EXECUTION COPY
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.,
Depositor
EMC MORTGAGE CORPORATION,
Seller and Master Servicer
LASALLE BANK NATIONAL ASSOCIATION
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2001
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BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
TABLE OF CONTENTS
PAGE
ARTICLE I.
DEFINITIONS
Section 1.01. Defined Terms................................................2
ARTICLE II.
CONVEYANCE OF TRUST FUND REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Trust Fund.....................................26
Section 2.02. Acceptance of the Mortgage Loans.............................27
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Seller......................................29
Section 2.04. Representations and Warranties of the Depositor..............38
Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases................................39
Section 2.06. Countersignature and Delivery of Certificates................39
Section 2.07. Covenants of the Master Servicer.............................40
Section 2.08. Lost Mortgage Notes Indemnity................................40
ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans....................41
Section 3.02. Subservicing; Enforcement of the Obligations of Master
Servicer.....................................................42
Section 3.03. Rights of the Depositor, the Trustee in Respect of the
Master Servicer..............................................42
Section 3.04. Successor Master Servicer and Subservicing Agreements........42
Section 3.05. Collection of Mortgage Loan Payments; Protected Account;
Distribution Account.........................................43
Section 3.06. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts...........................................46
Section 3.07. Access to Certain Documentation and Information Regarding
the Mortgage Loans...........................................46
Section 3.08. Permitted Withdrawals from the Protected Account and the
Distribution Account.........................................46
Section 3.09. [Reserved.]..................................................48
Section 3.10. Maintenance of Hazard Insurance..............................48
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements....49
Section 3.12. Realization Upon Defaulted Mortgage Loans; Determination
of Excess Proceeds and Realized Losses.......................50
Section 3.13. Trustee to Cooperate; Release of Mortgage Files..............52
Section 3.14. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee..........................53
Section 3.15. Servicing Compensation.......................................53
Section 3.16. Access to Certain Documentation..............................54
Section 3.17. Annual Statement as to Compliance; Annual Independent
Accountant's Servicing Report................................54
Section 3.18. Reports Filed with Securities and Exchange Commission........55
Section 3.19. REMIC-Related Covenants......................................55
Section 3.20. Optional Purchase of Defaulted Mortgage Loans................55
Section 3.21. Maintenance of Primary Mortgage Insurance Policies...........56
ARTICLE IV.
[RESERVED]
ARTICLE V.
DISTRIBUTIONS, AND ADVANCES BY THE MASTER SERVICER
Section 5.01. Advances.....................................................58
Section 5.02. Compensating Interest Payments...............................58
Section 5.03. REMIC Distributions..........................................58
Section 5.04. Distributions................................................59
Section 5.04A Allocation of Realized Losses................................61
Section 5.05. Monthly Statements to Certificateholders.....................62
Section 5.06. REMIC Designations and Allocations...........................64
ARTICLE VI.
THE CERTIFICATES
Section 6.01. The Certificates.............................................68
Section 6.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.....................................69
Section 6.03. Mutilated, Destroyed, Lost or Stolen Certificates............72
Section 6.04. Persons Deemed Owners........................................72
Section 6.05. Access to List of Certificateholders' Names and Addresses....73
Section 6.06. Book-Entry Certificates......................................73
Section 6.07. Notices to Depository........................................74
Section 6.08. Definitive Certificates......................................74
Section 6.09. Maintenance of Office or Agency..............................74
ARTICLE VII.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER
Section 7.01. Respective Liabilities of the Depositor, the Master
Servicer and the Seller......................................75
Section 7.02. Merger or Consolidation of the Depositor, the Master
Servicer or the Seller.......................................75
Section 7.03. Limitation on Liability of the Depositor, the Seller,
the Master Servicer and Others...............................75
Section 7.04. Limitation on Resignation of Master Servicer.................76
Section 7.05. Errors and Omissions Insurance; Fidelity Bonds...............76
ARTICLE VIII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 8.01. Events of Default............................................77
Section 8.02. Trustee to Act; Appointment of Successor.....................78
Section 8.03. Notification to Certificateholders...........................79
ARTICLE IX.
CONCERNING THE TRUSTEE
Section 9.01. Duties of Trustee............................................80
Section 9.02. Certain Matters Affecting the Trustee........................81
Section 9.03. Trustee Not Liable for Certificates or Mortgage Loans........83
Section 9.04. Trustee May Own Certificates.................................83
Section 9.05. Trustee's Fees and Expenses..................................83
Section 9.06. Eligibility Requirements for Trustee.........................84
Section 9.07. Insurance....................................................84
Section 9.08. Resignation and Removal of Trustee...........................84
Section 9.09. Successor Trustee............................................85
Section 9.10. Merger or Consolidation of Trustee...........................85
Section 9.11. Appointment of Co-Trustee or Separate Trustee................86
Section 9.12. Tax Matters..................................................87
ARTICLE X.
TERMINATION
Section 10.01. Termination upon Liquidation or Repurchase of all
Mortgage Loans...............................................90
Section 10.02. Final Distribution on the Certificates.......................90
Section 10.03. Additional Termination Requirements..........................91
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment....................................................93
Section 11.02. Recordation of Agreement; Counterparts.......................94
Section 11.03. Governing Law................................................94
Section 11.04. Intention of Parties.........................................94
Section 11.05. Notices......................................................95
Section 11.06. Severability of Provisions...................................96
Section 11.07. Assignment...................................................96
Section 11.08. Limitation on Rights of Certificateholders...................96
Section 11.09. Inspection and Audit Rights..................................97
Section 11.10. Certificates Nonassessable and Fully Paid....................97
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificates
Exhibit A-2 Form of Class A-2 Certificates
Exhibit A-3 Form of Class A-3 Certificates
Exhibit A-4 Form of Class A-IO Certificates
Exhibit A-5 Form of Class M-1 Certificates
Exhibit A-6 Form of Class M-2 Certificates
Exhibit A-7 Form of Class B Certificates
Exhibit A-8 Form of Class B-IO Certificates
Exhibit A-9 Form of Class R-1 Certificate
Exhibit A-10 Form of Class R-2 Certificate
Exhibit A-11 Form of Class R-3 Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Initial Certification of Trustee
Exhibit C-2 Form of Interim Certification of Trustee
Exhibit C-3 Form of Final Certification of Trustee
Exhibit D Form of Transfer Affidavit
Exhibit E Form of Transferor Certificate
Exhibit F Form of Investment Letter (Non-Rule 144A)
Exhibit G Form of Rule 144A Investment Letter
Exhibit H Form of Request for Release
Exhibit I DTC Letter of Representations
Exhibit J Schedule of Mortgage Loans with Lost Notes
POOLING AND SERVICING AGREEMENT, dated as of November 1, 2001, among
BEAR XXXXXXX ASSET BACKED SECURITIES, INC., a Delaware corporation, as depositor
(the "Depositor"), EMC MORTGAGE CORPORATION, a Delaware corporation, as seller
(in such capacity, the "Seller") and as the master servicer (in such capacity,
the "Master Servicer"), and LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The parties to this Agreement hereby create a common law trust
pursuant to the laws of the State of New York. The Depositor is the owner of the
Trust Fund that is hereby conveyed to the Trustee in return for the
Certificates. As provided herein, the Trustee shall make three separate real
estate mortgage investment conduit (each a "REMIC") elections with respect to
the Trust Fund for Federal income tax purposes.
The Trust Fund shall be named, and may be referred to as, the "Bear
Xxxxxxx Asset Backed Securities Trust 2001-3." The Certificates issued hereunder
may be referred to as "Asset-Backed Certificates, Series 2001-3" (including for
purposes of any endorsement or assignment of a Mortgage Note or Mortgage).
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Seller and the Trustee agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. DEFINED TERMS.
In addition to those terms defined in Section 1.02, whenever used in
this Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
ACCOUNT: Each Protected Account and the Distribution Account.
ACCRUAL PERIOD: With respect to the Class A-IO Certificates and any
Distribution Date, the calendar month immediately preceding such Distribution
Date. With respect to the Class X-0, Xxxxx X-0, Class A-3, Class M-1, Class M-2
and Class B Certificates and any Distribution Date, the period from and
including the immediately preceding Distribution Date (or, in the case of the
first Distribution Date, the Closing Date) to but excluding such Distribution
Date. All calculations of interest on the Class A-IO Certificates will be made
on the basis of a 360-day year consisting of twelve 30-day months, and all
calculations of interest on the Class X-0, Xxxxx X-0, Class A-3, Class M-1,
Class M-2 and Class B Certificates will be made on the basis of the actual
number of days elapsed in the related Accrual Period and in a 360-day year.
