian on behalf of
the Trustee) to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. In connection with any
assumption or substitution agreement entered into pursuant to this Section 7.01,
the Servicer shall not change the Mortgage Interest Rate or the Monthly Payment,
defer or forgive the payment of principal or interest, reduce the outstanding
principal amount or extend the final maturity date on such Mortgage Loan. Any
fee collected by the Servicer for consenting to any such conveyance or entering
into an assumption or substitution agreement shall be retained by or paid to the
Servicer as additional Servicing Compensation.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or any assumption which the Servicer may be
restricted by law from preventing, for any reason whatsoever.
With respect to any mortgage loan secured by an interest in an
Illinois Land Trust, if the Servicer receives notice of the sale of the
beneficial interest in a Illinois Land Trust or the related Mortgaged Property
by the holder of a First Lien secured thereby to a Person other than the
Servicer, the Depositors or the Trustee, then, prior to distribution of any
proceeds of such sale, the Servicer shall demand in writing that such holder of
a First Lien pay the amount necessary to satisfy all indebtedness under the
Mortgage Loan from the proceeds of such sale. If such holder of a First Lien so
requests, the Servicer shall furnish reasonable proof of the Depositor's and
Trustee's interest with respect to such proceeds. Unless and until the Servicer
has received instruction otherwise from the Majority in Aggregate Voting
Interest (with the consent of the Certificate Insurer) or from the Certificate
Insurer, the Servicer shall, with respect to any such First Lien and the related
Mortgage Loan, follow servicing standards consistent with those of prudent
lending institutions in the geographic area where the Mortgaged Property is
located, including the making of any appropriate Servicing Advances with respect
thereto. In any event, the Servicer shall follow any instructions from the
Majority in Aggregate Voting Interest with the consent of the Certificate
Insurer or from the Certificate Insurer as soon as practicable following receipt
thereof.
Section 7.02 Satisfaction of Mortgages and Release of
Mortgage Files.
The Servicer shall not grant a satisfaction or release of a
Mortgage without having obtained payment in full of the indebtedness secured by
the Mortgage or otherwise prejudice any right the Certificateholders or the
Certificate Insurer may have under the mortgage instruments subject to Section
5.01 hereof. The Servicer shall maintain the Fidelity Bond as provided for in
Section 5.09 insuring the Servicer against any loss it may sustain with respect
to any Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
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Upon the payment in full of any Mortgage Loan, or the receipt
by the Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Servicer will immediately notify the
Trustee or the Custodian on behalf of the Trustee by an Officers' Certificate in
the form of Exhibit B attached to the Custodial Agreement (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Principal and Interest Account pursuant to Section 5.03 have been or will be
so deposited) of a Servicing Officer and shall request delivery to it of the
Mortgage File. Upon receipt of such certification and request, the Trustee or
the Custodian on behalf of the Trustee shall promptly release the related
Mortgage File to the Servicer. Expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be payable by the
Servicer and shall not be reimbursed from the Principal and Interest Account or
the Collection Account.
From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any primary mortgage guaranty insurance policy, the Trustee or the Custodian on
behalf of the Trustee shall, upon request of the Servicer and delivery to the
Trustee or the Custodian on behalf of the Trustee of a certification in the form
of Exhibit B attached to the Custodial Agreement signed, by a Servicing Officer,
promptly release the related Mortgage File to the Servicer, and the Trustee
shall execute such documents as shall be necessary to the prosecution of any
such proceedings. Such servicing receipt shall obligate the Servicer to return
the Mortgage File or any document released therefrom to the Trustee or the
Custodian on behalf of the Trustee when the need therefor by the Servicer no
longer exists, unless the Mortgage Loan has been liquidated and the Net
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Principal and Interest Account and remitted to the Trustee for deposit in the
Collection Account or the Mortgage File has been delivered to an attorney, or to
a public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or non-judicially, and the Servicer has
delivered to the Trustee a certificate of a Servicing Officer certifying as to
the name and address of the Perso to which such Mortgage File or such document
was delivered and the purpose or purposes of such delivery. Upon receipt of a
certificate of a Servicing Officer stating that such Mortgage Loan was
liquidated, the servicing receipt shall be released promptly by the Trustee to
the Servicer.
The Trustee shall promptly execute and deliver to the Servicer
any legal notices, court pleadings, requests for trustee's sale in respect of a
Mortgaged Property or any legal action brought to obtain judgment against any
Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency judgment,
or to enforce any other remedies or rights provided by the Mortgage Note or
Mortgage or otherwise available at law or in equity. Together with such
documents or pleadings, the Servicer shall deliver to the Trustee a certificate
of a Servicing Officer requesting that such pleadings or documents be executed
by the Trustee and certifying as to the reason such documents or pleadings are
required and that the execution and delivery thereof by the Trustee will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
The Trustee shall, upon receipt of a written request from a Servicing Officer,
execute any document provided to the Trustee by the Servicer or take any other
action requested in such request that is, in the opinion of the Servicer as
evidenced by such request, required by any state or other jurisdiction to
discharge the lien of a Mortgage upon the satisfaction thereof and the Trustee
will promptly
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sign and deliver, but will not guarantee receipt of, any such documents to the
Servicer, or such other party as the Servicer may direct, within five Business
Days, or more promptly if needed, of the Trustee's receipt of such certificate
or documents. Such certificate or documents shall establish to the Trustee's
satisfaction that the related Mortgage Loan has been paid in full by or on
behalf of the Mortgagor and that such payment has been deposited in the
Principal and Interest Account.
Section 7.03 Servicing Compensation.
As compensation for its services hereunder, the Servicer shall
be entitled to withdraw from the Principal and Interest Account (or, so long as
the Principal and Interest Account is maintained pursuant to Section 5.03(a)(y),
note on its books that such funds are no longer funds with respect to the
Principal and Interest Account) or to retain from interest payments on the
Mortgage Loans, the Servicer's Servicing Fee. Additional servicing compensation
in the form of assumption and other administrative fees (including bad check
charges, late payment fees and similar fees), interest paid on funds on deposit
in the Principal and Interest Account, amounts remitted pursuant to Section
6.03(b)(iv) and Excess Proceeds shall be retained by or remitted to the
Servicer, to the extent not otherwise required to be remitted to the Trustee for
deposit in the Collection Account and not constituting the Representative's
Yield. The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement therefor except as specifically provided for herein. The
Representative's Yield is the property of the Representative, and not the
property of the Servicer, and such ownership shall not be affected by any
termination of the Servicer.
Section 7.04 Annual Statement as to Compliance.
The Servicer will deliver to the Certificate Insurer, the
Trustee and each Rating Agency, not later than the last day of the fourth month
following the end of the Servicer's fiscal year, which currently ends on
December 31, beginning with the fiscal year ending December 31, ____, an
Officers' Certificate stating that (i) the Servicer has fully complied with the
provisions of Articles V and VIII, (ii) a review of the activities of the
Servicer during the preceding fiscal year and of performance under this
Agreement has been made under such officers' supervision, and (iii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officers and the nature and status thereof and the action
being taken by the Servicer to cure such default. The Servicer shall promptly
notify the Certificate Insurer, the Trustee and each Rating Agency promptly upon
any change in the basis on which its fiscal year is determined.
Section 7.05 Annual Independent Public Accountants'
Servicing Report.
Not later than the last day of the fourth month following the
end of the Servicer's fiscal year, beginning with the fiscal year ending
December 31, ____, the Servicer, at its expense, shall cause a firm of
independent public accountants reasonably acceptable to the Trustee and the
Certificate Insurer to furnish a letter or letters to the Certificate Insurer,
the Trustee and each Rating Agency to the effect that such firm has with respect
to the Servicer's
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overall servicing operations examined such operations in accordance with the
requirements of the Uniform Single Attestation Program for Mortgage Bankers, and
stating such firm's conclusions relating thereto.
Section 7.06 Right to Examine Servicer Records.
The Trustee or the Trustee at the request of a Majority in
Aggregate Voting Interest (or the representatives thereof) and the Certificate
Insurer shall have the right upon reasonable prior notice, during normal
business hours and as often as reasonably required, to examine and audit any and
all of the books, records or other information of the Servicer, whether held by
the Servicer or by another on behalf of the Servicer, which may be relevant to
the performance or observance by the Servicer of the terms, covenants or
conditions of this Agreement.
Section 7.07 Reports to the Trustee; Principal and
Interest Account Statements.
Solely with respect to a Principal and Interest Account
maintained pursuant to Section 5.03(a)(x), if the Principal and Interest Account
is not maintained with the Trustee, then not later than 25 days after each
Distribution Date, the Servicer shall forward to the Certificate Insurer and the
Trustee a statement, certified by a Servicing Officer, setting forth the status
of the Principal and Interest Account as of the end of the preceding Due Period
and showing, for the period covered by such statement, the aggregate of deposits
into the Principal and Interest Account for each category of deposit specified
in Section 5.03, the aggregate of withdrawals from the Principal and Interest
Account for each category of withdrawal specified in Section 5.04, the aggregate
amount of permitted withdrawals not made in the related period, and the amount
of Advances, if any, for the related period.
ARTICLE VIII
REPORTS TO BE PROVIDED BY SERVICER
Section 8.01 Financial Statements.
The Servicer will furnish to the Certificate Insurer, the
Depositors or the Trustee on request unaudited financial statements of the
Servicer.
The Servicer also agrees to make available on a reasonable
basis to the Certificate Insurer, the Depositor, the Trustee, any
Certificateholder or any prospective Certificateholder a knowledgeable financial
or accounting officer for the purpose of answering reasonable questions
respecting recent developments affecting the Servicer or the financial
statements of the Servicer.
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ARTICLE IX
THE SERVICER
Section 9.01 Indemnification; Third Party Claims.
The Servicer agrees to indemnify and hold the Depositors, the
Custodian, the Trustee, the Certificate Insurer and each Holder harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Trustee, the Custodian, the Certificate Insurer and any Holder may sustain in
any way related to the failure of the Servicer to perform its duties and service
the Mortgage Loans in compliance with the terms of this Agreement. The Servicer
shall immediately notify the Depositors, the Trustee, the Custodian, the
Certificate Insurer and each Certificateholder, if a claim is made by a third
party with respect to this Agreement, and the Servicer shall assume (with the
consent of the Trustee and the Certificate Insurer) the defense of any such
claim and advance all expenses in connection therewith, including reasonable
counsel fees, and promptly advance funds to pay, discharge and satisfy any
judgment or decree which may be entered against the Servicer, the Trustee, the
Certificate Insurer and/or any Certificateholder in respect of such claim. The
Trustee may, if necessary, reimburse the Servicer from amounts otherwise
distributable on the Class X Certificates for all amounts advanced by it
pursuant to the preceding sentence except when the claim relates directly to the
failure of the Servicer to service and administer the Mortgage Loans in
compliance with the terms of this Agreement. The Servicer shall have no lien on
the assets of the Trust with respect to amounts advanced pursuant to this
Section 9.01 directly as a result of Servicer's failure to service and
administer the Mortgage Loans in compliance with the terms of this Agreement.
Section 9.02 Merger or Consolidation of the Servicer.
The Servicer will each keep in full effect its existence,
rights and franchises as a corporation and will obtain and preserve its
qualification to do business as a foreign corporation, in each jurisdiction
necessary to protect the validity and enforceability of this Agreement or any of
the Mortgage Loans and to perform its duties under this Agreement.
Any Person into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer or the Representative shall be a party, or
any Person succeeding to the business of the Servicer, shall be an established
mortgage loan servicing institution that has a net worth of at least $15,000,000
and shall be the successor of the Servicer or the Representative, as applicable
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. The Servicer shall send notice of any such merger or
consolidation to the Trustee, the Certificate Insurer and each Rating Agency.
Section 9.03 Limitation on Liability of the Servicer and
Others.
The Servicer and any director, officer, employee or agent of
the Servicer may rely on any document of any kind which it in good faith
reasonably believes to be genuine and to have been adopted or signed by the
proper authorities respecting any matters arising hereunder.
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Subject to the terms of Section 9.01 herein, the Servicer shall have no
obligation to appear with respect to, prosecute or defend, any legal action
which is not incidental to the Servicer's duty to service the Mortgage Loans in
accordance with this Agreement.
Section 9.04 Servicer Not to Resign.
The Servicer shall not assign this Agreement nor resign from
the obligations and duties hereby imposed on it except by mutual consent of the
Servicer, the Representative (if the Representative is not the Servicer), the
Certificate Insurer, the Trustee and the Majority in Aggregate Voting Interest,
or upon the determination that the Servicer's duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by a written Opinion of Counsel (who may be counsel for the
Servicer) to such effect delivered to the Trustee, the Representative (if the
Representative is not the Servicer) and the Certificate Insurer, which Opinion
of Counsel shall be in form and substance acceptable to the Certificate Insurer
and the Trustee. No such resignation shall become effective until a successor
has assumed the Servicer's responsibilities and obligations hereunder in
accordance with Section 9.02. The Servicer shall promptly notify each Rating
Agency promptly of its intention to resign pursuant to this Section 9.04.
Section 9.05 Removal of Servicer.
The Certificate Insurer or the Holders of Certificates
representing a Majority in Aggregate Voting Interest may, with the prior written
consent of the Certificate Insurer, remove the Servicer upon the occurrence of
and continuation of a Servicer Default upon 90 days' prior written notice to the
Servicer. No such removal shall become effective until a successor (other than
the Trustee, unless the Trustee agrees to so act) has assumed the Servicer's
responsibilities and obligations hereunder in accordance with Section 9.02. The
Servicer shall promptly notify each Rating Agency of such removal.
ARTICLE X
SERVICER DEFAULT
Section 10.01 Servicer Default.
(a) In case one or more of the following events (each a
"Servicer Default") by the Servicer shall occur and be continuing:
(i) (A) an Event of Nonpayment (subject to paragraph
(c) below); (B) the failure by the Servicer to make any required
Servicing Advance (other than a Nonrecoverable Advance), to the extent
such failure materially and adversely affects the interests of the
Certificate Insurer or the Certificateholders; (C) the failure by the
Servicer to make a required Advance (other than a Nonrecoverable
Advance) pursuant to the second paragraph of Section 6.08; or (D) any
other failure by the Servicer to remit to the Trustee for the benefit
of any Holders, any payment required to be made under the terms of this
Agreement (other than a Nonrecoverable Advance) which continues
unremedied
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after the date upon which written notice of such failure, requiring the
same to be remedied, shall have been given to a Servicing Officer of
the Servicer by the Certificate Insurer, the Trustee or to a Servicing
Officer of the Servicer and the Trustee by any Holder; or
(ii) the failure by the Servicer duly to observe or
perform, in any material respect, any other covenants, obligations or
agreements of the Servicer as set forth in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Certificate
Insurer or the Trustee or to the Servicer and the Trustee by any Holder
or the Certificate Insurer; or
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Servicer and such decree or order shall have
remained in force, undischarged or unstayed for a period of 60 days; or
(iv) the Servicer shall consent to the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of the Servicer's property; or
(v) the Servicer shall admit in writing its
inability to pay its debts as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations;
(vi) the Servicer shall fail for 60 days to pay, or
bond against, an unappealable, undischarged, unvacated and unstayed
final judgment by a court of competent jurisdiction in an aggregate
amount of $250,000 or more;
(vii) if (a) on the sixth Distribution Date or on any
Distribution Date thereafter prior to the twelfth Distribution Date,
the Loss Coverage Ratio is greater than or equal to 25%, (b) on the
twelfth Distribution Date or on any Distribution Date thereafter prior
to the eighteenth Distribution Date, the Loss Coverage Ratio is greater
than or equal to 40%, (c) on the eighteenth Distribution Date or on any
Distribution Date thereafter prior to the twenty-fourth Distribution
Date, the Loss Coverage Ratio is greater than or equal to 55%, (d) on
the twenty-fourth Distribution Date or on any Distribution Date
thereafter prior to the thirty-sixth Distribution Date, the Loss
Coverage Ratio is greater than or equal to 70%, or (e) on the
thirty-sixth Distribution Date or on any Distribution Date thereafter,
the Loss Coverage Ratio is greater than or equal to 80%.
(b) then, and in each and every such case, so long as such
Servicer Default shall not have been remedied, and in the case of clause (i)
above (except for clause (i)(C)), if such Servicer Default shall not have been
remedied within three Business Days after the Servicer
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has received notice of such Servicer Default, (x) with respect solely to clause
(i)(C) above, if such Advance is not made by 4:00 p.m. New York time on the
second Business Day prior to the applicable Distribution Date the Certificate
Insurer or the Trustee, upon receipt of written notice or discovery by a
Responsible Officer of such failure, shall give immediate telephonic notice of
such failure to a Servicing Officer of the Servicer, and the Trustee shall
notify each Certificateholder and, unless such failure is cured, either by
receipt of payment or receipt of evidence satisfactory to the Certificate
Insurer (e.g., a wire reference number communicated by the sending bank; the
Certificate Insurer shall notify the Trustee, if the Certificate Insurer
receives satisfactory evidence that such funds have been sent), by 12:00 noon
New York time on the following Business Day, the Trustee, or a successor
servicer appointed in accordance with Section 10.02, shall immediately make such
Advance (unless such Advance is a Nonrecoverable Advance) and assume, pursuant
to Section 10.02 hereof, the duties of a successor Servicer; and (y) in the case
of clauses (i)(A), (i)(B), (i)(D), (ii), (iii), (iv), (v), (vi) and (vii) above,
the Majority in Aggregate Voting Interest, subject to the prior written consent
of the Certificate Insurer, which consent may not be unreasonably withheld, or
the Certificate Insurer, by notice in writing to the Servicer and a Responsible
Officer of the Trustee may, in addition to whatever rights they or it may have
at law or equity to damages, including injunctive relief and specific
performance, commence termination of all the rights and obligations of the
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof, as servicer. Upon receipt by the Servicer of a second written notice
(except relative to clause (i)(C) above) from the Majority in Aggregate Voting
Interest, subject to the prior written consent of the Certificate Insurer, which
consent may not be unreasonably withheld, or the Certificate Insurer stating
that they or it intend to terminate the Servicer as a result of such Servicer
Default, all authority and power of the Servicer under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall, subject to Section
10.02, pass to and be vested in the Trustee or its designee and the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments and do or cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, including, but
not limited to, the transfer and endorsement or assignment of the Mortgage Loans
and related documents to the extent required by this Agreement. The Servicer
agrees to cooperate with the Trustee in effecting the termination of the
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee, for the benefit of the Holders of the Certificates,
or its designee for administration by it of all amounts which shall at the time
be credited by the Servicer to the Principal and Interest Account or thereafter
received with respect to the Mortgage Loans.
The Trustee shall not be deemed to have knowledge of a
Servicer Default unless a Responsible Officer thereof has received written
notice thereof.
(c) Notwithstanding anything to the contrary contained in this
Agreement, upon the occurrence of an Event of Nonpayment or a Performance
Default of which the Certificate Insurer has knowledge, the Certificate Insurer
shall promptly notify the Trustee. During any applicable grace period following
receipt of such notice (or immediately following such notice in the case of a
Performance Default), the Trustee and the Certificate Insurer shall cooperate
with each other to determine if the occurrence of such Event of Nonpayment is in
their reasonable business judgment or Performance Default is in the reasonable
business judgment of the Certificate Insurer (x) the result of the acts or
omissions of the Servicer or (y) the result of
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events beyond the control of the Servicer. If the Trustee and the Certificate
Insurer conclude that such Event of Nonpayment or Performance Default is the
result of the latter, Section 10.01(b) above shall not apply, and the Servicer
shall not be terminated, unless and until an Event of Default unrelated to such
Event of Nonpayment or Performance Default has occurred and is continuing,
whether or not the Servicer has cured such Event of Nonpayment or Performance
Default. If the Trustee and the Certificate Insurer conclude that the Event of
Nonpayment or Performance Default is the result of the former, the Certificate
Insurer or the Majority in Aggregate Voting Interest, as the case may be, may
terminate the Servicer in accordance with Section 10.01(b) above, provided that
the Trustee shall have until the 60th day following the date of receipt of
notice of the Event of Nonpayment or Performance Default to either assume the
servicing or appoint a successor servicer pursuant to Section 10.02 hereof.
If the Trustee and the Certificate Insurer cannot agree, and
the basis for such disagreement is not arbitrary or unreasonable, as to the
cause of the Event of Nonpayment or Performance Default, the decision of the
Certificate Insurer shall control; provided, however, that if the Certificate
Insurer decides to terminate the Servicer, the Trustee shall be relieved of its
obligation to assume the servicing or to appoint a successor, which shall be the
exclusive obligation of the Certificate Insurer.
The Trustee shall promptly notify each Rating Agency, the
Certificate Insurer, the Trustee and each Certificateholder, of the occurrence
of a Servicer Default.
Section 10.02 Trustee to Act; Appointment of Successor
Servicer.
On and after the time the Servicer receives a notice of
termination pursuant to Section 10.01, or the Trustee receives the resignation
of the Servicer evidenced by an Opinion of Counsel pursuant to Section 9.04, or
the Servicer is removed as servicer pursuant to this Article X (in which event
the Trustee shall promptly notify each Rating Agency), except as otherwise
provided in Section 10.01, the Trustee shall be the successor in all respects to
the Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof; provided, however, that the Trustee shall
not be liable for any actions of any servicer prior to the Trustee becoming the
Servicer under this Agreement. The Trustee shall be obligated to make advances
pursuant to Sections 5.10, 5.13 and 6.08 unless, and only to the extent the
Trustee determines reasonably and in good faith that, such advances would not be
recoverable pursuant to Section 5.04(ii) or 6.05(d)(vi) and (vii), such
determination to be evidenced by a certification of a Responsible Officer of the
Trustee delivered to the Certificate Insurer; provided that the Trustee shall
not be required to make an advance from its own funds if such advance is
prohibited by law. As compensation therefor, the Trustee, or any successor
servicer appointed pursuant to the following paragraph, shall be entitled to all
funds relating to the Mortgage Loans which the Servicer would have been entitled
to receive from the Principal and Interest Account pursuant to Section 5.04 and
from the Collection Account pursuant to Section 6.05 if the Servicer had
continued to act as servicer hereunder, together with other servicing
compensation in the form of assumption fees, late payment charges or otherwise
as provided in Sections 7.01 and 7.03. In no event shall the assets of the Trust
include, nor the Trustee or any other successor servicer acquire any rights to,
the Representative's Yield.
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Notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, and shall, if it is unable to so act or if the Majority in
Aggregate Voting Interest (with the consent of the Certificate Insurer), or the
Certificate Insurer so request in writing to the Trustee, appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution acceptable to the Certificate Insurer, which acceptance
shall not be unreasonably withheld, that has a net worth of not less than
$15,000,000 and which is approved as a servicer by FNMA and FHLMC as the
successor to the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Any
collections received by the Servicer after removal or resignation shall be
endorsed by it to the Trustee and remitted directly to the Trustee or, at the
direction of the Trustee, to the successor servicer. The compensation of any
successor servicer (including, without limitation, the Trustee) so appointed
shall be the aggregate Servicing Fees, together with other Servicing
Compensation in the form of assumption fees, late payment charges or otherwise.
In the event the Trustee is required to solicit bids, the Trustee shall solicit,
by public announcement, bids from housing and home finance institutions, banks
and mortgage servicing institutions meeting the qualifications set forth above.
Such public announcement shall specify that the successor servicer shall be
entitled to the full amount of the aggregate Servicing Fees as servicing
compensation, together with the other servicing compensation in the form of
assumption fees, late payment charges or otherwise. Within thirty days after any
such public announcement, the Trustee shall negotiate and effect the sale,
transfer and assignment of the servicing rights and responsibilities hereunder
to the qualified party submitting the highest qualifying bid. The Trustee shall
deduct from any sum received by the Trustee from the successor to the Servicer
in respect of such sale, transfer and assignment all costs and expenses of any
public announcement and of any sale, transfer and assignment of the servicing
rights and responsibilities hereunder and the amount of any unreimbursed
Servicing Advances and Advances. After such deductions, the remainder of such
sum shall be paid by the Trustee to the Servicer at the time of such sale,
transfer and assignment to the Servicer's successor. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. The Servicer agrees to cooperate
with the Trustee and any successor servicer in effecting the termination of the
Servicer's servicing responsibilities and rights hereunder and shall promptly
provide the Trustee or such successor servicer, as applicable, all documents and
records reasonably requested by it to enable it to assume the Servicer's
functions hereunder and shall promptly also transfer to the Trustee or such
successor servicer, as applicable, all amounts which then have been or should
have been deposited in the Principal and Interest Account by the Servicer or
which are thereafter received with respect to the Mortgage Loans. Neither the
Trustee nor any other successor servicer shall be held liable by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by (i) the failure of the Servicer to deliver, or any
delay in delivering, cash, documents or records to it, or (ii) restrictions
imposed by any regulatory authority having jurisdiction over the Servicer
hereunder. No appointment of a successor to the Servicer hereunder (other than
the Trustee) shall be effective until the Trustee and the Certificate Insurer
shall have consented thereto. The Trustee shall not resign as servicer until a
successor servicer reasonably acceptable to the Certificate Insurer has been
appointed.
Pending appointment of a successor to the Servicer hereunder,
the Trustee shall act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the Trustee may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree; provided, however, that
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no such compensation shall be in excess of that permitted the Servicer pursuant
to Section 8.03, together with other servicing compensation in the form of
assumption fees, late payment charges or otherwise as provided in this
Agreement. The Servicer, the Trustee, any Custodian and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
Section 10.03 Waiver of Defaults.
The Certificate Insurer or a Majority in Aggregate Voting
Interest may, on behalf of all Certificateholders, and subject to the consent of
the Certificate Insurer, which consent may not be unreasonably withheld, waive
any events permitting removal of the Servicer as servicer pursuant to this
Article X. Upon any waiver of a past default, such default shall cease to exist,
and any Servicer Default arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereto except to the
extent expressly so waived. Notice of any such waiver shall be given by the
Trustee to each Rating Agency.
Section 10.04 Control by Majority in Aggregate Voting
Interest.
The Certificate Insurer, or the Majority in Aggregate Voting
Interest with the consent of the Certificate Insurer, which consent may not be
unreasonably withheld, may direct the time, method and place of conducting any
proceeding relating to the assets of the Trust or the Certificates or for any
remedy available to the Trustee with respect to the Certificates, or exercising
any trust or power conferred on the Trustee with respect to the Certificates or
the assets of the Trust, provided that:
(i) such direction shall not be in conflict with
any rule of law or with this Agreement;
(ii) the Trustee shall have been provided with
indemnity satisfactory to it; and
(iii) the Trustee may take any other action deemed
proper by it which is not inconsistent with such direction; provided,
however, that the Trustee need not take any action which it determines
might involve it in liability or may be unjustly prejudicial to the
Holders not so directing. If inconsistent directions are given, the
Certificate Insurer's directions shall control.
ARTICLE XI
TERMINATION
Section 11.01 Termination.
Subject to Section 11.03, this Agreement shall terminate upon
notice to the Trustee of either: (a) the collection with respect to the last
Mortgage Loan (or Advances of same by the Servicer), or the disposition of all
funds with respect to the last Mortgage Loan and the
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remittance of all funds due hereunder and the payment of all amounts due and
payable to the Certificate Insurer and the Trustee or (b) mutual consent of the
Servicer, the Certificate Insurer and all Certificateholders in writing.
Subject to Section 11.03, the Servicer may, at its option,
elect to terminate this Agreement on any Distribution Date on or following the
first Distribution Date on which the Pool Principal Balance as of the last day
of the related Due Period is less than 10% of the Original Pool Principal
Balance (such Distribution Date being the "Optional Purchase Date") by
purchasing from the Trust on such Distribution Date, all of the outstanding
Mortgage Loans and REO Properties at a price (the " Termination Price") equal to
the fair market value thereof (determined as provided below); provided, that the
Trust shall not sell the Mortgage Loans and REO Properties if the Termination
Price to be received is less than the sum of (x) 100% of the aggregate Principal
Balance of the outstanding Mortgage Loans and REO Properties and (y) accrued and
unpaid interest on each such Mortgage Loan at a rate equal to its respective
Mortgage Interest Rate and (z) any unpaid LIBOR Interest Carryover. In
connection with any such sale, the Servicer shall pay any outstanding and unpaid
fees and expenses of the Trustee and the Certificate Insurer relating to this
Agreement that such parties would otherwise have been entitled to pursuant to
Section 6.05(d).
The fair market value of the outstanding Mortgage Loans and
REO Properties for purposes of this Section 11.01 shall be an amount equal to
the average of the bid prices for such assets taken as a whole, provided to the
Servicer by two Independent, nationally recognized dealers in whole loans
substantially similar to the Mortgage Loans.