ADVANCE: An advance of delinquent payments of principal (other than in
respect of delinquent payments of principal on Simple Interest Loans) or
interest in respect of a Mortgage Loan required to be made by the Master
Servicer as provided in Section 5.01.
AGREEMENT: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto made in accordance with the terms herein.
AMOUNT HELD FOR FUTURE DISTRIBUTION: As to any Distribution Date, the
aggregate amount held in a Protected Account at the close of business on the
immediately preceding Determination Date on account of (i) all Scheduled
Payments or portions thereof received in respect of the Mortgage Loans due after
the related Due Period and (ii) Principal Prepayments and Liquidation Proceeds
received in respect of such Mortgage Loans after the last day of the related
Prepayment Period.
APPLIED REALIZED LOSS AMOUNT: With respect to any Distribution Date
and a Class of Certificates (other than the Class B-IO Certificates and the
Residual Certificates), the sum of the Realized Losses with respect to the
Mortgage Loans which are to be applied in reduction of the Certificate Principal
Balance of that Class of Certificates pursuant to this Agreement, which shall on
any such Distribution Date equal in the aggregate (as to all such Classes) the
amount, if any, by which, (i) the aggregate Certificate Principal Balance of all
of the Certificates (after all distributions of principal on such Distribution
Date) exceeds (ii) the aggregate Stated Principal Balance of all of the Mortgage
Loans as of the last day of the related Due Period.
APPRAISED VALUE: With respect to any Mortgage Loan originated in
connection with a refinancing, the appraised value of the Mortgaged Property
based upon the appraisal made at the time of such refinancing or, with respect
to any other Mortgage Loan, the lesser of (x) the appraised value of the
Mortgaged Property based upon the appraisal made by a fee appraiser at the time
of the origination of the related Mortgage Loan, and (y) the sales price of the
Mortgaged Property at the time of such origination.
BALLOON LOAN: A Mortgage Loan, identified as such on the Mortgage Loan
Schedule, where the related Mortgage Note provides for lowered payments of
principal over the life of such Mortgage Loan and a larger payment of principal
than is usual at its stated maturity.
BANKRUPTCY CODE: Title 11 of the United States Code.
BOOK-ENTRY CERTIFICATES: Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of which
is reflected on the books of the Depository or on the books of a person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 6.06). As of the Closing
Date, each Class of Regular Certificates (other than the Class B-IO
Certificates) constitutes a Class of Book-Entry Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the cities of New York, New York, Chicago,
Illinois, or the city in which the Corporate Trust Office of the Trustee or the
principal office of the Master Servicer is located are authorized or obligated
by law or executive order to be closed.
CERTIFICATE: Any one of the certificates of any Class executed and
authenticated by the Trustee in substantially the forms attached hereto as
Exhibits A-1 through A-11.
CERTIFICATE NOTIONAL BALANCE: (I) As to the Class A-IO Certificates
and (a) any Distribution Date until, but not including the Distribution Date in
May 2004, the lesser of $18,193,000 and the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period and (b)
thereafter, zero; as to any Class A-IO Certificate, its Percentage Interest
thereof; and (II) as to the Class B-IO Certificates and any Distribution Date,
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the
Person that is the beneficial owner of such Book-Entry Certificate.
CERTIFICATE PRINCIPAL BALANCE: As to any Certificate (other than any
Class A-IO or Class B-IO Certificate) and as of any Distribution Date, the
Initial Certificate Principal Balance of such Certificate LESS the sum of (i)
all amounts distributed with respect to such Certificate in reduction of the
Certificate Principal Balance thereof on previous Distribution Dates pursuant to
Section 5.04, and (ii) any Applied Realized Loss Amounts allocated to such
Certificate on previous Distribution Dates. References herein to the Certificate
Principal Balance of a Class of Certificates shall mean the Certificate
Principal Balances of all Certificates in such Class.
CERTIFICATE REGISTER: The register maintained pursuant to Section 6.02
hereof.
CERTIFICATEHOLDER or HOLDER: The person in whose name a Certificate is
registered in the Certificate Register (initially, Cede & Co., as nominee for
the Depository, in the case of any Book-Entry Certificates).
CLASS: All Certificates bearing the same Class designation as set
forth in Section 6.01 hereof.
CLASS A CERTIFICATES: The Class A-1, Class A-2 and Class A-3
Certificates in the aggregate.
CLASS A PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, an
amount equal to the excess, if any, of (a) the aggregate Certificate Principal
Balance of the Class A Certificates immediately prior to such Distribution Date,
over (b) the lesser of (i) 73.00% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Due Period, and (ii) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period, less the Overcollateralization Floor.
CLASS A-1 CERTIFICATE: Any Certificate designated as a "Class A-1
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class A-1 Certificates as set forth herein.
CLASS A-1 MARGIN: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.45% per annum and (ii) thereafter, 0.90% per annum.
CLASS A-1 PASS-THROUGH RATE: For the first Distribution Date, 2.55813%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class A-1 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such Distribution
Date.
CLASS A-2 CERTIFICATE: Any Certificate designated as a "Class A-2
Certificate" on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class A-2 Certificates as set forth herein.
CLASS A-2 MARGIN: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.40% per annum and (ii) thereafter, 0.80% per annum.
CLASS A-2 PASS-THROUGH RATE: For the first Distribution Date, 2.50813%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class A-2 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such Distribution
Date.
CLASS A-3 CERTIFICATE: Any Certificate designated as a "Class A-3
Certificate" on the face thereof, in the form of Exhibit A-3 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class A-3 Certificates as set forth herein.
CLASS A-3 MARGIN: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.65% per annum and (ii) thereafter, 1.30% per annum.
CLASS A-3 PASS-THROUGH RATE: For the first Distribution Date, 2.75813%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class A-3 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such Distribution
Date.
CLASS A-IO CERTIFICATE: Any Certificate designated as a "Class A-IO
Certificate" on the face thereof, in the form of Exhibit A-4 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class A-IO Certificates as set forth herein.
CLASS A-IO PASS-THROUGH RATE: On any Distribution Date (a) through and
including the Distribution Date in May 2004, the lesser of (i) 8.00% per annum
for the related Accrual Period and (ii) the related Interest Rate Cap for such
Distribution Date and (b) thereafter, 0%.
CLASS B CERTIFICATE: Any Certificate designated as a "Class B
Certificate" on the face thereof, in the form of Exhibit A-7 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class B Certificates as set forth herein.
CLASS B MARGIN: For any Distribution Date (i) on or prior to the
Optional Termination Date, 2.50% per annum and (ii) thereafter, 3.75% per annum.
CLASS B PASS-THROUGH RATE: For the first Distribution Date, 4.60813%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class B Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such Distribution
Date.
CLASS B PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, an
amount equal to the excess, if any, of (a) the sum of (i) the Certificate
Principal Balances of the Class A-1, Class A-2, Class A-3, Class M-1 and the
Class M-2 Certificates (after taking into account the payment of the Class A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount and
the Class M-2 Principal Distribution Amount on such Distribution Date), and (ii)
the Certificate Principal Balance of the Class B Certificates immediately prior
to such Distribution Date, over (b) the lesser of (x) 94.00% of the aggregate
Stated Principal Balances of the Mortgage Loans as of the last day of the
related Due Period and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period, less the
Overcollateralization Floor.
CLASS B-IO CERTIFICATE: Any Certificate designated as a "Class B-IO
Certificate" on the face thereof, in the form of Exhibit A-8 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class B-IO Certificates herein.
CLASS B-IO DISTRIBUTION AMOUNT: With respect to any Distribution Date,
an amount equal to the amount allocable to the Class B-IO Certificates as
provided in Section 5.06(c), note 3 for such Distribution Date.
CLASS M-1 CERTIFICATE: Any Certificate designated as a "Class M-1
Certificate" on the face thereof, in the form of Exhibit A-5 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class M-1 Certificates as set forth herein.
CLASS M-1 MARGIN: For any Distribution Date (i) on or prior to the
Optional Termination Date, 1.00% per annum and (ii) thereafter, 1.50% per annum.
CLASS M-1 PASS-THROUGH RATE: For the first Distribution Date, 3.10813%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class M-1 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such Distribution
Date.
CLASS M-1 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, an
amount equal to the excess, if any, of (a) the sum of (i) the Certificate
Principal Balances of the Class A-1, Class A-2 and Class A-3 Certificates (after
taking into account the payment of the Class A Principal Distribution Amount on
such Distribution Date), and (ii) the Certificate Principal Balance of the Class
M-1 Certificates immediately prior to such Distribution Date, over (b) the
lesser of (x) 84.50% of the aggregate Stated Principal Balances of the Mortgage
Loans as of the last day of the related Due Period and (y) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period, less the Overcollateralization Floor.