Any such sale pursuant to this Section 11.01 shall be
accomplished by depositing into the Collection Account, on the third Business
Day immediately preceding the final Distribution Date on which such purchase is
to be effected, the amount of the Termination Price. On the same day that the
Termination Price is deposited into the Collection Account, any other amounts
then on deposit in the Principal and Interest Account shall be transferred to
the Collection Account pursuant to Section 5.04(ii) for payment to
Certificateholders pursuant to Section 6.05(d) on the final Distribution Date as
specified in the notice to Certificateholders described below; provided, that
the amount of any unpaid Class A-1A LIBOR Interest Carryover or the Class A-1F
LIBOR Interest Carryover, respectively shall not be paid from the Trust REMIC
but shall be treated as paid directly from the purchaser of the Mortgage Loans
to the Class A-1A Certificateholders and the Class A-1F Certificateholders,
respectively. Any amounts received with respect to the Mortgage Loans and REO
Properties subsequent to the last day of the related Due Period shall belong to
the Person purchasing the Mortgage Loans and REO Properties. Promptly upon
receipt of the Termination Price, the Trustee shall release (or cause to be
released) each related Mortgage File to the Person purchasing the Mortgage Loans
and REO Properties as set forth herein.
Notice of any termination, specifying the Distribution Date
upon which this Agreement will terminate shall be given promptly by the Trustee
by letter to the Certificateholders mailed during the month of such final
Distribution Date before the Determination Date in such month, specifying (i)
the Distribution Date upon which final payment of the Certificates will be made
and (ii) the amount of any such final payment. The obligations of the
Certificate Insurer hereunder shall terminate upon the deposit by the Servicer
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with the Trustee for deposit into the Collection Account of a sum sufficient to
purchase all of the Mortgage Loans and REO Properties as set forth above.
Each Holder is required, and hereby agrees, to return to the
Trustee any Certificate with respect to which the Trustee has made the final
distribution due thereon. Any such Certificate as to which the Trustee has made
the final distribution thereon shall be deemed canceled and shall no longer be
outstanding for any purpose of this Agreement, whether or not such Certificate
is ever returned to the Trustee.
In the event that any amount due to any Class A
Certificateholder remains unclaimed, the Servicer shall, at the expense of the
Trust REMIC, cause to be published once, in the eastern edition of The Wall
Street Journal, notice that such money remains unclaimed. If, within the period
then specified in the escheat laws of the State of [New York] after such
publication such amount remains unclaimed, the Class R Certificateholders shall
be entitled to all unclaimed funds, and other assets which remain subject hereto
and the Trustee upon transfer of such funds shall be discharged of any
responsibility for such funds and the Certificateholders shall look to the Class
R Certificateholders for payment.
Section 11.02 Additional Termination Requirements.
In the event the Servicer exercises its purchase option as
provided in Section 11.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been furnished
with an Opinion of Counsel to the effect that the failure of the Trust Fund to
comply with the requirements of this Section 11.02 will not (i) result in the
imposition of taxes on prohibited transactions" of the Trust REMIC as defined in
Section 860F of the Code, or (ii) cause the Trust REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the final Distribution
Date the Trustee shall designate a date as the date of adoption of a
plan of complete liquidation of such REMIC under Section 860F of the
Code and any regulations thereunder and shall specify such date in the
Trust REMIC's final federal income tax returns;
(ii) At or after the date of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Trustee
shall sell all of the assets of the Trust Fund to the Servicer or the
Certificate Insurer for cash;
(iii) At the time of the making of the final payment
on the Certificates, the Trustee shall distribute or credit, or cause
to be distributed or credited (A) to the Class A-1F Certificateholders,
the Class A-1F Principal Balance, plus one month's interest on the
Class A-1F Certificates at the Class A-1F Pass-Through Rate, (B) pro
rata with (A), to the Class A-1A Certificateholders, the Class A-1A
Principal Balance, plus one month's interest on the Class A-1A
Certificates at th Class A-1A Pass-Through Rate, (C) after such
payments to the Class A Certificateholders, to the Class X
Certificateholders, the amount, if any, of received but unpaid Excess
Spread and (D) to the Class R Certificateholders, all cash on hand
after such payment to the Class A and Class X
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Certificateholders (other than cash retained to meet claims), and the
Trust REMIC and the Trust Fund shall terminate at such time; and
(iv) In no event may the final payment on the
Certificates (except to the extent permitted in Section 11.01 with
respect to Certificateholders who fail to surrender their Certificates)
be made after the 89th day from the date of such plan of complete
liquidation.
Section 11.03 Accounting Upon Termination of Servicer.
Upon termination of the Servicer under Article X hereof, the
Servicer shall:
(a) deliver to its successor or, if none shall yet have
been appointed, to the Trustee the funds in any Principal and Interest Account;
(b) deliver to its successor or, if none shall yet have
been appointed, to the Trustee, the Mortgage Files and related documents and
statements held by it hereunder and a Mortgage Loan portfolio computer tape;
(c) deliver to its successor or, if none shall yet have
been appointed, to the Trustee and, upon request, to the Certificateholders, a
full accounting of all funds, including a statement showing the Monthly Payments
collected by it and a statement of monies held in trust by it for the payments
or charges with respect to the Mortgage Loans; and
(d) execute and deliver such instruments and perform all
acts reasonably requested in order to effect the orderly and efficient transfer
of servicing of the Mortgage Loans to its successor and to more fully and
definitively vest in such successor all rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer under this
Agreement.
Section 11.04 Representative's Right to Representative's
Yield Absolute.
The Representative's right to receive the Representative's
Yield with respect to each Mortgage Loan shall be absolute and unconditional,
and shall survive notwithstanding the termination of the rights and obligations
of the Servicer hereunder, the resignation of the Servicer or the termination of
this Agreement. The Representative's right to receive the Representative's Yield
shall not be subject to offset or counterclaim, whether or not such right has
been assigned in whole or in part, notwithstanding any breach of any
representation or warranty of the Representative or any Depositor under this
Agreement or any default by the Representative or any Depositor of any of its
obligations or covenants under this Agreement. The Representative shall have the
right to assign any or all of its rights in and to the Representative's Yield,
without notice to or the consent of any party to this Agreement or any
Certificateholder.
Section 11.05 Termination Upon Loss of REMIC Status.
(a) Following a final determination by the Internal Revenue
Service, or by a court of competent jurisdiction, in either case, from which no
appeal is taken within the permitted time for such appeal, or if any appeal is
taken, following a final determination of such
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appeal from which no further appeal can be taken, to the effect that the Trust
REMIC does not and will no longer qualify as a REMIC pursuant to Section 860D of
the Code (the "Final Determination"), at any time on or after the date which is
30 calendar days following such Final Determination (i) the Majority in Voting
Interest may direct the Trustee on behalf of the Trust REMIC to adopt a "plan of
complete liquidation" (within the meaning of Section 860F(a)(4)(B)(i) of the
Code) and (ii) the Certificate Insurer may notify the Trustee of the Certificate
Insurer's determination to purchase from the Trust Fund all Mortgage Loans and
all property theretofore acquired by foreclosure, deed in lieu of foreclosure,
or otherwise in respect of any Mortgage Loan then remaining in the Trust Fund at
a price equal to the Termination Price. Upon receipt of notice from the
Certificate Insurer, the Trustee shall notify the Class R Certificateholders of
such election to liquidate or such determination to purchase, as the case may be
(the "Termination Notice"). The Holders of a majority of the Percentage Interest
of the Class R Certificates then outstanding may, within 60 days from the date
of receipt of the Termination Notice (the "Purchase Option Period"), at their
option, purchase from the Trust all Mortgage Loans and all property theretofore
acquired by foreclosure, deed in lieu of foreclosure, or otherwise in respect of
any Mortgage Loan then remaining in the Trust Fund at a purchase price equal to
the Termination Price. Any such purchase shall be accomplished in the manner set
forth in Section 11.01.
(b) If, during the Purchase Option Period, the Class R
Certificateholders have not exercised the option described in the immediately
preceding paragraph, then upon the expiration of the Purchase Option Period (i)
in the event that the Majority in Aggregate Voting Interest have given the
Trustee the direction described in clause (a)(i) above, the Trustee shall sell
the Mortgage Loans and distribute the proceeds of the liquidation of the Trust
Fund, each in accordance with the plan of complete liquidation, such that, if so
directed, the liquidation of the Trust Fund, the distribution of the proceeds of
the liquidation and the termination of this Agreement occur no later than the
close of the 60th day, or such later day as the Majority in Aggregate Voting
Interest shall permit or direct in writing, after the expiration of the Purchase
Option Period and (ii) in the event that the Certificate Insurer has given the
Trustee notice of the Certificate Insurer's determination to purchase the Trust
Fund described in clause (a)(ii) preceding, the Certificate Insurer shall so
purchase the Trust Fund within 60 days after the expiration of the Purchase
Option Period.
(c) Following a Final Determination, the Holders of a majority
of the Percentage Interest of the Class R Certificates then outstanding may, at
their option and upon delivery to the Class A and Class X Certificateholders and
the Certificate Insurer of an opinion of nationally recognized tax counsel
selected by the Holders of the Class R Certificates, which opinion shall be
reasonably satisfactory in form and substance to the Majority in Aggregate
Voting Interest and the Certificate Insurer, to the effect that the effect of
the Final Determination is to increase substantially the probability that the
gross income of the Trust REMIC will be subject to federal taxation, purchase
from the Trust Fund all Mortgage Loans and all property theretofore acquired by
foreclosure, deed in lieu of foreclosure, or otherwise in respect of any
Mortgage Loan then remaining in the Trust Fund at a purchase price equal to the
Termination Price. Any such purchase shall be accomplished in the manner set
forth in Section 11.01. The foregoing opinion shall be deemed satisfactory
unless the Majority in Aggregate Voting Interest give the Holders of a majority
of the Percentage Interest of the Class R Certificates notice that such opinion
is not satisfactory within thirty days after receipt of such opinion.
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ARTICLE XII
THE TRUSTEE
Section 12.01 Duties of Trustee.
The Trustee, prior to the occurrence of a Servicer Default and
after the curing of all Servicer Defaults which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. If a Servicer Default has occurred and has not been cured or waived,
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement; provided, however, that the
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Servicer or either Depositor hereunder. If any such instrument
is found not to conform to the requirements of this Agreement, the Trustee shall
notify the Certificate Insurer and request written instructions as to the action
it deems appropriate to have the instrument corrected, and if the instrument is
not so corrected, the Trustee will provide notice thereof to the Certificate
Insurer who shall then direct the Trustee as to the action, if any, to be taken.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of a Servicer Default,
and after the curing of all Servicer Defaults which may have occurred,
the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement;
(ii) The Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible Officer or
other officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Certificate Insurer
or the Class A Certificateholders, relating to the time,
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method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement;
(iv) The Trustee shall not be required to take
notice or be deemed to have notice or knowledge of any Default or
Servicer Default unless a Responsible Officer of the Trustee shall have
received notice thereof. In the absence of receipt of such notice, the
Trustee may conclusively assume that there is no default or Servicer
Default;
(v) The Trustee shall not be required to expend or
risk its own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or the exercise of any of
its rights or powers if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to
perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under this Agreement except during such
time, if any, as the Trustee shall be the successor to, and be vested
with the rights, duties, powers and privileges of, the Servicer in
accordance with the terms of this Agreement;
(vi) Subject to the other provisions of this
Agreement and without limiting the generality of this Section, the
Trustee shall have no duty (A) to see to any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing of any
thereof, (B) to see to any insurance, (C) to see to the payment or
discharge of any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or
levied against, any part of the Trust Fund or the Trust REMIC, (D) to
confirm or verify the contents of any reports or certificates of the
Servicer delivered to the Trustee pursuant to this Agreement believed
by the Trustee to be genuine and to have been signed or presented by
the proper party or parties; and
(vii) The Trustee shall not be deemed a fiduciary for
the Certificate Insurer in its capacity as such, except to the extent
the Certificate Insurer has made an Insured Payment and is thereby
subrogated to the rights of the Certificateholders with respect
thereto.
Section 12.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 12.01:
(i) The Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, Opinion of Counsel, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
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(ii) The Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Agreement or
to institute, conduct or defend by litigation hereunder or in relation
hereto at the request, order or direction of the Certificate Insurer or
any of the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders or the Certificate Insurer,
as applicable, shall have offered to the Trustee reasonable security or
indemnit against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing contained herein shall, however,
relieve the Trustee of the obligation, upon the occurrence of a
Servicer Default (which has not been cured), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's
own affairs;
(iv) The Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of a Servicer Default
hereunder and after the curing of all Defaults which may have occurred,
the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so
by the Certificate Insurer or Holders of Class A Certificates
evidencing not less than 25% of the sum of the Class A-1F Principal
Balance and the Class A-1A Principal Balance; 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 as a condition to taking any such action. The
reasonable expense of every such examination shall be paid by the
Servicer or, if paid by the Trustee, shall be repaid by the Servicer
upon demand from the Servicer's own funds;
(vi) The right of the Trustee to perform any
discretionary act enumerated in this Agreement shall not be construed
as a duty, and the Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of such act;
(vii) The Trustee shall not be required to give any
bond or surety in respect of the execution of the Trust created hereby
or the powers granted hereunder; and
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(viii) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder, including, without
limitation, under Section 2.06 hereof, either directly or by or through
agents or attorney.
(b) Following the Startup Day, the Trustee shall not knowingly
accept any contribution of assets, including substitutions, to the Trust Fund or
the Trust REMIC, unless the Trustee shall have received an Opinion of Counsel to
the effect that the inclusion of such assets in the Trust Fund or the Trust
REMIC will not cause the Trust REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or subject the Trust REMIC to any tax
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
Section 12.03 Trustee Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein and in the Certificates (other
than the certificate of authentication on the Certificates) shall be taken as
the statements of the Depositors, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositors of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Principal and Interest Account by the Servicer. The Trustee shall not be
responsible for the legality or validity of the Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates issued
or intended to be issued hereunder.
Section 12.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Certificates with the same rights it would have if it
were not Trustee, and may otherwise deal with the parties hereto.
Section 12.05 Servicer to Pay Trustee's Fees and Expenses.
The Servicer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, including
the powers and duties described in Section 2.07 hereof, and the Servicer will
pay or reimburse the Trustee upon its request, and, if such amounts are not paid
by the Servicer within thirty (30) days of demand therefor, with interest
thereon at the Trustee's prime rate (which prime rate shall not exceed 10% per
annum), for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Agreement
(including, without limitation, the reasonable fees, expenses and disbursements
of its counsel (including, reasonable compensation of its in-house counsel on an
hourly basis) and of all persons not regularly in its employ, including any
agents, attorneys and accountants of the Trustee, as described in Section
2.07(a) hereof) and such out-of-pocket expenses as may be incurred by the
Trustee in assuming
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servicing responsibilities under Section 10.02 hereof, such reimbursable amounts
to include expenses incurred due to the Servicer's failure to properly discharge
its responsibilities hereunder or to the representations and warranties as to
any Mortgage Loan or Loans being untrue, but not to include general overhead
incurred by the Trustee as a result of becoming successor Servicer (provided
however, prior to incurring such expenses, disbursements and advances ("costs"),
the Trustee will give the Servicer an opportunity to provide such services to
render such costs unnecessary), except any such expense, disbursement or advance
as may arise from its negligence or bad faith, provided that the Trustee shall
have no lien on the Trust Fund or the Trust REMIC for the payment of its fees
and expenses. Failure by the Servicer to pay any such fees or other expenses
shall not relieve the Trustee of its obligation hereunder. The Trustee and any
director, officer, employee or agent of the Trustee shall be indemnified by the
Servicer and held harmless against any loss, liability or expense (i) incurred
in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, and (ii) resulting from any error in any tax or information return
prepared by the Servicer. The obligations of the Servicer under this Section
12.05 shall survive termination of the Servicer and payment of the Certificates,
and shall extend to any co-trustee appointed pursuant to this Article XII. The
compensation due to the Trustee pursuant to this Section 12.05 shall be paid by
the Servicer from it own funds.
Section 12.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be (i) a banking
association organized and doing business under the laws of any state or the
United State of America, (ii) authorized under such laws to exercise corporate
trust powers, including taking title to the Trust Fund asset on behalf of the
Certificateholders, (iii) having a combined capital and surplus of at least
$50,000,000, (iv) whose long-term deposits, if any, shall be rated at least
" " by [Rating Agency] or such lower long-term deposit rating by [Rating Agency]
as may be approved in writing by the Certificate Insurer and [Rating Agency],
and with a long-term deposit rating of at least " " from [Rating Agency] (or
such lower rating which would not cause [Rating Agency] to reduce its then
current ratings of the Class A Certificates), (v) is subject to supervision or
examination by federal or state authority and (vi) is reasonably acceptable to
the Certificate Insurer as evidenced in writing. If such 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 12.06 its combined capital and surplus shall be deemed
to be as set forth in it most recent report of condition so published. In case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall giv notice of such ineligibility
to the Certificate Insurer and shall resign, upon the request of the Certificate
Insurer or the Majority in Aggregate Voting Interest, in the manner and with the
effect specified in Section 12.07.
Section 12.07 Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Servicer, the
Certificate Insurer and to all Certificateholders. Upon receiving such notice of
resignation, the Servicer shall, with the
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consent of the Certificate Insurer, promptly appoint a successor trustee by
written instrument, in duplicate, which Instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to the Certificateholders by the Servicer. Unless a successor
trustee shall have been appointed and have accepted appointment within 60 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 12.06 and shall fail to resign after
written request therefor by the Servicer, the Certificate Insurer or the
Majority in Aggregate Voting Interest, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Servicer may remove the Trustee and shall, within 30 days after such removal,
appoint, subject to the approval of the Certificate Insurer, which approval
shall not be unreasonably withheld, a successor trustee by written instrument,
in duplicate, which instrument shall be delivered to the Trustee so removed and
to the successor trustee. A copy of such instrument shall be delivered to the
Certificateholders by the Servicer.
The Majority in Aggregate Voting Interest or, if the Trustee
fails to perform in accordance with this Agreement, the Certificate Insurer may
remove the Trustee and appoint a successor trustee by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, or by the Certificate Insurer, as the case may be, one complete
set of which instruments shall be delivered to the Servicer, one complete set to
the Trustee so removed and one complete set to the Successor Trustee so
appointed.
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 12.08.
Section 12.08 Successor Trustee.
Any successor trustee appointed as provided in Section 12.07
shall execute, acknowledge and deliver to the Servicer and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee all
Trustee's Mortgage Files and related documents and statement held by it
hereunder, and the Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor trustee all
such rights, powers duties and obligations.
No successor trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 12.06.
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Upon acceptance of appointment by a successor trustee as
provided in this Section, the Servicer shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses shown
in the Certificate Register and to [Rating Agency] and [Rating Agency]. If the
Servicer fails to mail such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Servicer.
Section 12.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted
or with which it may be consolidated or any corporation or national banking
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or national banking association
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation or national banking association shall be
eligible under the provisions of Sectio 12.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 12.10 Appointment of Co-Trustee or Separate
Trustee.
Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee and the Certificate Insurer with written notice to [Rating Agency]
to act as co-trustee or co-trustees, jointly with the Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Fund, and to vest
in such Person or Persons, in such capacity, such title to the Trust Fund, or
any part thereof, and, subject to the other provisions of this Section 12.10,
such powers, duties, obligations, rights and trusts as the Servicer and the
Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
so t do, or in case a Servicer Default shall have occurred and be continuing,
the Trustee alone (with the consent of the Certificate Insurer with written
notice to [Rating Agency]) shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 12.06 hereunder and no notice
to Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 12.08 hereof.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 12.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee or co-trustee at the direction of the
Trustee.
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Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XII. 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.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 12.11 Appointment of Custodians.
The Trustee may, with the consent of the Servicer and the
Certificate Insurer and notice to [Rating Agency], appoint one or more
Custodians to hold all or a portion of the Trustee's Mortgage Files as agent for
the Trustee, by entering into a Custodial Agreement. [Custodian] is initially
appointed Custodian with respect to all Mortgage Loans and, for so long as it
shall be the Custodian hereunder, agrees to comply with the terms of the
provisions of Exhibit N hereto applicable to the duties of the Custodian.
Subject to this Article XII, the Trustee agrees to comply with the terms of each
Custodial Agreement and to enforce the terms and provisions thereof against the
Custodian for the benefit of the Certificateholders and the Certificate Insurer.
The Servicer shall be liable for the fees of any Custodian appointed hereunder.
Each Custodian shall be a depository institution subject to supervision by
federal or state authority and shall be qualified to do business in the
jurisdiction in which it holds any Trustee's Mortgage File. Each Custodial
Agreement may be amended only as provided in Section 13.02.
Section 12.12 Protection of Trust Fund.
(a) The Trustee will hold the Trust Fund in trust for
the benefit of the Holders and the Certificate Insurer and, upon request of the
Certificate Insurer, or, with the consent of the Certificate Insurer, at the
request of the Depositors, will from time to time execute and deliver all such
supplements and amendments hereto pursuant to Section 13.02 hereof and all
instruments of further assurance and other instruments, and will take such other
action upon such request to:
(i) more effectively hold in trust all or any
portion of the Trust Fund;
(ii) perfect, publish notice of, or protect the
validity of any grant made or to be made by this Agreement;
(iii) enforce any of the Mortgage Loans; or
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(iv) preserve and defend title to the Trust Fund
and the rights of the Trustee, and the ownership Interests of the
Holders represented thereby, in such Trust Fund against the claims of
all Persons and parties.
The Trustee shall send copies of any request received from the
Certificate Insurer or the Depositors to take any action pursuant to this
Section 12.12 to the others.
(b) Subject to Article X hereof, the Trustee shall have the
power to enforce, and shall enforce the obligations of the other parties to this
Agreement and of the Certificate Insurer, by action, suit or proceeding at law
or equity, and shall also have the power to enjoin, by action or suit in equity,
any acts or occurrences which may be unlawful or in violation of the rights of
the Holders; provided, however, that nothing in this Section 12.12 shall require
any action by the Trustee unless the Trustee shall first (i) have been furnished
indemnity satisfactory to it and second (ii) when required by this Agreement,
have been requested to take such action by the Majority in Aggregate Voting
Interest, the Certificate Insurer or the Depositors in accordance with the terms
of this Agreement.
(c) The Trustee shall execute any instrument required pursuant
to this Section so long as such Instrument does not conflict with this Agreement
or with the Trustee's fiduciary duties.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 The Certificate Insurer.
Any right conferred to the Certificate Insurer hereunder shall
be suspended during any period in which the Certificate Insurer is in default in
its payment obligations under the Certificate Insurance Policy, and its rights
during such period shall vest in the Majority in Aggregate Voting Interest. At
such time as the Certificates are no longer outstanding, and no amounts owed to
the Certificate Insurer hereunder remain unpaid and the Certificate Insurance
Policy has expired in accordanc with its terms, the Certificate Insurer's rights
hereunder shall terminate.
Section 13.02 Amendment.
(a) This Agreement may be amended from time to time by the
Depositors, the Trustee and the Servicer by written agreement, upon the prior
written consent of the Certificate Insurer, without notice to or consent of the
Certificateholders, to cure any ambiguity or mistake, to correct or supplement
any provisions herein, to comply with any changes in the Code, or to make any
other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsisten with the provisions of this Agreement,
or any Custodial Agreement; provided, however, that such action shall not
adversely affect the interests of any Certificateholder or the Certificate
Insurer, as evidenced by an Opinion of Counsel or written notification from each
Rating Agency to the effect that such amendment will not cause such Rating
Agency to lower or withdraw the then current ratings on the Certificates, at the
expense
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of the party requesting the change, delivered to the Certificate Insurer, the
Trustee and the Depositors; and provided, further, that no such amendment shall
reduce in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or change the rights or
obligations of any other party hereto without the consent of such party. The
Trustee shall give prompt written notice to each Rating Agency of any amendment
made pursuant to this Section 13.02(a).
(b) This Agreement may be amended from time to time by the
Depositors, the Trustee and the Servicer, with the consent of the Certificate
Insurer, the Majority in Aggregate Voting Interest and the Holders of the
majority of the Percentage Interest in the Class R Certificates for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided, however, that no suc amendment shall reduce in any manner the
amount of, or delay the timing of, any payments which are required to be
distributed on any Class A Certificate without the consent of the Holder of such
Certificate or reduce the percentage for each Class of Certificates the Holders
of which are required to consent to any such amendment without the consent of
the Holders of 100% of each Class of Certificates affected thereby. Prior notice
of any proposed amendment pursuant to this Section 13.02(b) shall be given to
each Rating Agency.
(c) It shall not be necessary for the consent of Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof.
(d) Notwithstanding any contrary provision of this Agreement,
the Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Servicer, the Representative, any
Depositor, the Certificate Insurer or the Trustee in accordance with such
amendment will not result in the imposition of a tax on the Trust REMIC, will
not cause the Trust REMIC to fail to qualify as a REMIC or will not cause the
portion of the Trust Fund exclusive of the Trust REMIC to fail to qualify as a
grantor trust at any time that any Certificate is outstanding. No amendment
shall have the effect of varying the latest possible maturity, principal amount
or interest rate of the Trust unless the Trustee shall have received an Opinion
of Counsel that the amendment will not cause the regular interest to lack fixed
terms within the meaning of the REMIC provisions.
(e) An amendment or supplement to the original issue discount
legend shall not be an amendment or supplement for purposes of this Article 13.
Section 13.03 Recordation of Agreement.
To the extent permitted by applicable law, this Agreement, or
a memorandum thereof if permitted under applicable law, is subject to
recordation in all appropriate public offices for real property records in all
of the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Servicer at the
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Holders' or Certificate Insurer' expense on direction and at the
expense of the Majority in Aggregate Voting Interest or the Certificate Insurer
requesting such recordation, but only when accompanied by an Opinion of Counsel
to the effect that such recordation materially and beneficially affects the
interests of the Certificateholders or the Certificate Insurer or is necessary
for the administration or servicing of the Mortgage Loans.
Section 13.04 Duration of Agreement.
This Agreement shall continue in existence and effect until
terminated as herein provided.
Section 13.05 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS APPLIES TO
THIS AGREEMENT).
Section 13.06 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by overnight mail, certified mail or registered mail, postage prepaid,
to (i) in the case of the Servicer and the Representative, EquiCredit
Corporation of America, 00000 Xxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000-0000 Attention: General Counsel, or such other addresses as may hereafter
be furnished to the Trustee in writing by the Representative and the Servicer,
(ii) in the case of each Depositor, c/o EquiCredit Corporation of America, 00000
Xxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000-0000 Attention: General
Counsel, or such other addresses as may hereafter be furnished to the Trustee in
writing by such Depositor, (iii) in the case of the Certificateholders, as set
forth in the Certificate Register, (iv) in the case of the Trustee, [Trustee],
__________________, Attention: _____________________, (v) in the case of [Rating
Agency], __________________, Attention: _____________________, (vi) in the case
of [Rating Agency], __________________, Attention: _____________________ and
(vii) in the case of the Certificate Insurer, [Insurer], __________________,
Attention: _____________________. Any such notices shall be deemed to be
effective with respect to any party hereto upon the receipt of such notice by
such party, except that notices to the Certificateholders shall be effective
upon mailing or personal delivery.
Section 13.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be held invalid for any reason whatsoever, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement.
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Section 13.08 No Partnership.
Except for federal, state and local income, franchise or
similar tax purposes, nothing herein contained shall be deemed or construed to
create a co-partnership or joint venture between the parties hereto and the
services of the Servicer shall be rendered as an independent contractor and not
as agent for the Certificateholders.
Section 13.09 Counterparts.
This Agreement may be executed in one or more counterparts and
by the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement.
Section 13.10 Successors and Assigns.
This Agreement shall inure to the benefit of and be binding
upon the Representative, the Servicer, the Depositors, the Trustee and the
Certificateholders and their respective successors and assigns.
Section 13.11 Headings.
The headings of the various Sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
Section 13.12 Limitation of Liability of Trustee.
Notwithstanding anything contained herein to the contrary,
this Agreement has been executed by [Trustee] not in its individual capacity but
solely as Trustee and in no event shall [Trustee] have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Depositors hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Trust Fund.
Section 13.13 Limitations on Rights of Others.
The provisions of this Agreement are solely for the benefit of
the Depositors, the Servicer, the Trustee, the Certificateholders and the
Originators and nothing in this Agreement whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the assets of the Trust or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein. The Certificate Insurer is
an intended third party beneficiary of this Agreement.
Section 13.14 No Petition.
The Servicer and the Trustee by entering into this Agreement
hereby covenants and agrees that it shall not, prior to the date which is one
year and one day after the termination of this Agreement pursuant to Article XI
hereof, acquiesce, petition or otherwise invoke or cause the Depositors to
invoke the process of any court or government authority for the purpose of
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commencing or sustaining a case against the Depositors under any federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of each of the Depositors or any substantial part of its respective property, or
ordering the winding up or liquidation of the affairs of each of the Depositors.
Section 13.15 Third Party Beneficiary.
This Agreement shall inure to the benefit of and be binding
upon the parties hereto and, in addition, shall inure to the benefit of
Certificateholders and, to the extent provided herein, the Certificate Insurer
and their respective successors and permitted assigns. Except as otherwise
provided in this Agreement, no other Person shall have any right or obligation
hereunder.