CLASS M-2 CERTIFICATE: Any Certificate designated as a "Class M-2
Certificate" on the face thereof, in the form of Exhibit A-6 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class M-2 Certificates as set forth herein.
CLASS M-2 MARGIN: For any Distribution Date (i) on or prior to the
Optional Termination Date, 1.50% per annum and (ii) thereafter, 2.25% per annum.
CLASS M-2 PASS-THROUGH RATE: For the first Distribution Date, 3.60813%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class M-2 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such Distribution
Date.
CLASS M-2 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, an
amount equal to the excess, if any, of (a) the sum of (i) the Certificate
Principal Balances of the Class A-1, Class A-2, Class A-3 and Class M-1
Certificates (after taking into account the payment of the Class A Principal
Distribution Amount and the Class M-1 Principal Distribution Amount on such
Distribution Date), and (ii) the Certificate Principal Balance of the Class M-2
Certificates immediately prior to such Distribution Date, over (b) the lesser of
(x) 91.00% of the aggregate Stated Principal Balances of the Mortgage Loans as
of the last day of the related Due Period and (y) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period, less
the Overcollateralization Floor.
CLASS R-1 CERTIFICATE: Any Certificate designated a "Class R-1
Certificate" on the face thereof, in substantially the form set forth in Exhibit
A-9 hereto, and evidencing ownership of the residual interest in REMIC I and
representing the right to the distributions provided for the Class R-1
Certificate as set forth herein.
CLASS R-2 CERTIFICATE: Any Certificate designated a "Class R-2
Certificate" on the face thereof, in substantially the form set forth in Exhibit
A-10 hereto, and evidencing ownership of the residual interest in REMIC II and
representing the right to the distributions provided for the Class R-2
Certificate as set forth herein.
CLASS R-3 CERTIFICATE: Any Certificate designated a "Class R-3
Certificate" on the face thereof, in substantially the form set forth in Exhibit
A-11 hereto, and evidencing ownership of the residual interest in REMIC III and
representing the right to the distributions provided for the Class R-3
Certificate as set forth herein.
CLOSING DATE: November 30, 2001.
CODE: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COMBINED LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage,
the numerator of which is the sum of (x) the original principal balance of the
related Mortgage Loan and (y) the outstanding principal balance at the date of
origination of the Mortgage Loan of any senior mortgage loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
COMPENSATING INTEREST: With respect to any Mortgage Loan, an amount,
not to exceed the Master Servicing Fee, to be applied by the Master Servicer
pursuant to Section 5.02 to the payment of a Prepayment Interest Shortfall on
such Mortgage Loan.
CORPORATE TRUST OFFICE: The office of the Trustee at which at any
particular time its corporate trust business is administered, which office, at
the date of the execution of this Agreement, is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities
Trust Services--BSABS 2001-3.
CURRENT INTEREST: As of any Distribution Date, with respect to
Certificates of each Class other than the Class B-IO Certificates and the
Residual Certificates, (i) the interest accrued on the Certificate Principal
Balance or Certificate Notional Balance, as applicable, during the related
Accrual Period at the applicable Pass-Through Rate plus any amount previously
distributed with respect to interest for such Certificate that has been
recovered as a voidable preference by a trustee in bankruptcy minus to the
extent allocated to such Class (ii) the sum of (a) any Prepayment Interest
Shortfall for such Distribution Date, to the extent not covered by Compensating
Interest and (b) any shortfalls resulting from application of the Relief Act
during the related Due Period, provided, however, that for purposes of
calculating Current Interest for any such Class, amounts specified in clause
(ii) hereof for any such Distribution Date shall be allocated first to the Class
B-IO Certificates and the Residual Certificates in reduction of amounts
otherwise distributable to such Certificates on such Distribution Date and then
any excess shall be allocated to each Class of Offered Certificates (other than
the Residual Certificates) pro rata based on the respective amounts of interest
accrued pursuant to clause (i) hereof for each such Class on such Distribution
Date.
CUT-OFF DATE: The close of business on November 1, 2001.
CUT-OFF DATE PRINCIPAL BALANCE: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date after
application of all Principal Prepayments received prior to the Cut-off Date and,
except with respect to Simple Interest Loans, scheduled payments of principal
due on or before the Cut-off Date, whether or not received (and with respect to
Simple Interest Loans, actual payments of principal received on or before the
Cut-off Date), but without giving effect to any installments of principal
received in respect of Due Dates after the Cut-off Date.
DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan that became final and
non-appealable, except such a reduction resulting from a Deficient Valuation or
any other reduction that results in a permanent forgiveness of principal.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under such Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any Scheduled
Payment that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court that is final and non-appealable
in a proceeding under the Bankruptcy Code.
DEFINITIVE CERTIFICATES: As defined in Section 6.06.
DELETED MORTGAGE LOAN: A Mortgage Loan replaced or to be replaced by a
Replacement Mortgage Loan.
DELINQUENCY EVENT: A Delinquency Event shall have occurred and be
continuing if at any time, (x) the three-month rolling average of the percent
equivalent of a fraction, the numerator of which is the aggregate Stated
Principal Balance of the Mortgage Loans that are 60 days or more Delinquent or
are in bankruptcy or foreclosure or are REO Properties, and the denominator of
which is the aggregate Stated Principal Balance of all of the Mortgage Loans as
of the last day of the related Due Period equals or exceeds (y) 50% of the
Senior Enhancement Percentage.
DELINQUENT: A Mortgage Loan is "delinquent" if any payment due thereon
is not made pursuant to the terms of such Mortgage Loan by the close of business
on the day such payment is scheduled to be due. A Mortgage Loan is "30 days
delinquent" if such payment has not been received by the close of business on
the corresponding day of the month immediately succeeding the month in which
such payment was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on the 31st day
of such month), then on the last day of such immediately succeeding month.
Similarly for "60 days delinquent," "90 days delinquent" and so on.
DENOMINATION: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Principal Balance of this Certificate".
DEPOSITOR: Bear Xxxxxxx Asset Backed Securities, Inc., a Delaware
corporation, or its successor in interest.
DEPOSITORY: The initial Depository shall be The Depository Trust
Company ("DTC"), the nominee of which is Cede & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York.
DEPOSITORY AGREEMENT: With respect to the Class of Book-Entry
Certificates, the agreement among the Depositor, the Trustee and the initial
Depository, dated as of the Closing Date, substantially in the form of Exhibit
I.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DETERMINATION DATE: With respect to any Distribution Date, the 15th
day of the month of such Distribution Date or, if such 15th day is not a
Business Day, the immediately preceding Business Day.
DISTRIBUTION ACCOUNT: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "LaSalle Bank National
Association, in trust for registered holders of Bear Xxxxxxx Asset Backed
Securities, Inc., Asset-Backed Certificates, Series 2001-3". Funds in the
Distribution Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
DISTRIBUTION ACCOUNT DEPOSIT DATE: As to any Distribution Date, the
Business Day immediately preceding such Distribution Date.
DISTRIBUTION DATE: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business Day,
the next succeeding Business Day, commencing in December 2001.
DUE DATE: As to any Mortgage Loan, the date in each month on which the
related Scheduled Payment is due, as set forth in the related Mortgage Note.
DUE PERIOD: With respect to any Distribution Date, the period from the
second day of the calendar month preceding the calendar month in which such
Distribution Date occurs through close of business on the first day of the
calendar month in which such Distribution Date occurs.
ELIGIBLE ACCOUNT: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company, the
long-term unsecured debt obligations and short-term unsecured debt obligations
of which (or, in the case of a depository institution or trust company that is
the principal subsidiary of a holding company, the debt obligations of such
holding company, so long as Xxxxx'x is not a Rating Agency) are rated by each
Rating Agency in one of its two highest long-term and its highest short-term
rating categories respectively, at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a 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 or (iv) any other account
acceptable to the Rating Agencies. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts maintained with
the Trustee.
EMC: EMC Mortgage Corporation, a Delaware corporation.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA RESTRICTED CERTIFICATE: Each of the Class A-1, Class X-0, Xxxxx
X-0, Class A-IO, Class M-1 Certificates, Class M-2 Certificates, Class B
Certificates, Class B-IO Certificates and Residual Certificates.
EVENT OF DEFAULT: As defined in Section 8.01 hereof.
EXCESS CASHFLOW: With respect to any Distribution Date, an amount, if
any, equal to the sum of (a) the Excess Overcollateralization Amount and (b) the
Remaining Excess Spread, in each case for such Distribution Date.