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IN WITNESS WHEREOF, the Servicer, the Trustee and the
Depositors have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
[TRUSTEE],
as Trustee
By:
------------------------------------
Name:
Title:
EQUICREDIT CORPORATION OF AMERICA,
as Representative and Servicer
By:
------------------------------------
Name:
Title:
THE DEPOSITORS:
EQCC RECEIVABLES CORPORATION
By:
------------------------------------
Name:
Title:
EQCC ASSET BACKED CORPORATION
By:
------------------------------------
Name:
Title:
000
XXXXX XX XXXXXXX )
) ss.:
COUNTY OF JACKSONVILLE )
On the ____ day of _____, 199_ before me, a Notary Public in
and for the State of Florida, personally appeared _________, known to me to be
the ________ of EQCC Receivables Corporation, the corporation that executed the
within instrument and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------------
Notary Public
000
XXXXX XX XXXXXXX )
) ss.:
COUNTY OF JACKSONVILLE )
On the ____ day of _____, 199_ before me, a Notary Public in
and for the State of Florida, personally appeared _______, known to me to be the
_______ of EQCC Asset Backed Corporation, the corporation that executed the
within instrument and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
000
XXXXX XX XXXXXXX )
) ss.:
COUNTY OF JACKSONVILLE )
On the ____ day of _____, 199_ before me, a Notary Public in
and for the State of Florida, personally appeared __________, known to me to be
the __________ of EquiCredit Corporation of America, a corporation that executed
the within instrument and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------
Notary Public
132
STATE OF )
--------------
) ss.:
COUNTY OF )
-------------
On the ____ day of _____, 199_ before me, a Notary Public in
and for the State of New York, personally appeared _______, known to me to be
_______ of [Trustee], a national banking association that executed the within
instrument and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------
Notary Public
133
EXHIBIT A
CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items (copies to the extent the originals have
been delivered to the Depositors pursuant to Section 2.04 of the Pooling and
Servicing Agreement), all of which shall be available for inspection by the
Trustee and the Custodian, to the extent required by applicable laws:
1. The original Mortgage Note, with any intervening endorsements,
endorsed*/ "Pay to the order of [Trustee], as Trustee under
the Pooling and Servicing Agreement dated as of ______, 199_,
Series 199_-_, without recourse" and signed, by facsimile or
manual signature, in the name of the Originator that
transferred such Mortgage Loan to the applicable Depositor
pursuant to the Transfer Agreement by a Responsible Officer,
with all prior and intervening endorsements showing a complete
chain of endorsement from the originator to such Originator,
if the Originator from whom the Depositor acquired such
Mortgage Loan was not the originator and, with respect to
manufactured housing units, the certificate of title, if any;
2. Either: (i) the original Mortgage, with evidence of recording
thereon (and, in the case of a Mortgaged Property held in an
Illinois Land Trust, signed by the trustee of such Illinois
Land Trust), (ii) a copy of the Mortgage certified as a true
copy by a Responsible Officer of the applicable Originator
that transferred such Mortgage Loan to the applicable
Depositor pursuant to the Transfer Agreement (provided,
however, that such Responsible Officer may complete one or
more blanket certificates attaching copies of one or more
Mortgages relating thereto) or by the closing attorney, or by
an officer of the title insurer or agent of the title insurer
which issued the related title insurance policy, or commitment
therefor, if the original has been transmitted for recording
until such time as the original is returned by the public
recording office or (iii) a copy of the Mortgage certified by
the public recording office in those instances where the
original recorded Mortgage has been lost;
3. Except for a Mortgaged Property held in an Illinois Land
Trust, either (i) the original Assignment of Mortgage from the
Originator that transferred such Mortgage Loan to the
applicable Depositor pursuant to the Transfer Agreement to*/
[Trustee], as Trustee under the Pooling and Servicing
Agreement dated as of ______, 199_: or in blank pursuant to
the Transfer Agreement;
4. The original policy of title insurance or a true copy thereof
or, if such policy has not yet been delivered by the insurer,
the commitment or binder to issue same.
X-0
000
0. All intervening assignments, if any, showing a complete chain
of assignment from the originator to the applicable
Originator, including any recorded warehousing assignments,
with evidence of recording thereon, certified by a Responsible
Officer of the applicable Originator as a true copy of the
original of such intervening assignments;
6. Originals of all assumption and modification agreements, if
any or a copy certified as a true copy by a Responsible
Officer of the applicable Originator.
7. Except for a Mortgaged Property held in an Illinois Land
Trust, either: (i) originals of all intervening assignments,
if any showing a complete chain of title from the originator
to the applicable Originator, including any recorded
warehousing assignments, with evidence of recording thereon,
or, (ii) if the original intervening assignments have not yet
been returned from the recording office, a copy of the
originals of such intervening assignments together with a
certificate of a Responsible Officer of the Originator or the
closing attorney or an officer of the title insurer which
issued the related title insurance policy, or commitment
therefor, or its duly authorized agent certifying that the
copy is a true copy of the original of such intervening
assignments or (iii) a copy of the intervening assignment
certified by the public recording office in those instances
where the original recorded intervening assignment has been
lost.
8. If the Mortgaged Property is held in an Illinois Land Trust,
the original Assignment of Beneficial Interest, or, if the
trustee of such Illinois Land Trust retains such original
Assignment of Beneficial Interest, a certified true copy of
such Assignment of Beneficial Interest so certified by such
trustee;
9. If the Mortgaged Property is held in an Illinois Land Trust,
an original Reassignment of Assignment of Beneficial Interest
from the Originator to*/ [Trustee], as Trustee under the
Pooling and Servicing Agreement dated as of ______, 199_,
Series 199_-_ or in blank. In the event that the Mortgage Loan
was acquired by the applicable Originator in a merger, the
Reassignment of the Assignment of Beneficial Interest must be
by "[Originator], successor by merger to "[name of
predecessor]"; and in the event that the Mortgage Loan was
acquired or originated by such Originator while doing business
under another name, the Reassignment of Assignment of
Beneficial Interest must be by "[Originator], formerly known
as [previous name]";
10. If the Mortgaged Property is held in an Illinois Land Trust,
originals of all intervening Reassignments of Assignment of
Beneficial Interest, showing a complete chain of assignment
from the beneficiaries of such Illinois
---------------
*/ Upon the occurrence of the Recordation Trigger, the Servicer shall
prompty cause each Assignment of Mortgage to be recorded in the applicable
recording office in the name of the Trustee.
A-2
135
Land Trust to the applicable Originator of all of such
beneficiaries' right, title, and interest in, to, and under
the trust agreement with respect to such Illinois Land Trust;
and
11. If the Mortgaged Property is held in an Illinois Land Trust,
(A) a certified copy of the instrument creating the Illinois
Land Trust, (B) a copy of the UCC-1 Financing Statement
evidencing the assignment of the Mortgagor's beneficial
interest in the Illinois Land Trust, with evidence of filing
thereon, and (C) the original personal guaranty of the
Mortgage Note, executed by each beneficiary of the Illinois
Land Trust.
12. Mortgage Loan closing statement and any other truth-in-lending
or real estate settlement procedure forms required by law.
13. Residential loan application.
14. Verification of employment and income, and tax returns, if
any.
15. Credit report on the mortgagor.
16. The full appraisal made in connection with the origination of
the related Mortgage Loan with photographs of the subject
property and of comparable properties, constituting evidence
sufficient to indicate that the Mortgaged Property relates to
a Residential Dwelling.
17. Copy of the First Lien, if in the Servicer's file.
18. All other papers and records developed or originated by the
applicable Depositor or others, required to document the
Mortgage Loan or to service the Mortgage Loan.*/
---------------
*/ Upon the occurrence of the Recordation Trigger, the Servicer shall
prompty cause each Assignment of Mortgage to be recorded in the applicable
recording office in the name of the Trustee.
A-3
136
EXHIBIT B-1
[FORM OF CLASS A-1F CERTIFICATE]
[Form of Face of Certificate]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
EQCC HOME EQUITY LOAN ASSET BACKED CERTIFICATES
Series 199_-_, Class A-1F Original Class A-1F Principal Balance:
No. A-1F-__ $_________________
Class A-1F Pass-Through Rate: Original Dollar Amount as of the Cut-off Date
Adjustable Represented by this Certificate:
$___________________
Cut-off Date: ______, 199_ Percentage Interest of this Certificate:
______%
First Payment Date: Original Pool Principal Balance of Fixed Rate Group:
______, 199_ $____________________
Closing Date: Latest Maturity Date:
______, 199_ ____________________
CUSIP:___________ Common Code:_______________
ISIN:_____________
This certifies that _________________________ is the
registered owner of the percentage interest (the "Percentage Interest")
evidenced by this Certificate in distributions to the Holders of the Class A-1F
Certificates with respect to certain fixed-rate residential first and second
mortgage loans (the "Fixed Rate Group") which comprise part of a Trust Fund
consisting primarily of certain residential fixed-rate and adjustable-rate first
and second mortgage loans (the "Mortgage Loans") master serviced by EquiCredit
Corporation of America (hereinafter called the "Servicer", in its capacity as
Servicer, and "Representative", in its capacity as Representative, which terms
include any successor entity under the Agreement referred to below). The Fixed
Rate Group was originated or acquired by the Representative and certain of its
wholly-owned subsidiaries. The Fixed Rate Group will be serviced by the Servicer
pursuant
B-1-1
137
to the terms and conditions of that certain Pooling and Servicing Agreement
dated as of ______, 199_ (the "Agreement") by and among the Representative, the
Servicer, EQCC Receivables Corporation, EQCC Asset Backed Corporation and
[Trustee], as trustee (the "Trustee"), certain of the pertinent provisions of
which are set forth herein. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the holder of this Certificate by virtue of the
acceptance hereof assents and by which such holder is bound.
On each Payment Date, commencing on ______, 199_, the Trustee
shall distribute to the Person in whose name this Certificate is registered on
the last calendar day of the month preceding the month in which such Payment
Date occurs (the "Record Date"), an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to Holders of the Class A-1F Certificates on such Payment Date
pursuant to Section 6.05 of the Agreement. The Class A-1F Pass-Through Rate is
adjustable in accordance with the provisions of the Agreement.
Solely for U.S. federal income tax purposes, this Certificate
represents a beneficial interest in a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined, respectively, in
Section 860G and 860D of the Internal Revenue Code of 1986, as amended and (ii)
the right to receive payments in respect of Class A-1F LIBOR Interest
Carryovers.
B-1-2
138
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has
caused this Certificate to be duly executed as of the date set forth below.
EQCC HOME EQUITY LOAN TRUST 199_-_
By: [Trustee],
as Trustee
By:
----------------------------------
Authorized Signatory
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
By: [Trustee],
as Trustee
By:
----------------------------------
Authorized Signatory
B-1-3
139
EXHIBIT B-2
[FORM OF CLASS A-1A CERTIFICATE]
[Form of Face of Certificate]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
EQCC HOME EQUITY LOAN ASSET BACKED CERTIFICATES
Series 199_-_, Class A-1A Original Class A-1A Principal Balance:
No. A-1A-__ $_________________
Class A-1A Pass-Through Rate: Original Dollar Amount as of the Cut-off Date
Adjustable Represented by this Certificate:
$_________________
Cut-off Date: ______, 199_ Percentage Interest of this Certificate:
_____%
First Payment Date: Original Pool Principal Balance of Adjustable Rate
______, 199_ Group: $____________________
Closing Date: Latest Maturity Date:
______, 199_ ____________________
CUSIP:___________ Common Code:_______________
ISIN:_____________
This certifies that _________________________ is the
registered owner of the percentage interest (the "Percentage Interest")
evidenced by this Certificate in distributions to the Holders of the Class A-1A
Certificates with respect to certain adjustable-rate residential first mortgage
loans (the "Adjustable Rate Group") which comprise part of a Trust Fund
consisting primarily of certain residential fixed-rate and adjustable-rate first
and second mortgage loans (the "Mortgage Loans") master serviced by EquiCredit
Corporation of America (hereinafter called the "Servicer", in its capacity as
Servicer, and "Representative", in its capacity as Representative, which terms
include any successor entity under the Agreement referred to below). The
Adjustable Rate Group was originated or acquired by the Representative and
certain of its wholly-owned subsidiaries. The Adjustable Rate Group will be
serviced by the
B-2-1
140
Servicer pursuant to the terms and conditions of that certain Pooling and
Servicing Agreement dated as of ______, 199_ (the "Agreement") by and among the
Representative, the Servicer, EQCC Receivables Corporation, EQCC Asset Backed
Corporation and [Trustee], as trustee (the "Trustee"), certain of the pertinent
provisions of which are set forth herein. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the holder of this Certificate
by virtue of the acceptance hereof assents and by which such holder is bound.
On each Payment Date, commencing on ______, 199_, the Trustee
shall distribute to the Person in whose name this Certificate is registered on
the last calendar day of the month preceding the month in which such Payment
Date occurs (the "Record Date"), an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to Holders of the Class A-1A Certificates on such Payment Date
pursuant to Section 6.05 of the Agreement. The Class A-1A Pass-Through Rate is
adjustable in accordance with the provisions of the Agreement.
Solely for U.S. federal income tax purposes, this Certificate
represents (i) a beneficial interest in a "regular interest" in a "real estate
mortgage investment conduit" as those terms are defined, respectively, in
Section 860G and 860D of the Internal Revenue Code of 1986, as amended, and (ii)
the right to receive payments in respect of Class A-1A LIBOR Interest
Carryovers.
B-2-2
141
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has
caused this Certificate to be duly executed as of the date set forth below.
EQCC HOME EQUITY LOAN TRUST 199_-_
By: [Trustee],
as Trustee
By:
---------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
By: [Trustee],
as Trustee
By:
---------------------------------
Authorized Signatory
B-2-3
142
EXHIBIT B-3
[FORM OF CLASS X CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAW OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 4.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES,
XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS IN WHICH SUCH
PLANS, ACCOUNTS OR ARRANGEMENTS ARE INVESTED, THAT IS SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS
OF ANY SUBSEQUENT ENACTMENTS) (EACH, AN "ERISA PLAN"), UNLESS THE TRANSFEREE
PROVIDES THE SERVICER AND TRUSTEE WITH (1) A CERTIFICATION OF FACTS AND AN
OPINION OF COUNSEL SATISFACTORY TO THE SERVICER AND THE TRUSTEE THAT THE
PURCHASE OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH ERISA PLAN IS PERMISSIBLE
UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT
SUBJECT THE SERVICER OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE AGREEMENT OR (2) IF SUCH TRANSFEREE IS AN INSURANCE
COMPANY, A CERTIFICATION OF FACTS WITH RESPECT TO CERTAIN MATTERS SET FORTH IN
THE AGREEMENT.
EQCC HOME EQUITY LOAN ASSET BACKED CERTIFICATES
Series 199_-_, Class X Percentage Interest of this Certificate:
No. X-__ _____%
Cut-off Date: ______, 199_ Original Pool Principal Balance:
$_____________________
First Payment Date: Closing Date:
______, 199_ ______, 199_
B-3-1
143
This certifies that _________________________ is the
registered owner of the percentage interest (the "Percentage Interest")
evidenced by this Certificate in certain monthly distributions with respect to a
Trust Fund consisting primarily of residential fixed-rate and adjustable-rate
first and second mortgage loans (the "Mortgage Loans") master serviced by
EquiCredit Corporation of America (hereinafter called the "Servicer", in its
capacity as Servicer, and "Representative", in its capacity as Representative,
which terms include any successor entity under the Agreement referred to below).