EXCESS LIQUIDATION PROCEEDS: To the extent not required by law to be
paid to the related Mortgagor, the excess, if any, of any Liquidation Proceeds
with respect to a Mortgage Loan over the Stated Principal Balance of such
Mortgage Loan and accrued and unpaid interest at the related Mortgage Rate
through the last day of the month in which the Mortgage Loan has been
liquidated.
EXCESS OVERCOLLATERALIZATION AMOUNT: With respect to any Distribution
Date, the lesser of (i) Principal Funds and (ii) the excess, if any, of the
Overcollateralization Amount over the Specified Overcollateralization Amount, in
each case for such Distribution Date.
EXCESS SPREAD: With respect to any Distribution Date, the excess, if
any, of (i) the Interest Funds for such Distribution Date over (ii) the sum of
Current Interest on the Offered Certificates and Interest Carry Forward Amounts
on the Class A Certificates, in each case for such Distribution Date.
EXTRA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any Distribution
Date, the lesser of (i) the excess, if any, of the Specified
Overcollateralization Amount for such Distribution Date over the
Overcollateralization Amount for such Distribution Date (after giving effect to
distributions of principal on the Certificates other than any Extra Principal
Distribution Amount) and (ii) the Excess Spread for such Distribution Date.
XXXXXX MAE: Xxxxxx Xxx (formerly, Federal National Mortgage
Association), or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
XXXXXXX MAC: Federal Home Loan Mortgage Corporation, or any successor
thereto.
GROSS MARGIN: With respect to each Mortgage Loan that bears an
adjustable rate of interest, the fixed percentage set forth in the related
Mortgage Note and indicated on the Mortgage Loan Schedule which percentage is
added to the related Index on each Interest Adjustment Date to determine
(subject to rounding, the Minimum Lifetime Mortgage Rate, the Maximum Lifetime
Mortgage Rate and the Periodic Rate Cap, each as applicable) the Mortgage Rate
until the next succeeding Interest Adjustment Date.
INDEX: With respect to each Mortgage Loan that bears an adjustable
rate of interest, the index set forth in the related Mortgage Note and indicated
on the Mortgage Loan Schedule, by reference to which the related Mortgage Rate
will be adjusted from time to time.
INITIAL CERTIFICATE PRINCIPAL BALANCE: With respect to any
Certificate, the Certificate Principal Balance of such Certificate or any
predecessor Certificate on the Closing Date.
INITIAL OVERCOLLATERALIZATION AMOUNT: $777.00.
INSURANCE POLICY: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect with respect to such Mortgage Loan, including any replacement policy
or policies for any such insurance policies.
INSURANCE PROCEEDS: Proceeds paid in respect of the Mortgage Loans
pursuant to any Insurance Policy, to the extent such proceeds are payable to the
mortgagee under the Mortgage, the Master Servicer or the trustee under the deed
of trust and are not applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with the procedures that the
Master Servicer would follow in servicing mortgage loans held for its own
account, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
INSURED EXPENSES: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
INTEREST ADJUSTMENT DATE: With respect to each Mortgage Loan that
bears an adjustable rate of interest, the date set forth in the related Mortgage
Note and indicated on the Mortgage Loan Schedule, on which the related Mortgage
Rate is subject to adjustment.
INTEREST CARRYFORWARD AMOUNT: As of any Distribution Date and with
respect to each Class of Certificates other than the Class B-IO Certificates and
the Residual Certificates, the sum of (i) the excess of (a) the Current Interest
for such Class with respect to prior Distribution Dates over (b) the amount
actually distributed to such Class of Certificates with respect to interest on
such prior Distribution Dates and (ii) interest thereon (to the extent permitted
by applicable law) at the applicable Pass-Through Rate for such Class for the
related Accrual Period including the Accrual Period relating to such
Distribution Date.
INTEREST DETERMINATION DATE: With respect to the Class A, Class M-1,
Class M-2 and Class B Certificates and for the first Accrual Period, November
26, 2001. With respect to the Class X-0, Xxxxx X-0, Class A-3, Class M-1, Class
M-2 and Class B Certificates and any Accrual Period thereafter, the second LIBOR
Business Day preceding the commencement of such Accrual Period.
INTEREST FUNDS: For any Distribution Date, the sum, without
duplication, of (a) all scheduled interest during the related Due Period with
respect to the Mortgage Loans less the Master Servicing Fee, (b) all Advances
relating to interest with respect to the related Mortgage Loans made on or prior
to the Master Servicer Advance Date, (c) all Compensating Interest with respect
to the Mortgage Loans required to be remitted pursuant to this Agreement with
respect to such Distribution Date, (d) Liquidation Proceeds with respect to the
related Mortgage Loans collected during the related Prepayment Period (to the
extent such Liquidation Proceeds relate to interest), (e) all amounts relating
to interest with respect to each Mortgage Loan repurchased by the Seller or the
Master Servicer pursuant to Sections 2.02, 2.03 and 3.20 and (f) all amounts in
respect of interest paid by the Master Servicer pursuant to Section 10.01, in
each case to the extent remitted by the Master Servicer to the Distribution
Account pursuant to this Agreement, minus all amounts relating to interest
reimbursed pursuant to Sections 3.05 and 3.08.
INTEREST RATE CAP: For any Distribution Date and with respect to (a)
all Classes of Certificates that bear interest (other than the Class A-IO
Certificates) (i) for so long as the Class A-IO Certificates are outstanding,
the weighted average of the Net Mortgage Rates of the Mortgage Loans MINUS the
interest payable to the Class A-IO Certificates with respect to the related
Accrual Period (expressed as a per annum rate calculated based on the aggregate
mortgage loan balance) and (ii) after the Class A-IO Certificates are no longer
outstanding, the weighted average of the Net Mortgage Rates of the Mortgage
Loans, adjusted (with respect to each such Class of Certificates) to an
effective rate reflecting the accrual of interest on an actual/360 basis and (b)
the Class A-IO Certificates, the weighted average of the Net Mortgage Rates of
the Mortgage Loans.
LATEST POSSIBLE MATURITY DATE: The Distribution Date occurring in
October 2032 which is the Distribution Date occurring 13 months following the
final scheduled maturity date of the Mortgage Loan in the Trust Fund having the
latest scheduled maturity date as of the Cut-off Date. For purposes of the
Treasury Regulations under Code section 860A through 860G, the latest possible
maturity date of each regular interest issued by REMIC I, REMIC II and REMIC III
shall be the Latest Possible Maturity Date.
LIBOR BUSINESS DAY: Any day on which banks in the London, England and
New York City, U.S.A. are open and conducting transactions in foreign currency
and exchange.
LIQUIDATED LOAN: With respect to any Distribution Date, a defaulted
Mortgage Loan that has been liquidated through deed-in-lieu of foreclosure,
foreclosure sale, trustee's sale or other realization as provided by applicable
law governing the real property subject to the related Mortgage and any security
agreements and as to which the Master Servicer has certified (in accordance with
Section 3.07) in the related Prepayment Period that it has received all amounts
it expects to receive in connection with such liquidation.
LIQUIDATION PROCEEDS: Amounts, other than Insurance Proceeds, received
in connection with the partial or complete liquidation of a Mortgage Loan,
whether through trustee's sale, foreclosure sale or otherwise, or in connection
with any condemnation or partial release of a Mortgaged Property and any other
proceeds received with respect to an REO Property, less the sum of related
unreimbursed Advances, Master Servicing Fees and Servicing Advances and all
expenses of liquidation, including property protection expenses and foreclosure
and sale costs, including court and reasonable attorneys fees.
LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Mortgage
Loan and the denominator of which is the Appraised Value of the related
Mortgaged Property.
MASTER SERVICER: EMC, in its capacity as master servicer hereunder,
and its successors and assigns.
MASTER SERVICER ADVANCE DATE: As to any Distribution Date, on or
before 1:00 p.m. Central time on the Business Day immediately preceding such
Distribution Date.
MASTER SERVICING FEE: As to each Mortgage Loan and any Distribution
Date, an amount equal to 1/12th of the Master Servicing Fee Rate multiplied by
the Stated Principal Balance of such Mortgage Loan as of the last day of the
related Due Period or, in the event of any payment of interest that accompanies
a Principal Prepayment in full during the related Due Period made by the
Mortgagor immediately prior to such prepayment, interest at the Master Servicing
Fee Rate on the Stated Principal Balance of such Mortgage Loan for the period
covered by such payment of interest.
MASTER SERVICING FEE RATE: With respect to each Mortgage Loan, the per
annum rate of 0.50%.