The Mortgage Loans were originated or acquired by the Representative and certain
of its wholly-owned subsidiaries. The Mortgage Loans will be serviced by the
Servicer pursuant to the terms and conditions of that certain Pooling and
Servicing Agreement dated as of ______, 199_ (the "Agreement") by and among the
Representative, the Servicer, EQCC Receivables Corporation, EQCC Asset Backed
Corporation and [Trustee], as trustee (the "Trustee"), certain of the pertinent
provisions of which are set forth herein. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the holder of this Certificate
by virtue of the acceptance hereof assents and by which such holder is bound.
On each Payment Date, commencing on ______, 199_, the Trustee
shall distribute to the Person in whose name this Certificate is registered on
the last calendar day of the month preceding the month in which such Payment
Date occurs (the "Record Date"), an amount equal to the product of the
Percentage Interest evidenced by this Certificate and any amount required to be
distributed to the Holders of the Class X Certificates on such Remittance Date
pursuant to Section 6.05 and 6.09 of the Agreement.
No transfer of any Class X Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. In the event that a transfer is to be made
without such registration or qualification, (a) the Trustee shall require the
transferee to execute an investment letter, which investment letter shall not be
an expense of the Depositors, the Servicer or the Trustee and (b) in the event
that such a transfer is not made pursuant to Rule 144A under the Act, the
Depositors may direct the Trustee to require an Opinion of Counsel satisfactory
to the Trustee and the Depositors that such transfer may be made without such
registration or qualification, which Opinion of Counsel shall not be an expense
of the Depositors, the Trustee or the Servicer. Neither the Depositors nor the
Trustee is obligated to register or qualify any of the Class X Certificates
under the 1933 Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any such Certificateholder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Depositors, the Certificate Insurer and the Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws. In connection with any such
transfer, the Servicer and the Trustee will also require either (i) a
certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Servicer and the Trustee that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the
Servicer or the Trustee to be deemed a fiduciary of an
B-3-2
144
ERISA Plan or result in the imposition of an excise tax under Section 4975 of
the Code, or (ii) (a) a representation letter, in the form as described in the
Agreement, stating that the transferee is not an ERISA Plan and is not acting on
behalf of an ERISA Plan or using the assets of an ERISA Plan to effect such
purchase or (b) if such transferee is an insurance company, a certification of
facts with respect to certain matters set forth in the Agreement.
Solely for U.S. federal income tax purposes, this Certificate
represents (i) a "regular interest" in a "real estate mortgage investment
conduit" as those terms are defined, respectively, in Section 860G and 860D of
the Internal Revenue Code of 1986, as amended and (ii) the rights under the
Spread Account set forth in the Agreement subject to the obligations to make
payments to the Class A-1A and Class A-1F Certificates in respect of Class A-1A
LIBOR Interest Carryovers and Class A-1F LIBOR Interest Carryovers,
respectively.
B-3-3
145
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has
caused this Certificate to be duly executed as of the date set forth below.
EQCC HOME EQUITY LOAN TRUST 199_-_
By: [Trustee],
as Trustee
By:
--------------------------------
Authorized Signatory
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
By: [Trustee],
as Trustee
By:
--------------------------------
Authorized Signatory
B-3-4
146
EXHIBIT B-4
[FORM OF CLASS R CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A AND CLASS X
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A DISQUALIFIED NON-U.S.
PERSON OR A DISQUALIFIED ORGANIZATION OR AGENT THEREOF.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
THIS CLASS R CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933 (THE "1933 ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 4.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND
ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS IN
WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE INVESTED, THAT IS SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE CODE (OR COMPARABLE
PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) (EACH, AN "ERISA PLAN").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE DEPOSITORS AND
THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT A DISQUALIFIED ORGANIZATION OR AGENT
THEREOF, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL
CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR
A DISQUALIFIED NON-UNITED STATES PERSON OR AN AGENT THEREOF, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT
B-4-1
147
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. A TRANSFEROR
OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT WHO ACQUIRES THIS
CERTIFICATE ON BEHALF OF A DISQUALIFIED ORGANIZATION MAY BE SUBJECT TO A
SIGNIFICANT FEDERAL INCOME TAX UNLESS IT PROPERLY RECEIVES THE TRANSFER
AFFIDAVIT AND AGREEMENT DESCRIBED IN SECTION 4.02(d) OF THE AGREEMENT. THIS
CERTIFICATE MAY BE A "NON-ECONOMIC RESIDUAL INTEREST," CERTAIN TRANSFERS OF
WHICH MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. EACH HOLDER OF THIS
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
EQCC HOME EQUITY LOAN ASSET BACKED CERTIFICATES
Series 199_-_, Class R Percentage Interest of this Certificate:
No. R-__ _____%
Cut-off Date: ______, 199_ Original Pool Principal Balance:
$___________________
First Payment Date: Closing Date:
______, 199_ ______, 199_
This certifies that _________________________ is the
registered owner of the interest (the "Percentage Interest") evidenced by this
Certificate in certain distributions with respect to a Trust Fund consisting
primarily of residential fixed-rate and adjustable-rate first and second
mortgage loans (the "Mortgage Loans") master serviced by EquiCredit Corporation
of America (hereinafter called the "Servicer", in its capacity as Servicer, and
"Representative", in its capacity as Representative, which terms include any
successor entity under the Agreement referred to below). The Mortgage Loans were
originated or acquired by the Representative and certain of its wholly-owned
subsidiaries. The Mortgage Loans will be serviced by the Servicer pursuant to
the terms and conditions of that certain Pooling and Servicing Agreement dated
as of ______, 199_ (the "Agreement") by and among the Representative, the
Servicer, EQCC Receivables Corporation, EQCC Asset Backed Corporation and
[Trustee], as trustee (the "Trustee"), certain of the pertinent provisions of
which are set forth herein. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the holder of this Certificate by virtue of the
acceptance hereof assents and by which such holder is bound.
On each Payment Date, commencing on ______, 199_, the Trustee
shall distribute to the Person in whose name this Certificate is registered on
the last calendar day of the month preceding the month in which such Payment
Date occurs (the "Record Date"), an amount equal to the product of the
Percentage Interest evidenced by this Certificate and any amount required to be
distributed to the Holders of the Class R Certificates on such Remittance Date
pursuant to Section 6.05 of the Agreement.
B-4-2
148
Each Holder of this Certificate will be deemed to have agreed
to be bound by the restrictions set forth in the Agreement to the effect that
(i) each person holding or acquiring any Ownership Interest in this Certificate
must be a Permitted Transferee, (ii) the transfer of any Ownership Interest in
this Certificate will be conditioned upon the delivery to the Trustee of, among
other things, an affidavit to the effect that it is a Permitted Transferee and
(iii) any attempted or purported transfer of any Ownership Interest in this
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee. The Percentage Interest
this Certificate is set forth above. Notwithstanding the fact that this
Certificate has no principal balance, this Certificate will remain outstanding
under the Agreement and the Holder hereof may have additional obligations as set
forth in the Agreement.
No transfer of any Class R Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. In the event that a transfer is to be made
without such registration or qualification, (a) the Trustee shall require the
transferee to execute an investment letter, which investment letter shall not be
an expense of the Depositors, the Servicer or the Trustee and (b) in the event
that such a transfer is not made pursuant to Rule 144A under the Act, the
Depositors may direct the Trustee to require an Opinion of Counsel satisfactory
to the Trustee and the Depositors that such transfer may be made without such
registration or qualification, which Opinion of Counsel shall not be an expense
of the Depositors, the Trustee or the Servicer. Neither the Depositors nor the
Trustee is obligated to register or qualify any of the Class R Certificates
under the 1933 Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any such Certificateholder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Depositors, the Certificate Insurer and the Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws. In connection with any such
transfer, the Trustee will also require a representation letter, in the form as
described in the Agreement, stating that the transferee is not an ERISA Plan and
is not acting on behalf of an ERISA Plan or using the assets of an ERISA Plan to
effect such purchase.
B-4-3
149
IN WITNESS WHEREOF, the Trustee on behalf of the Trust has
caused this Certificate to be duly executed as of the date set forth below.
EQCC HOME EQUITY LOAN TRUST 199_-_
By: [Trustee],
as Trustee
By:
--------------------------------
Authorized Signatory
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
By: [Trustee],
as Trustee
By:
--------------------------------
Authorized Signatory
B-4-4
150
EXHIBIT B-5
[FORM OF REVERSE OF CERTIFICATE]
Distributions on this Certificate will be made by the Trustee
by wire transfer of immediately available funds to the account of the Person
entitled thereto as shall appear on the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
thereon, at a bank or other entity having appropriate facilities therefor, if
such Person shall own of record Class A Certificates of the same Class which
have denominations aggregating at least $1,000,000 appearing in the Certificate
Register and in all cases with respect to the Class X and Class R Certificates,
and shall have so notified the Trustee at least five business days prior to the
related Record Date, or by check mailed to the address of such Person appearing
in the Certificate Register.
Upon receiving the final distribution hereon, the Holder
hereof is required to send this Certificate to the Trustee. The Agreement
provides that, in any event, upon the making of the final distribution due on
this Certificate, this Certificate shall be deemed cancelled for all purposes
under the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as EQCC Home Equity Loan Asset Backed Certificates,
Series 199_-_, Class A-1F, Class A-1A, Class X and Class R (herein called the
"Certificates") and, as set forth in the Agreement, representing interests in
(i) such Mortgage Loans as from time to time are subject to the Agreement,
together with the Mortgage Files relating thereto and all proceeds thereof
(other than the Representative's Yield), (ii) such assets as from time to time
are identified as REO Property or are deposited in the Collection Account,
Principal and Interest Account (including all earnings thereon and proceeds
thereof), Spread Account, or Insurance Account, including amounts on deposit in
the Accounts or the Principal and Interest Account and invested in Permitted
Instruments, (iii) the Trustee's rights under all insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to the
Agreement and any Insurance Proceeds, (iv) the Certificate Insurance Policy, (v)
Liquidation Proceeds and (vi) Released Mortgaged Property Proceeds (all of the
foregoing being hereinafter collectively called the "Trust Fund"). The Class X
Certificates are subordinate in right of payment to the Class A Certificates, to
the extent set forth in the Agreement.
The Certificates do not represent an obligation of, or an
interest in, the Servicer, the Representative, the Depositors or the Trustee and
are not insured or guaranteed by the Federal Deposit Insurance Corporation, the
Government National Mortgage Association, the Federal Housing Administration or
the Veterans Administration or any other governmental agency. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the Mortgage Loans, and amounts withdrawable from the Collection Account, all as
more specifically set forth herein and in the Agreement.
[Insurer] has issued a certificate guaranty insurance policy
with respect to the Class A Certificates, a copy of which is attached as Exhibit
I to the Agreement.
B-5-1
151
As provided in the Agreement, deposits and withdrawals from
the Collection Account and the Insurance Account may be made by the Trustee from
time to time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of certain expenses incurred by the Servicer
and investment in Permitted Instruments.
Subject to certain restrictions, the Agreement permits the
amendment thereof with respect to certain modifications (a) by the Depositors,
the Servicer and the Trustee, with the prior written consent of the Certificate
Insurer, without the consent of the Certificateholders, and (b) by the
Depositors, the Representative, the Servicer, the Trustee, with the prior
written consent of the Certificate Insurer, the Majority in Aggregate Voting
Interest and the holders of a majority of the Percentage Interest in the Class R
Certificates. The Agreement permits the Majority in Aggregate Voting Interest to
waive, on behalf of all Certificateholders, any default by the Servicer in the
performance of its obligations under the Agreement and its consequences, except
in a default in making any required distribution on a Certificate. Any such
consent or waiver by the Majority in Aggregate Voting Interest shall be
conclusive and binding on the holder of this Certificate and upon all future
holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies maintained by the Trustee in New York,
New York or Chicago, Illinois duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to, the Trustee, duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate undivided Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the Certificate is exchangeable for a new Certificate evidencing the same
undivided ownership interest, as requested by the holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Servicer, the Representative, the Depositors and the
Trustee and any agent of any of the foregoing, may treat the person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the foregoing shall be affected by notice to the contrary.
The obligations created by the Agreement shall terminate upon
notice to the Trustee of: (i) the later of the distribution to
Certificateholders of the final payment or collection with respect to the last
Mortgage Loan, or the disposition of all funds with respect to the last Mortgage
Loan and the remittance of all funds due under the Agreement and the payment of
all amounts due and payable to the Certificate Insurer and the Trustee, (ii) the
purchase by the
B-5-2
152
Servicer of all outstanding Mortgage Loans and REO Properties at a price
determined as provided in the Agreement (the exercise of the right of the
Servicer to purchase all the Mortgage Loans and property in respect of Mortgage
Loans will result in early retirement of the Certificates), the right of the
Servicer to purchase being subject to the Pool Principal Balance of the Mortgage
Loans and REO Properties at the time of purchase being less than ten percent
(10%) of the Original Pool Principal Balance, (iii) by the mutual consent of the
Servicer, the Certificate Insurer and all Certificateholders in writing or (iv)
upon the failure of the Trust REMIC to qualify as a REMIC pursuant to Section
11.05 of the Agreement. By its acceptance of this Certificate, the
Certificateholder hereby appoints the Servicer as its attorney-in-fact to adopt
a plan of liquidation of the Trust Fund in accordance with Section 11.02 of the
Agreement.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-5-3
153
EXHIBIT C
DTC LETTER OF REPRESENTATIONS
C-1
154
EXHIBIT D
MORTGAGE LOAN SCHEDULES
D-1
155
ADJUSTABLE RATE GROUP
D-2
156
FIXED RATE GROUP
D-3
157
EXHIBIT E
FORM OF TRUSTEE INITIAL CERTIFICATION
______, 199_
[Representative]
[Insurer]
[Servicer]
[Depositors]
Re: Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), EQCC Home Equity Loan Asset
Backed Certificates, Series 199_-_, Class A-1F, Class
A-1A, Class X and Class R, dated as of ______, 199_
among EquiCredit Corporation of America, as Servicer,
the Depositors listed therein and [Trustee], as
Trustee
Ladies and Gentlemen:
In accordance with Section 2.06 of the Pooling and Servicing
Agreement, the undersigned, as Trustee, hereby certifies that, except as noted
on the Master Exception Report dated [], 1998 and made a part hereof, it or the
Custodian on its behalf has received, with respect to each Mortgage Loan, the
documents specified in Sections 2.04(a), (b), (c), (g) and (h) of the Pooling
and Servicing Agreement, as applicable, a Mortgage, or a certified copy thereof,
Assignment of Mortgage, or a certified copy thereof, and a Mortgage Note with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and the
documents contained therein appear to bear original signatures or copies of
originals if the originals have not yet been delivered.