MAXIMUM LIFETIME MORTGAGE RATE: As to each Mortgage Loan that bears an
adjustable rate of interest, the rate, if any, set forth in the related Mortgage
Note and indicated on the Mortgage Loan Schedule, that is the maximum level to
which a Mortgage Rate can adjust in accordance with its terms, regardless of the
change in the applicable Index.
MINIMUM LIFETIME MORTGAGE RATE: As to each Mortgage Loan that bears an
adjustable rate of interest, the rate, if any, set forth in the related Mortgage
Note and indicated on the Mortgage Loan Schedule, that is the minimum level to
which a Mortgage Rate can adjust in accordance with its terms, regardless of the
change in the applicable Index.
MONTHLY STATEMENT: The statement delivered to the Certificateholders
pursuant to Section 5.05.
MOODY'S: Xxxxx'x Investors Service, Inc.
MORTGAGE: The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest, or creating a second lien on
or second priority ownership interest, as applicable, in an estate in fee simple
in real property securing a Mortgage Note.
MORTGAGE FILE: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this Agreement.
MORTGAGE LOANS: Such of the Mortgage Loans transferred and assigned to
the Trustee pursuant to the provisions hereof, as from time to time are held as
a part of the Trust Fund (including any REO Property), the mortgage loans so
held being identified in the Mortgage Loan Schedule, notwithstanding foreclosure
or other acquisition of title of the related Mortgaged Property. Any mortgage
loan that was intended by the parties hereto to be transferred to the Trust Fund
as indicated by such Mortgage Loan Schedule which is in fact not so transferred
for any reason including, without limitation, a breach of the representation
contained in Section 2.03(b)(v) hereof, shall continue to be a Mortgage Loan
hereunder until the Purchase Price with respect thereto has been paid to the
Trust Fund.
MORTGAGE LOAN PURCHASE PRICE: The price, calculated as set forth in
Section 10.01, to be paid in connection with the repurchase of the Mortgage
Loans pursuant to Section 10.01.
MORTGAGE LOAN SCHEDULE: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the deletion of Deleted Mortgage
Loans and the addition of Replacement Mortgage Loans pursuant to the provisions
of this Agreement) transferred to the Trustee as part of the Trust Fund and from
time to time subject to this Agreement; the initial Mortgage Loan Schedule is
attached hereto as Exhibit B and sets forth the following information with
respect to each Mortgage Loan:
(i) the loan number;
(ii) the Mortgage Rate in effect as of the Cut-off Date;
(iii) the Net Mortgage Rate in effect as of the Cut-off Date;
(iv) the maturity date;
(v) the original principal balance;
(vi) the Cut-off Date Principal Balance;
(vii) the original term;
(viii) the remaining term;
(ix) the property type;
(x) if it is a second lien on the related Mortgaged Property;
(xi) if applicable, that such Mortgage Loan is a Simple Interest
Loan;
(xii) if applicable, that such Mortgage Loan is a Balloon Loan;
(xiii) the applicable Index (with respect to adjustable rate
Mortgage Loans);
(xiv) the Gross Margin, if applicable;
(xv) the intervals between Interest Adjustment Dates, if
applicable;
(xvi) the next succeeding Interest Adjustment Date, if
applicable;
(xvii) the Periodic Rate Cap, if applicable;
(xviii) the Minimum Lifetime Mortgage Rate, if applicable; and
(xix) the Maximum Lifetime Mortgage Rate, if applicable.
Such schedule shall also set forth the total of the amounts described under (vi)
above for all of the Mortgage Loans.
MORTGAGE NOTE: The original executed note or other evidence of
indebtedness of a Mortgagor under a Mortgage Loan.
MORTGAGE RATE: The annual rate of interest borne by a Mortgage Note.
MORTGAGED PROPERTY: The underlying property securing a Mortgage Loan.
MORTGAGOR: The obligor on a Mortgage Note.
NET MORTGAGE RATE: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate for such Mortgage Loan less the sum of (i)
the Master Servicing Fee Rate and (ii) the Trustee Fee Rate.
NON-BOOK-ENTRY CERTIFICATE: Any Certificate other than a Book-Entry
Certificate.
NONRECOVERABLE ADVANCE: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not or, in the case of a proposed advance, would not,
be ultimately recoverable by it from payments on the Mortgage Loan, related
Liquidation Proceeds or otherwise.
OFFERED CERTIFICATES: The Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-IO Certificates, Class M-1
Certificates, Class M-2 Certificates, Class B Certificates and Residual
Certificates.
OFFICER'S CERTIFICATE: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Vice President (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or one
of the assistant treasurers or assistant secretaries of the Depositor or the
Master Servicer (or any other officer customarily performing functions similar
to those performed by any of the above designated officers and also to whom,
with respect to a particular matter, such matter is referred because of such
officer's knowledge of and familiarity with a particular subject) or (ii), if
provided for in this Agreement, signed by a Servicing Officer, as the case may
be, and delivered to the Depositor, the Seller and/or the Trustee, as the case
may be, as required by this Agreement.
ONE-MONTH LIBOR: With respect to any Accrual Period, the rate
determined by the Trustee on the related Interest Determination Date on the
basis of the rate for U.S. dollar deposits for one month that appears on
Telerate Screen Page 3750 as of 11:00 a.m. (London time) on such Interest
Determination Date; provided that the parties hereto acknowledge that One-Month
LIBOR for the first Accrual Period shall equal 2.10813% per annum. If such rate
does not appear on such page (or such other page as may replace that page on
that service, or if such service is no longer offered, such other service for
displaying One-Month LIBOR or comparable rates as may be reasonably selected by
the Trustee), One-Month LIBOR for the applicable Accrual Period will be the
Reference Bank Rate. If no such quotations can be obtained by the Trustee and no
Reference Bank Rate is available, One-Month LIBOR will be One-Month LIBOR
applicable to the preceding Accrual Period.
OPINION OF COUNSEL: A written opinion of counsel, who may be counsel
for the Depositor or the Master Servicer, reasonably acceptable to each
addressee of such opinion; provided that with respect to Section 7.04 or 11.01,
or the interpretation or application of the REMIC Provisions, such counsel must
(i) in fact be independent of the Depositor and the Master Servicer, (ii) not
have any direct financial interest in the Depositor or the Master Servicer or in
any affiliate of either, and (iii) not be connected with the Depositor or the
Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
OPTIONAL TERMINATION: The termination of the Trust Fund created
hereunder as a result of the purchase of all of the Mortgage Loans and any REO
Property pursuant to the last sentence of Section 10.01 hereof.
OPTIONAL TERMINATION DATE: The Distribution Date on which the Stated
Principal Balance of all of the Mortgage Loans is equal to or less than 10% of
the Cut-off Date Principal Balance of all of the Mortgage Loans.
ORIGINAL VALUE: The value of the property underlying a Mortgage Loan
based, in the case of the purchase of the underlying Mortgaged Property, on the
lower of an appraisal or the sales price of such property or, in the case of a
refinancing, on an appraisal.
ORIGINATOR: Any of the entities which either originated or acquired a
Mortgage Loan and transferred such Mortgage Loan to the Seller.
OTS: The Office of Thrift Supervision.
OUTSTANDING: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(a) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to this
Agreement.
OUTSTANDING MORTGAGE LOAN: As of any date of determination, a Mortgage
Loan with a Stated Principal Balance greater than zero that was not the subject
of a Principal Prepayment in full, and that did not become a Liquidated Loan,
prior to the end of the related Prepayment Period.
OVERCOLLATERALIZATION AMOUNT: With respect to any Distribution Date,
the excess, if any, of (a) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period over (b) the sum of
the Certificate Principal Balances of the Certificates (after taking into
account the payment of principal) on such Certificates on such Distribution
Date.
OVERCOLLATERALIZATION FLOOR: 0.50% of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans, i.e. $909,674.
OWNERSHIP INTEREST: As to any Certificate, any ownership interest in
such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
PASS-THROUGH RATE: With respect to each Class of Certificates, other
than the Class B-IO Certificates and the Residual Certificates, the applicable
interest rate for each such Class subject to the applicable Interest Rate Cap as
set forth in Section 6.01.
PERCENTAGE INTEREST: With respect to any Certificate of a specified
Class, the Percentage Interest set forth on the face thereof or the percentage
obtained by dividing the Denomination of such Certificate by the aggregate of
the Denominations of all Certificates of the such Class.
PERIODIC RATE CAP: As to each Mortgage Loan that bears an adjustable
rate of interest, the rate, if any, set forth in the related Mortgage Note and
indicated on the Mortgage Loan Schedule, that is the maximum adjustment that can
be made to a Mortgage Rate on each Interest Adjustment Date in accordance with
its terms, regardless of the change in the applicable Index.
PERMITTED INVESTMENTS: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the United
States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest
long-term debt rating of each Rating Agency, or such lower rating as will
not result in the downgrading or withdrawal of the ratings then assigned to
the Certificates by each Rating Agency;
(iii) [Reserved];
(iv) commercial or finance company paper which is then receiving the
highest commercial or finance company paper rating of each Rating Agency,
or such lower rating as will not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by each Rating Agency;
(v) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long term unsecured
debt obligations of such depository institution or trust company (or in the
case of the principal depository institution in a holding company system,
the commercial paper or long-term unsecured debt obligations of such
holding company, but only if Xxxxx'x is not a Rating Agency) are then rated
one of the two highest long-term and the highest short-term ratings of each
such Rating Agency for such securities, or such lower ratings as will not
result in the downgrading or withdrawal of the rating then assigned to the
Certificates by any Rating Agency;
(vi) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(vii) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation containing, at the time of the issuance of
such agreements, such terms and conditions as will not result in the
downgrading or withdrawal of the rating then assigned to the Certificates
by any such Rating Agency;
(viii) repurchase obligations with respect to any security described
in clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal) described in
clause (v) above;
(ix) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face amount
thereof) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state thereof
which, at the time of such investment, have one of the two highest long
term ratings of each Rating Agency (except if the Rating Agency is Moody's,
such rating shall be the highest commercial paper rating of Moody's for any
such securities), or such lower rating as will not result in the
downgrading or withdrawal of the rating then assigned to the Certificates
by any Rating Agency, as evidenced by a signed writing delivered by each
Rating Agency;
(x) interests in any money market fund (including any such fund
managed or advised by the Trustee or any affiliate thereof) which at the
date of acquisition of the interests in such fund and throughout the time
such interests are held in such fund has the highest applicable long term
rating by each Rating Agency or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by each Rating Agency;
(xi) short term investment funds sponsored by any trust company or
national banking association incorporated under the laws of the United
States or any state thereof (including any such fund managed or advised by
the Trustee or any affiliate thereof) which on the date of acquisition has
been rated by each Rating Agency in their respective highest applicable
rating category or such lower rating as will not result in the downgrading
or withdrawal of the ratings then assigned to the Certificates by each
Rating Agency; and
(xii) such other investments having a specified stated maturity and
bearing interest or sold at a discount acceptable to each Rating Agency as
will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any Rating Agency, as evidenced by a signed
writing delivered by each Rating Agency;
provided, that no such instrument shall be a Permitted Investment if
such instrument (i) evidences the right to receive interest only payments with
respect to the obligations underlying such instrument, (ii) is purchased at a
premium or (iii) is purchased at a deep discount; provided further that no such
instrument shall be a Permitted Investment (A) if such instrument evidences
principal and interest payments derived from obligations underlying such
instrument and the interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (B) if it may be redeemed at a price below the
purchase price (the foregoing clause (B) not to apply to investments in units of
money market funds pursuant to clause (vii) above); provided further that no
amount beneficially owned by any REMIC (including, without limitation, any
amounts collected by the Master Servicer but not yet deposited in any Account)
may be invested in investments (other than money market funds) treated as equity
interests for Federal income tax purposes, unless the Master Servicer shall
receive an Opinion of Counsel, at the expense of the Master Servicer, to the
effect that such investment will not adversely affect the status of any such
REMIC as a REMIC under the Code or result in imposition of a tax on any such
REMIC. Permitted Investments that are subject to prepayment or call may not be
purchased at a price in excess of par.
PERMITTED TRANSFEREE: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Residual Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership (other than a
partnership that has any direct or indirect foreign partners) or other entity
(treated as a corporation or a partnership for federal income tax purposes),
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, an estate whose income from sources without
the United States is includible in gross income for United States federal income
tax purposes regardless of its connection with the conduct of a trade or
business within the United States, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have authority to control all
substantial decisions of the trustor and (vi) any other Person so designated by
the Trustee based upon an Opinion of Counsel (which shall not be an expense of
the Trustee) that states that the Transfer of an Ownership Interest in a
Residual Certificate to such Person may cause the Trust Fund to fail to qualify
as a REMIC at any time that any Certificates are Outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
PREPAYMENT ASSUMPTION: The applicable rate of prepayment, as described
in the Prospectus Supplement relating to each Class of Offered Certificates.
PREPAYMENT CHARGE: Any prepayment premium, penalty or charge payable
by a Mortgagor in connection with any Principal Prepayment on a Mortgage Loan
pursuant to the terms of the related Mortgage Note.
PREPAYMENT INTEREST SHORTFALL: With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a partial Principal Prepayment, a
Principal Prepayment in full, or that became a Liquidated Loan during the
related Prepayment Period, (other than a Principal Prepayment in full resulting
from the purchase of a Mortgage Loan pursuant to Section 2.02, 2.03, 3.20 or
10.01 hereof), the amount, if any, by which (i) one month's interest at the
applicable Net Mortgage Rate on the Stated Principal Balance of such Mortgage
Loan immediately prior to such prepayment (or liquidation) or in the case of a
partial Principal Prepayment on the amount of such prepayment (or Liquidation
Proceeds) exceeds (ii) the amount of interest paid or collected in connection
with such Principal Prepayment or such Liquidation Proceeds.
PREPAYMENT PERIOD: As to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs.
PRIMARY MORTGAGE INSURANCE POLICY: Any primary mortgage guaranty
insurance policy issued in connection with a Mortgage Loan which provides
compensation to a Mortgage Note holder in the event of default by the obligor
under such Mortgage Note or the related security instrument, if any or any
replacement policy therefor through the related Accrual Period for such Class
relating to a Distribution Date.
PRINCIPAL DISTRIBUTION AMOUNT: With respect to each Distribution Date,
an amount equal to (x) the Principal Funds for such Distribution Date plus (y)
any Extra Principal Distribution Amount for such Distribution Date minus (z) any
Excess Overcollateralization Amount for such Distribution Date.
PRINCIPAL FUNDS: With respect to any Distribution Date, the sum,
without duplication, of (a) all scheduled principal (or with respect to Simple
Interest Loans, actual principal) collected during the related Due Period, (b)
all Advances relating to principal (except with respect to Simple interest
Loans) made on or before the Master Servicer Advance Date, (c) Principal
Prepayments exclusive of prepayment charges or penalties collected during the
related Prepayment Period, (iii) the Stated Principal Balance of each Mortgage
Loan that was repurchased by the Seller or the Master Servicer pursuant to
Sections 2.02, 2.03 or 3.20, (d) the aggregate of all Substitution Adjustment
Amounts for the related Determination Date in connection with the substitution
of Mortgage Loans pursuant to Section 2.03(c), (e) amounts in respect of
principal paid by the Master Servicer pursuant to Section 10.01 and (f) all
Liquidation Proceeds collected during the related Prepayment Period (to the
extent such Liquidation Proceeds relate to principal), in each case to the
extent remitted by the Master Servicer to the Distribution Account pursuant to
this Agreement, minus all amounts relating to principal reimbursed pursuant to
Sections 3.05 and 3.08.
PRINCIPAL PREPAYMENT: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including loans
purchased or repurchased under Sections 2.02, 2.03, 3.20 and 10.01 hereof) that
is received in advance of its scheduled Due Date and is not accompanied by an
amount as to interest representing scheduled interest due on any date or dates
in any month or months subsequent to the month of prepayment. Partial Principal
Prepayments shall be applied by the Master Servicer in accordance with the terms
of the related Mortgage Note.
PROSPECTUS SUPPLEMENT: The Prospectus Supplement dated November 27,
2001 relating to the public offering of the Offered Certificates.
PROTECTED ACCOUNT: One or more accounts established and maintained by
the Master Servicer with respect to receipts on the Mortgage Loans and REO
Property in accordance with Section 3.05 hereto.
PUD: A Planned Unit Development.
PURCHASE PRICE: With respect to any Mortgage Loan (x) required to be
repurchased by the Seller pursuant to Section 2.02 or 2.03 hereof or (y) that
the Master Servicer has a right to purchase pursuant to Section 3.20 hereof, an
amount equal to the sum of (i) 100% of the outstanding principal balance of the
Mortgage Loan as of the date of such purchase plus (ii) accrued interest thereon
at the applicable Mortgage Rate through the first day of the month in which the
Purchase Price is to be distributed to Certificateholders, reduced by any
portion of the Master Servicing Fee, Servicing Advances and Advances payable to
the purchaser of the Mortgage Loan.