Neither the Trustee nor the Custodian on its behalf has made
any independent examination of any such documents beyond the review specifically
required in the above-referenced Pooling and Servicing Agreement. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any such documents or any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) collectability, insurability,
effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
[TRUSTEE]
By:
---------------------------------
Name:
Title:
E-1
158
EXHIBIT F-1
FORM OF TRUSTEE INTERIM CERTIFICATION
, 19__
[Representative]
[Insurer]
[Depositors]
[Servicer]
Re: Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), EQCC Home Equity Loan Asset
Backed Certificates, Series 199_-_, Class A-1F, Class
A-1A, Class X and Class R, dated as of ______, 199_,
among EquiCredit Corporation of America, as Servicer,
the Depositors listed therein and [Trustee], as
Trustee
Ladies and Gentlemen:
In accordance with the provisions of Section 2.06 of the
above-referenced Pooling and Servicing Agreement, the undersigned, as Trustee,
hereby certifies that as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan listed
on the attachment hereto), it or the Custodian on its behalf has reviewed the
documents delivered to it or the Custodian on its behalf pursuant to Section
2.04 of the Pooling and Servicing Agreement and has determined that (i) all such
documents are in its possession or in the possession of the Custodian on its
behalf (other than those listed in Section 2.04(f)), (ii) such documents have
been reviewed by it or the Custodian on its behalf and have not been mutilated,
damaged, torn or otherwise physically altered and relate to such Mortgage Loan,
(iii) based on its examination, or the examination of the Custodian on its
behalf, and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule (other than items (i), (iv) and (x) of the definition of
Mortgage Loan Schedule) respecting such Mortgage Loan accurately reflects the
information set forth in the Mortgage File and (iv) each Mortgage Note has been
endorsed as provided in Section 2.04 of the Pooling and Servicing Agreement.
Neither the Trustee nor the Custodian on its behalf has made
any independent examination of such documents beyond the review specifically
required in the above-referenced Pooling and Servicing Agreement. The Trustee
makes no representations as to: (i) the validity, legality, enforceability or
genuineness of any such documents contained in each or any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
F-1-1
159
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
servicing Agreement.
,
-----------------------------------
as Trustee
By:
-------------------------------
Name:
Title:
F-1-2
160
EXHIBIT F-2
FORM OF TRUSTEE FINAL CERTIFICATION
, 19__
[Representative]
[Insurer]
[Depositors]
[Servicer]
Re: Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), EQCC Home Equity Loan Asset
Backed Certificates, Series 199_-_, Class A-1F, Class
A-1A, Class X and Class R, dated as of ______, 199_
among EquiCredit Corporation of America, as Servicer,
the Depositors listed therein and [Trustee], as
Trustee
Ladies and Gentlemen:
In accordance with Section 2.06 of the above-captioned Pooling
and Servicing Agreement, the undersigned, as Trustee, hereby certifies that,
except as noted on the attachment hereto, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto) it or to the Custodian on its behalf has reviewed the
documents delivered to it or to the Custodian on its behalf pursuant to Section
2.04 of the Pooling and Servicing Agreement and has determined that (i) all such
documents are in its possession or in the possession of the Custodian on its
behalf (other than those listed in Section 2.04(f)), (ii) such documents have
been reviewed by it and have not been mutilated, damaged, torn or otherwise
physically altered and relate to such Mortgage loan, (iii) based on its
examination, and only as to the foregoing documents, the information set forth
in the Mortgage Loan Schedule (other than items (i), (iv) and (x) of the
definition of Mortgage Loan Schedule) respecting such Mortgage Loan accurately
reflects the information set forth in the Trustee's Mortgage File and (iv) each
Mortgage Note has been endorsed as provided in Section 2.04 of the Pooling and
Servicing Agreement. Neither the Trustee nor the Custodian on its behalf has
made any independent examination of such documents beyond the review
specifically required in the above-referenced Pooling and Servicing Agreement.
The Trustee makes no representations as to: (i) the validity, legality,
enforceability or genuineness of any such documents contained in each or any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
F-2-1
161
,
-----------------------------------
as Trustee
By:
-------------------------------
Name:
Title:
F-2-2
162
EXHIBIT G
LIST OF BANKRUPTCY LOANS
G-1
163
EXHIBIT H
FORM OF DELINQUENCY REPORT
Mortgage Pool
Number of Principal % of Aggregate
Accounts Balance Principal
-------- ------- --------------
Potentially Delinquent $ %
30 Days Delinquent
60 Days Delinquent
90 or More Days
Delinquent
In Foreclosure
In Bankruptcy
30 Days Delinquent
60 Days Delinquent
90 or More Days
Delinquent
In REO
H-1
164
EXHIBIT I
CERTIFICATE GUARANTY INSURANCE POLICY
165
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
, 19
------------------ --
EQCC Receivables Corporation
EQCC Asset Backed Corporation
[ADDRESS]
[Trustee]
[Address]
Re: EQCC Home Equity Loan Asset Backed Certificates,
Series 199_-_, Class R
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
___________________(the "Seller") to ____________________(the "Purchaser") of a
% Percentage Interest of EQCC Home Equity Loan Asset Backed Certificates,
Series 199_-_, Class R (the "Certificates"), pursuant to Section 4.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of dated as of _____________, 199_ by and among EquiCredit Corporation of
America, as Representative and Servicer, the Depositors listed therein
("Depositors") and [Trustee], as trustee ("Trustee"). All terms used herein and
not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Seller hereby certifies, represents and warrants to,
and covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to the transfer of the
Certificates by the Seller to the Purchaser is or will be to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to
the Trustee and the Servicer a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit M-1. The Seller does
not know or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Seller has determined that the Purchaser has
historically paid its debts as they become due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Seller understands that the transfer of a
Class R Certificate may not be respected for United States income tax purposes
(and the Seller may continue to be liable
J-1
166
for United States income taxes associated therewith) unless the Seller has
conducted such an investigation.
4. The Seller has no actual knowledge that the proposed
Purchaser (i) is not (x) a United States Person (y) is a person other than a
U.S. Person (a "Non-U.S. Person") that holds the Class R 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 or (z) 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 the Class R Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R Certificate will not be disregarded for federal
income tax purposes and (ii) is not a Permitted Transferee.
Very truly yours,
-----------------------------------------
(Seller)
By:
--------------------------------------
Name:
Title:
J-2
167
EXHIBIT K
LIST OF ORIGINATORS
[EquiCredit Corporation of America]
[EquiCredit Corporation/Ala. & Miss.]
[California/EquiCredit Corporation]
[EquiCredit Corporation of In.]
[EquiCredit Corporation of Pa.]
[EquiCredit Corporation of SC]
K-1
168
EXHIBIT L
[RESERVED]
L-1
169
EXHIBIT M-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
State of ________________ )
) ss.:
County of ________________ )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the EQCC Home Equity Loan Asset Backed Certificates, Series
199_-_, Class R (the "Owner")), a [savings institution] [corporation] duly
organized and existing under the laws of [the State of ________] [the United
States], on behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section 860E(e)(5)
of the Internal Revenue Code of 1986, as amended (the "Code"), (ii) will
endeavor to remain other than a disqualified organization for so long as it
retains its ownership interest in the Class R Certificates, and (iii) is
acquiring the Class R Certificates for its own account or for the account of
another Owner from which it has received an affidavit and agreement in
substantially the same form as this affidavit and agreement. (For this purpose,
a "disqualified organization" means the United States, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing
(other than an instrumentality all of the activities of which are subject to
tax and, except for the Federal Home Loan Mortgage Corporation, a majority of
whose board of directors is not selected by any such governmental entity) or
any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R Certificates to disqualified organizations under the Code;
(ii) that such tax would be on the transferor, or, if such transfer is through
an agent (which person includes a broker, nominee or middleman) for a
disqualified organization, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is not a disqualified
organization and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class R Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
4. That the Owner is aware that the Trustee will not register the
transfer of any Class R Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement.
M-1-1
170
The Owner expressly agrees that it will not consummate any such transfer if it
knows or believes that any of the representations contained in such affidavit
and agreement are false.
5. That the Owner has reviewed the restrictions set forth on the face
of the Class R Certificates and the provisions of Section 4.02(d) of the
Pooling and Servicing Agreement under which the Class R Certificates were
issued (in particular, clause (6) of Section 4.02(d) which authorize the
Trustee to deliver payments to a person other than the Owner in the event the
Owner holds such Certificates in violation of Section 4.02(c)). The Owner
expressly agrees to be bound by and to comply with such restrictions and
provisions.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class R Certificates
will only be owned, directly or indirectly, by an Owner that is not a
disqualified organization.
7. The Owner's Taxpayer Identification Number is __________________.
8. This affidavit and agreement relates only to the Class R
Certificates held by the Owner and not to any other holder of the Class R
Certificates. The Owner understands that the liabilities described herein
relate only to the Class R Certificates.
9. That no purpose of the Owner relating to the transfer of any of the
Class R Certificates by the Owner is or will be to impede the assessment or
collection of any tax.
10. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the person from whom it acquired the Class R Certificate
that the Owner intends to pay taxes associated with holding such Class R
Certificate as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class R Certificate.
11. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Class R Certificates remain outstanding.
12. That the Owner (i) is a U.S. Person or (ii) is a person other than
a U.S. Person (a "Non-U.S. Person") that holds the Class R 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 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 the Class R Certificate to it is in accordance
with the requirements of the Code and the regulations promulgated thereunder
and that such transfer of the Class R Certificate will not be disregarded for
federal income tax purposes. "U.S. Person" means a citizen or resident of the
United States, a corporation, partnership (except to the extent provided in
applicable Treasury regulations) or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, an
estate that is subject to U.S. federal income tax regardless of the source of
its income or a trust if a court within the United States is able to exercise
primary
M-1-2
171
supervision over the administration of such trust, and one or more such U.S.
Persons have the authority to control all substantial decisions of such trust
(or, to the extent provided in applicable Treasury regulations, certain trusts
in existence on August 20, 1996 which are eligible to elect to be treated as
U.S. Persons).
M-1-3
172
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this day of _______________, 199__.
[NAME OF OWNER]
By:
---------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
-----------------------------------
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to
me that he executed the same as his free act and deed and the free act and deed
of the Owner.
Subscribed and sworn before me this day of _____________, 199__.
----------------------------------
NOTARY PUBLIC
COUNTY OF
-------------------------
STATE OF
-------------------------
My Commission expires the __ day of
______, 19__.
M-1-4
173
EXHIBIT M-2
FORM OF INVESTOR REPRESENTATION LETTER
___________________, __
[Trustee]
[Address]
Re: EQCC Home Equity Loan Asset Backed Certificates,
Series 199_-_
Ladies and Gentlemen:
_________________________ (the "Purchaser") intends to purchase from
_________________ (the "Seller"), a ____% Percentage Interest of EQCC Home
Equity Loan Asset Backed Certificates, Series 199_-_, Class [X][R] (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of ______________, 199_, among
[Trustee], as trustee (the "Trustee"), Equicredit Corporation of America, EQCC
Receivables Corporation and EQCC Asset Backed Corporation (collectively with
EQCC Receivables Corporation, the "Depositors"). All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Purchaser hereby certifies, represents and warrants
to, and covenants with, the Company and the Trustee that:
1. The Purchaser understands that (a) the Certificates
have not been and will not be registered or qualified under the
Securities Act of 1933, as amended (the "Act") or any state securities
law, (b) the Company is not required to so register or qualify the
Certificates, (c) the Certificates may be resold only if registered
and qualified pursuant to the provisions of the Act or any state
securities law, or if an exemption from such registration and
qualification is available, (d) the Pooling and Servicing Agreement
contains restrictions regarding the transfer of the Certificates and
(e) the Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its
own account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such matters
related to securities similar to the Certificates, such that it is
capable of evaluating the merits and risks of investment in the
Certificates, (b) able to bear the economic risks of such an
investment and (c) an "accredited investor" within the meaning of Rule
501(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had
an opportunity to review a copy of the Private Placement Memorandum
dated _________________, ______, relating to the Certificates, the
Pooling and Servicing Agreement and such other
M-2-1
174
information concerning the Certificates, the Mortgage Loans and the
Company as has been requested by the Purchaser from the Company or the
Seller and is relevant to the Purchaser's decision to purchase the
Certificates. The Purchaser has had any questions arising from such
review answered by the Company or the Seller to the satisfaction of
the Purchaser.
5. The Purchaser has not and will not nor has it
authorized or will it authorize any person to (a) offer, pledge, sell,
dispose of or otherwise transfer any Certificate, any interest in any
Certificate or any other similar security to any person in any manner,
(b) solicit any offer to buy or to accept a pledge, disposition of
other transfer of any Certificate, any interest in any Certificate or
any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any
interest in any Certificate or any other similar security with any
person in any manner, (d) make any general solicitation by means of
general advertising or in any other manner or (e) take any other
action, that (as to any of (a) through (e) above) would constitute a
distribution of any Certificate under the Act, that would render the
disposition of any Certificate a violation of Section 5 of the Act or
any state securities law, or that would require registration or
qualification pursuant thereto. The Purchaser will not sell or
otherwise transfer any of the Certificates, except in compliance with
the provisions of the Pooling and Servicing Agreement.
[6. For Class X Certificates] Either (A) the Purchaser
is not an employee benefit plan or other retirement arrangement
subject to 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") (collectively, an "ERISA Plan"), and is
not acting on behalf of, as named fiduciary of, as trustee of, or
investing the assets of an ERISA Plan, (B) if the Purchaser is an
insurance company, all funds used to purchase the Class X Certificates
are from an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995) and there is
no ERISA Plan with respect to which the amount of such general
account's reserves and liabilities for the contract(s) held by or on
behalf of such ERISA Plan and all other ERISA Plans maintained by the
same employer (or affiliate thereof as defined in Section V(a)(1) of
PTE 95-60) or by the same employee organization exceeds 10% of the
total of all reserves and liabilities of such general account (as such
amounts are determined under Section I(a) of PTE 95-60) at the date of
acquisition or (C) the Purchaser has provided a certification of facts
and an opinion of counsel which establish to the satisfaction of the
Company and the Trustee that such transfer will not result in a
violation of Section 406 of ERISA or Section 4975 of the Code or cause
the Servicer or the Trustee to be deemed a fiduciary of such ERISA
Plan or result in the imposition of an excise tax under Section 4975
of the Code.
M-2-2
175
[6. For Class R Certificates] the Purchaser is not an
employee benefit plan or other retirement arrangement subject to 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") (collectively, an "ERISA Plan"), and is not acting on behalf
of, as named fiduciary of, as trustee of, or investing the assets of
an ERISA Plan.
Very truly yours,
By:
----------------------------------
Name:
Title:
M-2-3
176
EXHIBIT M-3
FORM OF TRANSFEROR REPRESENTATION LETTER
__________________, 199__
[Trustee]
[Address]
Re: EQCC Home Equity Loan Asset Backed Certificates,
Series 199_-_
Ladies and Gentlemen:
In connection with the sale by ________________ (the "Seller") to
_____________________ (the "Purchaser") of [$____________ initial Certificate
Principal Balance][% Percentage Interest] of EQCC Home Equity Loan Asset Backed
Certificates, Series 199_-_, Class [X][R] (the "Certificates"), issued pursuant
to the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of ____________, 199_, among [Trustee], as trustee (the "Trustee"),
Equicredit Corporation of America, EQCC Receivables Corporation and EQCC Asset
Backed Corporation (collectively, the "Company"). The Seller hereby certifies,
represents and warrants to, and covenants with, the Company and the Trustee
that:
Neither the Seller nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
has otherwise approached or negotiated with respect to any Certificate, any
interest in any Certificate or any other similar security with any person in
any manner, (d) has made any general solicitation by means of general
advertising or in any other manner, or (e) has taken any other action, that (as
to any of (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933, as amended (the "Act"), that
would render the disposition of any Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Seller will not act in any manner set forth
in the foregoing sentence with respect to any Certificate. The Seller has not
and will not sell or otherwise transfer any of the Certificates, except in
compliance with the provisions of the Pooling and Servicing Agreement.
Very truly yours,
-----------------------------------------
(Seller)
By:
--------------------------------------
Name:
Title:
M-3-1
177
EXHIBIT M-4
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
EQCC Home Equity Loan
Asset Backed Certificates
Series 199_-_, Class ______, No.________
The undersigned Seller, as registered holder (the
"Transferor"), intends to transfer the Rule 144A Securities described above to
the undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance
with the agreements pursuant to which the Rule 144A Securities were issued, the
Transferor hereby certifies the following facts: Neither the Transferor nor
anyone acting on its behalf has offered, transferred, pledged, sold or
otherwise disposed of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Rule 144A Securities, or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security with,
any person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, which would
constitute a distribution of the Rule 144A Securities under the Securities Act
of 1933, as amended (the "1933 Act"), or which would render the disposition of
the Rule 144A Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, and that the Transferor has not offered the Rule
144A Securities to any person other than the Buyer or another "qualified
institutional buyer" as defined in Rule 144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants
with, the Transferor, the Trustee and the Servicer pursuant to Section 4.02 of
the Pooling and Servicing Agreement as follows:
a. The Buyer understands that the Rule 144A
Securities have not been registered under the 1933 Act or the
securities laws of any state.
b. The Buyer considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The Buyer has been furnished with all
information regarding the Rule 144A Securities that it has requested
from the Transferor, the Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed
of the Rule 144A Securities, any interest in the Rule 144A Securities
or any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached
M-4-1
178
or negotiated with respect to the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Rule 144A Securities under
the 1933 Act or that would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require
registration pursuant thereto, nor will it act, nor has it authorized
or will it authorize any person to act, in such manner with respect to
the Rule 144A Securities.
e. The Buyer is a "qualified institutional
buyer" as that term is defined in Rule 144A under the 1933 Act. The
Buyer is aware that the sale to it is being made in reliance on Rule
144A. The Buyer is acquiring the Rule 144A Securities for its own
account or the account of other qualified institutional buyers,
understands that such Rule 144A Securities may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under
the 1933 Act.
3. The Buyer warrants and represents to, and covenants
with, the Transferor, the Servicer and the Representative that the Buyer is not
an employee benefit plan or other retirement arrangement subject to 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")
(collectively, an "ERISA Plan"), and is not acting on behalf of, as named
fiduciary of, as trustee of, or investing the assets of an ERISA Plan.
4. This document may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed to be an original; such
counterparts, together, shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this
document as of the date set forth below.
------------------------------------- ----------------------------------
Print Name of Transferor Print Name of Buyer
By: By:
---------------------------------- ------------------------------
Name: Name:
Title Title
Taxpayer Identification: Taxpayer Identification:
No. No.
---------------------------------- ------------------------------
Date: Date:
-------------------------------- ----------------------------
M-4-2
179
EXHIBIT N
FORM OF CUSTODIAL AGREEMENT
(See Item 4)
N-1
180
EXHIBIT O
FORM OF LIQUIDATION REPORT
Customer Name:
Account Number:
Original Principal Balance:
1. Liquidation Proceeds
Principal Prepayment $___________
Property Sale Proceeds ___________
Insurance Proceeds ___________
Other (Itemize) ___________
Total Proceeds $___________
2. Servicing Advances $___________
Monthly Advances ___________
Servicing Fees ___________
Total Advances $___________
3. Net Liquidation Proceeds $ (Line 1 minus Line 2) $___________
4. Principal Balance of the Mortgage
Loan on date of liquidation $___________
5. Loss, if any
(Line 4 minus Line 3) $___________
O-1
181
EXHIBIT P
FORM OF PRINCIPAL AND INTEREST ACCOUNT LETTER AGREEMENT
(date)
To: (the "Account Depository")
--------------------------
--------------------------
As "Servicer" under the Pooling and Servicing Agreement, dated
as of _____, 199_ (the "Agreement") with respect to EQCC Home Equity Loan Asset
Backed Certificates, Series 199_-_, Class A-1F, Class A-1A, Class X and Class R
(collectively, the "Certificates"), we hereby authorize and request you to
establish an account, as a Principal and Interest Account pursuant to Section
5.03 of the Agreement, in the name of [Trustee] and to be titled "EQCC Home
Equity Loan Trust, Series 199_-_ Principal and Interest Account". The Principal
and Interest Account shall bear an additional designation clearly indicating
that the funds deposited therein are held for the Trustee for the benefit of
the holders of the Certificates. All deposits in the account shall be subject
to withdrawal therefrom by order signed by the Servicer. You may refuse any
deposit which would result in violation of the requirement that the account be
fully insured as described below. This letter is submitted to you in duplicate.
Please execute and return one original to us.
EQUICREDIT CORPORATION OF
AMERICA
By:
------------------------------------
Name:
Title:
The undersigned, as Account Depository, hereby certifies that
the above described account has been established under Account Number __, at the
office of the depository indicated above, and agrees to honor withdrawals on
such account as provided above. The amounts deposited at any time in the
account will be insured to the maximum amount provided by applicable law by the
Bank Insurance Fund or the Savings Association Insurance Fund of the Federal
Deposit Insurance Corporation.
(Name of Account Depository)
By:
------------------------------------
Name:
Title:
P-1
182
EXHIBIT Q
FORM OF NOTICE
TO: [Insurer]
[Address]
RE: EQCC Home Equity Loan Asset Backed Certificates, Series 199_-_, Class
A-1F, Class A-1A,
Policy No.
-------------------
Determination Date:
Payment Date:
We refer to that certain Pooling and Servicing Agreement among Credit
Corporation of America, the Depositors listed therein and [Trustee], as
trustee, relating to EQCC Home Equity Loan Asset Backed Certificates, Series
199_-_, Class A-1F, Class A-1A, Class X and Class R (the "Pooling and Servicing
Agreement") dated as of ________, 199_; all capitalized terms not otherwise
defined herein shall have the same respective meanings as set forth in such
Pooling and Servicing Agreement.
As of the Determination Date, the Trustee has determined under the Pooling and
Servicing Agreement and hereby certifies that in respect of the related Payment
Date:
(i) The Class A Remittance Amount ($_____________) exclusive of amounts
attributable to clause (iv) of the definition of "Basic Principal
Amount," to the extent such amount is due but not paid by the
Representative, the Depositors or the Originators.
(ii) The Available Payment Amount is $______________ and the amount of
Excess Spread on deposit in the Collection Account is $_________ (less
$___________, the amounts to be withdrawn for deposit into the
Insurance Account or Spread Account pursuant to Sections 6.02(i) and
(iii) of the Pooling and Servicing Agreement).
(iii) $_________, amounts previously paid to Class A Certificateholders as
Insured Payments.
(iv) The amount that has been deposited in the Collection Account but may
not be withdrawn therefrom pursuant to an order of a United States
bankruptcy court of competent jurisdiction imposing a stay pursuant to
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy
Q-1
183
Code and would otherwise have constituted all or a portion of the
amount described in Item (ii) above is $________.
(v) The excess of the amount stated in (i), above, over the amount stated
in (ii), above, less the amount described in (iii), above, less the
amount stated in (iv) above is $_________________.
(vi) Monthly installments of principal and interest on the Mortgage Loans
that were due during the Due Period related to this Payment Date and
were not received prior to this Payment Date equal $_________________.
(vii) In accordance with the above and the Agreement, the Insured Payment is
$______________________.
[Attached hereto is a copy of the court order in connection with a voidable
preference that constitutes a component of the Class A Principal Remittance
Amount in the amount set forth therein.]
Accordingly, an Event of Nonpayment has occurred and, pursuant to Section 6.05
of the Pooling and Servicing Agreement, this statement constitutes a claim for
an Insured Payment in the amount of $_______________ under the Insurance Policy.
Any person who knowingly and with intent to defraud any insurance company or
other person files an application for insurance or statement of claim
containing any materially false information, or conceals for the purpose of
misleading, information concerning any fact material thereto, commits a
fraudulent insurance act, which is a crime, and shall also be subject to a
civil penalty not to exceed Five Thousand ($5,000.00) Dollars and the stated
value of the claim for each such violation.
The amount claimed should be paid as follows:
-----------------------------
-----------------------------
-----------------------------
, as Trustee
---------------
By:
-------------------------
Name:
------------------------
Title:
----------------------
Telephone #:
------------------
For [Insurer] Use Only
Wire Transfer Sent On:
By:
-------------------------
Confirmation Number:
Q-2
184
EXHIBIT R
MONTHLY INFORMATION DELIVERED BY SERVICER
1. With respect to the Mortgage Pool and each Mortgage Loan Group, the
number and Principal Balances of all Mortgage Loans which were the
subject of Principal Prepayments during the related Due Period.
2. With respect to the Mortgage Pool and each Mortgage Loan Group, the
amount of all Curtailments which were received during the related Due
Period.
3. With respect to the Mortgage Pool and each Mortgage Loan Group, the
aggregate amount of principal portion of all Monthly Payments received
during the related Due Period.
4. With respect to the Mortgage Pool and each Mortgage Loan Group, the
amount of interest received on the Mortgage Loans during the related
Due Period.
5. With respect to the Mortgage Pool and each Mortgage Loan Group, the
aggregate amount of the Advances made and recovered with respect to
such Payment Date.
6. With respect to the Mortgage Pool and each Mortgage Loan Group, the
delinquency and foreclosure information set forth in Exhibit H to the
Pooling and Servicing Agreement and the amount of Mortgage Loan Losses
during the related Due Period.
7. With respect to the Mortgage Pool and each Mortgage Loan Group, the
weighted average maturity, the weighted average Mortgage Interest Rate
and the weighted average Net Mortgage Interest Rate as of the last day
of the Due Period preceding of the related Accrual Period.
8. The Servicing Fees paid and Servicing Fees accrued during the related
Due Period.
9. The amount of all payments or reimbursements to the Servicer pursuant
to Section 5.04 (ii), (iv), (v), (vi) and (vii) paid or to be paid
since the prior Payment Date (or in the case of the first Payment
Date, since the Closing Date).
10. The Pool Principal Balance and aggregate Principal Balance for each
Mortgage Loan Group.
11. Such other information as the Certificate Insurer, each Account Party
and the Certificateholders may reasonably require.
12. The amounts which are reimbursable to the Servicer, the Representative
or the Depositors, as appropriate, pursuant to Section 6.05.
13. With respect to the Mortgage Pool and each Mortgage Loan Group, the
number of Mortgage Loans outstanding at the beginning and at the end
of the related Due Period.
R-1
185
14. The aggregate interest accrued on the Mortgage Loans at their
respective Mortgage Interest Rates for the related Due Period.
15. The amount deposited in the Collection Account which may not be
withdrawn therefrom pursuant to an Order of a United States Bankruptcy
Court of competent jurisdiction imposing a stay pursuant to Section
362 of U.S. Bankruptcy Code.
16. The Principal Balance of Mortgage Loans in the Fixed Rate Group with
Mortgage Interest Rates less than [___]% per annum.
17. The aggregate Mortgage Loan Losses since the Cut-off Date as of the
end of the related Due Period.
18. The Class A-1A LIBOR Interest Carryover with respect to such Payment
Date.
19. The Class A-1F LIBOR Interest Carryover with respect to such Payment
Date.
R-2
186
EXHIBIT S
[RESERVED]
S-1
187
EXHIBIT T
SCHEDULE OF MORTGAGE LOANS SUBJECT TO
THE HOME OWNERSHIP AND EQUITY PROTECTION ACT OF 1994
NOTICE: EACH MORTGAGE LOAN LISTED ON THIS MORTGAGE LOAN SCHEDULE IS SUBJECT TO
SPECIAL RULES UNDER THE FEDERAL TRUTH IN LENDING ACT. PURCHASERS OR ASSIGNEES
OF A MORTGAGE LOAN LISTED ON THIS MORTGAGE LOAN SCHEDULE COULD BE LIABLE FOR
ALL CLAIMS AND DEFENSES WITH RESPECT TO SUCH MORTGAGE LOAN THAT THE RELATED
MORTGAGOR COULD ASSERT AGAINST THE ORIGINAL LENDER.
T-1
188
EXHIBIT U
LOST NOTE AND/OR MORTGAGE/DEED OF TRUST AFFIDAVIT
State of Account #
-------------------------- -------------------
County of
------------------------
TO WIT:
Comes the affiant, __________________________________________ (Name/Title) of
_____________________________________________________________, after being duly
sworn by me, ____________________________________________, and in my presence,
a Notary Public in and for the county and state aforesaid states that
__________________________________________________________________ is the
Noteholder or lien creditor, under a certain Mortgage/Deed of Trust from
___________________________________ to _____________________________________,
dated and recorded in the Clerk's Office of the Circuit Court of the County of
_______________________, State of _________________________in Deed Book
No.______________ at Page ____________________, as Instrument Number
_____________________ to secure $ ______________________, and that said
____________________ Note Mortgage evidencing the debt has been inadvertently
lost or destroyed and cannot be produced.
--------------------------------------
By:
Name:
Title:
State of
----------------
County of
----------------
The foregoing instrument was acknowledged before me this _______________day of
______________, 19__ By ______________________________.
---------------------------------------
Notary Public
U-1
189
EXHIBIT V
SCHEDULE OF MORTGAGE LOANS THAT DO NOT
HAVE TITLE INSURANCE POLICIES
V-1