RATING AGENCY: Each of Xxxxx'x and S&P. If any such organization or
its successor is no longer in existence, "Rating Agency" shall be a nationally
recognized statistical rating organization, or other comparable Person,
designated by the Depositor, notice of which designation shall be given to the
Trustee. References herein to a given rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
REALIZED LOSS: With respect to each Liquidated Loan, an amount (not
less than zero or more than the Stated Principal Balance of the Mortgage Loan)
as of the date of such liquidation, equal to (i) the Stated Principal Balance of
such Liquidated Loan as of the date of such liquidation, minus (ii) the
Liquidation Proceeds, if any, received in connection with such liquidation
during the month in which such liquidation occurs, to the extent applied as
recoveries of principal of the Liquidated Loan. With respect to each Mortgage
Loan that has become the subject of a Deficient Valuation, (i) if the value of
the related Mortgaged Property was reduced below the principal balance of the
related Mortgage Note, the amount by which the value of the Mortgaged Property
was reduced below the principal balance of the related Mortgage Note, and (ii)
if the principal amount due under the related Mortgage Note has been reduced,
the difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation plus any reduction in the
interest component of the Scheduled Payments. With respect to each Mortgage Loan
that has become the subject of a Debt Service Reduction and any Distribution
Date, the amount, if any, by which the related Scheduled Payment was reduced.
With respect to each Mortgage Loan that has become the subject of a Servicing
Modification, a loss resulting from such Servicing Modification.
RECORD DATE: With respect to (A) the Class A-IO, Class B-IO and the
Residual Certificates and (i) the first Distribution Date, the Closing Date and
(ii) with respect to any other Distribution Date, the close of business on the
last Business Day of the month preceding the month in which such Distribution
Date occurs; and (B) the Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2
and Class B Certificates and any Distribution Date, so long as such Certificates
are Book-Entry Certificates, the Business Day preceding such Distribution Date,
and otherwise, the close of business on the last Business Day of the month
preceding the month in which such Distribution Date occurs.
REFERENCE BANK RATE: With respect to any Accrual Period, the
arithmetic mean (rounded upwards, if necessary, to the nearest whole multiple of
0.03125%) of the offered rates for United States dollar deposits for one month
that are quoted by the Reference Banks as of 11:00 a.m., New York City time, on
the related Interest Determination Date to prime banks in the London interbank
market for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of all Certificates which bear an adjustable rate
of interest on such Interest Determination Date, provided that at least two such
Reference Banks provide such rate. If fewer than two offered rates appear, the
Reference Bank Rate will be the arithmetic mean (rounded upwards, if necessary,
to the nearest whole multiple of 0.03125%) of the rates quoted by one or more
major banks in New York City, selected by the Trustee, with the cooperation of
the Depositor, as of 11:00 a.m., New York City time, on such date for loans in
U.S. dollars to leading European banks for a period of one month in amounts
approximately equal to the aggregate Certificate Principal Balance of the
Certificates which bear an adjustable rate of interest on such Interest
Determination Date.
REFERENCE BANKS: Barclays Bank PLC, Citibank, N.A. and Deutsche Bank
AG, 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, with the
cooperation of the Depositor, which are engaged in transactions in Eurodollar
deposits in the international Eurocurrency market (i) with an established place
of business in London, England, (ii) not controlling, under the control of or
under common control with the Depositor, the Seller, the Master Servicer or any
affiliate thereof and (iii) which have been designated as such by the Trustee.
REGULAR CERTIFICATE: Any Certificate other than a Residual
Certificate.
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
REMAINING EXCESS SPREAD: With respect to any Distribution Date, the
Excess Spread less any Extra Principal Distribution Amount, in each case for
such Distribution Date.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC I: The segregated pool of assets described in Section 5.06(a).
REMIC I CERTIFICATES: The REMIC I Regular Interests and the Class R-1
Certificate.
REMIC I REGULAR INTERESTS: As defined in Section 5.06(b).
REMIC II: The segregated pool of assets described in Section 5.06(a).
REMIC II CERTIFICATES: The REMIC II Regular Interests and the Class
R-2 Certificate.
REMIC II REGULAR INTERESTS: As defined in Section 5.06(c).
REMIC III: The segregated pool of assets described in Section 5.06(a).
REMIC III CERTIFICATES: The REMIC III Regular Interests and the Class
R-3 Certificate.
REMIC III REGULAR INTERESTS: As defined in Section 5.06(d).
REMIC PROVISIONS: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed, temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REMITTANCE REPORT: As defined in Section 5.04(c).
REO PROPERTY: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
REPLACEMENT MORTGAGE LOAN: A Mortgage Loan or Mortgage Loans in the
aggregate substituted by the Seller for a Deleted Mortgage Loan, which must, on
the date of such substitution, as confirmed in a Request for Release, (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
less than 90% of the Stated Principal Balance of the Deleted Mortgage Loan; (ii)
have a Mortgage Rate not less than or more than 1% per annum higher than the
Mortgage Rate of the Deleted Mortgage Loan; (iii) have the same or higher credit
quality characteristics than that of the Deleted Mortgage Loan; (iv) have a
Combined Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan;
and (vi) have a remaining term to maturity no greater than (and not more than
one year less than) that of the Deleted Mortgage Loan; (vii) not permit
conversion of the Mortgage Rate from a fixed rate to a variable rate; (viii)
[Reserved]; (ix) have the same lien priority as the Deleted Mortgage Loan; (x)
constitute the same occupancy type as the Deleted Mortgage Loan or be owner
occupied; (xi) be current in payment of principal and interest as of the date of
substitution; (xii) as to which the payment terms do not vary in any material
respect from the payment terms of the Mortgage Loan for which it is to be
substituted; (xiii) if such Deleted Mortgage Loan bears an adjustable rate of
interest, have a Gross Margin, Periodic Rate Cap and Maximum Lifetime Mortgage
Rate no less than those of such Deleted Mortgage Loan, have the same Index and
interval between Interest Adjustment Dates, and a Minimum Lifetime Mortgage Rate
no lower than that of such Deleted Mortgage Loan; and (xiv) comply with each
representation and warranty set forth in Section 2.03 hereof.
REQUEST FOR RELEASE: The Request for Release to be submitted by the
Seller or the Master Servicer to the Trustee, substantially in the form of
Exhibit H. Each Request for Release furnished to the Trustee by the Seller or
the Master Servicer shall be in duplicate and shall be executed by a Servicing
Officer (or, if furnished electronically to the Trustee, shall be deemed to have
been sent and executed by a Servicing Officer) of the Seller or the Master
Servicer, as applicable.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under this
Agreement.
RESIDUAL CERTIFICATES: The Class R-1 Certificates, Class R-2
Certificates and Class R-3 Certificates.
RESPONSIBLE OFFICER: With respect to the Trustee, any Vice President,
any Assistant Vice President, the Secretary, any Assistant Secretary, any Trust
Officer, any other officer customarily performing functions similar to those
performed by any of the above designated officers or other officers of the
Trustee specified by the Trustee, as 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.
S&P: Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc.
SCHEDULED PAYMENT: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage
Loan.
SECURITIES ACT: The Securities Act of 1933, as amended.
SELLER: EMC, in its capacity as seller of the Mortgage Loans to the
Depositor.
SENIOR ENHANCEMENT PERCENTAGE: As to each Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the sum of (i)
the aggregate of the Certificate Principal Balances of the Class M-1, Class M-2
and Class B Certificates and (ii) the Overcollateralization Amount, in each case
after taking into account the distribution of the related Principal Distribution
Amounts on such Distribution Date, and the denominator of which is the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period.
SERVICING ACCOUNT: As defined in Section 3.06 hereof.
SERVICING ADVANCES: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable legal fees) incurred in the
performance by the Master Servicer of its servicing obligations under this
Agreement, including, but not limited to, the cost of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of any REO Property (including, without limitation, realtor's
commissions) and (iv) compliance with any obligations under Section 3.10 hereof
to cause insurance to be maintained.
SERVICING MODIFICATION: With respect to any Mortgage Loan that is in
default or, in the reasonable judgment of the Master Servicer, as to which
default is reasonably foreseeable, any modification which is effected by the
Master Servicer in accordance with this Agreement which results in any change in
the outstanding Stated Principal Balance, any change in the Mortgage Rate or any
extension of the term of such Mortgage Loan.
SERVICING OFFICER: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
SIMPLE INTEREST LOAN: A Mortgage Loan that provides for daily accrual
of interest and identified as such on the Mortgage Loan Schedule.
SPECIFIED OVERCOLLATERALIZATION AMOUNT: 3.00% of the Cut-off Date
Principal Balance of the Mortgage Loans, i.e. 5,458,043.
STARTUP DAY: The Startup Day for each REMIC formed hereunder shall be
the Closing Date.
STATED PRINCIPAL BALANCE: With respect to any Mortgage Loan (other
than a Simple Interest Loan) or related REO Property and any Distribution Date,
the Cut-off Date Principal Balance thereof minus the sum of (i) the principal
portion of the Scheduled Payments due (or, with respect to Simple Interest
Loans, the principal portion of payments actually made) with respect to such
Mortgage Loan during each Due Period ending prior to such Distribution Date (and
other than with respect to Simple Interest Loans irrespective of any delinquency
in their payment), (ii) all Principal Prepayments with respect to such Mortgage
Loan received prior to or during the related Prepayment Period, and all
Liquidation Proceeds to the extent applied by the Master Servicer as recoveries
of principal in accordance with Section 3.13 with respect to such Mortgage Loan,
that were received by Master Servicer as of the close of business on the last
day of the Prepayment Period related to such Distribution Date, and (iii) any
Realized Losses on such Mortgage Loan incurred during the related Prepayment
Period. The Stated Principal Balance of a Liquidated Loan equals zero.
STEPDOWN DATE: The earlier to occur of (i) the Distribution Date on
which the aggregate Certificate Principal Balances of the Class A-1, Class A-2
and Class A-3 Certificates have been reduced to zero and (ii) the later to occur
of (a) the Distribution Date in December 2004 and (b) the first Distribution
Date on which the sum of the aggregate Certificate Principal Balance of the
Class M-1 Certificates, Class M-2 Certificates and the Class B Certificates plus
the Overcollateralization Amount for such Distribution Date divided by the sum
of the Stated Principal Balances of the Mortgage Loans as of the last day of the
related Due Period is greater than or equal to 27.00%.
SUBORDINATED CERTIFICATES: The Class M-1 Certificates, Class M-2
Certificates, Class B Certificates and Class B-IO Certificates.
SUBSTITUTION ADJUSTMENT AMOUNT: The meaning ascribed to such term
pursuant to Section 2.03(c).
SUCCESSOR MASTER SERVICER: The meaning ascribed to such term pursuant
to Section 8.01.
TAX MATTERS PERSON: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)-1T. The holder of the greatest Percentage
Interest in a Class of Residual Certificates shall be the Tax Matters Person for
the related REMIC. The Trustee, or any successor thereto or assignee thereof
shall serve as tax administrator hereunder and as agent for the related Tax
Matters Person.
TRANSFER AFFIDAVIT: As defined in Section 6.02(c).
TRANSFER: Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
TRIGGER EVENT: With respect to any Distribution Date after the
Stepdown Date, a Trigger Event exists if a Delinquency Event shall have occurred
and be continuing.
TRUST FUND: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest accruing and principal due (or in the
case of Simple Interest Loan, received) with respect thereto after the Cut-off
Date to the extent not applied in computing the Cut-off Date Principal Balance
thereof; (ii) the Distribution Account and each Protected Account maintained by
the Master Servicer, and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) property that secured a Mortgage
Loan and has been acquired by foreclosure, deed in lieu of foreclosure or
otherwise; (iv) the mortgagee's rights under the Insurance Policies with respect
to the Mortgage Loans; and (v) all proceeds of the foregoing, including proceeds
of conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
TRUSTEE: LaSalle Bank National Association, a national banking
association, not in its individual capacity, but solely in its capacity as
trustee for the benefit of the Certificateholders under this Agreement, and any
successor thereto, and any corporation or national banking association resulting
from or surviving any consolidation or merger to which it or its successors may
be a party and any successor trustee as may from time to time be serving as
successor trustee hereunder.
TRUSTEE FEE: As to each Mortgage Loan and any Distribution Date, an
amount equal to 1/12th of the Trustee Fee Rate multiplied by the Stated
Principal Balance of such Mortgage Loan as of the last day of the related Due
Period or, in the event of any payment of interest that accompanies a Principal
Prepayment in full during the related Due Period made by the Mortgagor
immediately prior to such prepayment, interest at the Trustee Fee Rate on the
Stated Principal Balance of such Mortgage Loan for the period covered by such
payment of interest.
TRUSTEE FEE RATE: With respect to each Mortgage Loan, the per annum
rate of 0.02%.
TURBO AMOUNT: As defined in Section 5.06(c).
UNPAID APPLIED REALIZED LOSS AMOUNT: As of any Distribution Date, and
each Class of Certificates (other than the Class A-IO Certificates, the Class
B-IO Certificates and the Residual Certificates) the excess of (i) the Applied
Realized Loss Amount for such Class over (ii) the sum of all distributions on
such Class in reduction of the Applied Realized Loss Amount for such Class on
all previous Distribution Dates.
VOTING RIGHTS: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions hereunder. Voting Rights shall be allocated (i) 94% to the Offered
Certificates (other than the Class A-IO Certificates and the Residual
Certificates), (ii) 1% to the Class A-IO Certificates, (iii) prior to payment in
full of the Class A-IO Certificates, 2% and thereafter 3%, to the Class B-IO
Certificates and (iv) 1% to each Class of Residual Certificates, with the
allocation among the Offered Certificates (other than the Class A-IO
Certificates and the Residual Certificates), and the Class B-IO Certificates to
be in proportion to the Certificate Principal Balance of each Class relative to
the Certificate Principal Balance of all other such Classes. Voting Rights will
be allocated among the Certificates of each such Class in accordance with their
respective Percentage Interests.
ARTICLE II.
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
Section 2.01. CONVEYANCE OF TRUST FUND.
The Seller hereby sells, transfers, assigns, sets over and otherwise
conveys to the Depositor, without recourse, all the right, title and interest of
the Seller in and to the assets in the Trust Fund.
The Seller has entered into this Agreement in consideration for the
purchase of the Mortgage Loans by the Depositor and has agreed to take the
actions specified herein.
The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee
for the use and benefit of the Certificateholders, without recourse, all the
right, title and interest of the Depositor in and to the Trust Fund.
In connection with any such transfer and assignment, the Depositor has
delivered to, and deposited with, the Trustee the following documents or
instruments with respect to each Mortgage Loan so assigned: (i) the original
Mortgage Note, including any riders thereto, endorsed to the order of "LaSalle
Bank National Association, as Trustee for certificateholders of Bear Xxxxxxx
Asset Backed Securities, Inc. Asset Backed Certificates, Series 2001-3 without
recourse," and showing to the extent available to the Seller an unbroken chain
of endorsements from the original payee thereof to the Person endorsing it to
the Trustee, (ii) the original Mortgage, which shall have been recorded (or if
the original is not available, a copy), with evidence of such recording
indicated thereon (or if clause (x) in the proviso below applies, shall be in
recordable form), (iii) the assignment (either an original or a copy, which may
be in the form of a blanket assignment if permitted in the jurisdiction in which
the Mortgaged Property is located) to the Trustee of the Mortgage, in recordable
form, with respect to each Mortgage Loan in the name of "LaSalle Bank National
Association, as Trustee for certificateholders of Bear Xxxxxxx Asset Backed
Securities, Inc. Asset Backed Certificates, Series 2001-3," (iv) an original or
a copy of all intervening assignments of the Mortgage, if any, to the extent
available to the Seller, with evidence of recording thereon, (v) the original
policy of title insurance or mortgagee's certificate of title insurance or
commitment or binder for title insurance, if available, or a copy thereof, or,
in the event that such original title insurance policy is unavailable, a
photocopy thereof, or in lieu thereof, a current lien search on the related
Mortgaged Property and (vi) originals or copies of all available assumption,
modification or substitution agreements, if any; provided, however, that the
assignment of the Mortgage to the Trustee will not be required to be submitted
for recording with respect to any Mortgage Loan if the Trustee shall have
received an Opinion of Counsel satisfactory to the Trustee stating that in such
counsel's opinion, the recordation of the assignment to the Trustee of the
Mortgage securing a particular Mortgage Note is not necessary to transfer to the
assignee thereof all the benefits and security provided by the Mortgage as
against the related assignor or any creditor of such assignor, and the Mortgage
will continue to secure the Mortgage Note to the same extent as if the Mortgage
Note and Mortgage had not been assigned and delivered; and provided, further,
however, that in lieu of the foregoing, the Seller may deliver the following
documents, under the circumstances set forth below: (x) if any Mortgage,
assignment thereof to the Trustee or intervening assignments thereof have been
delivered or are being delivered to recording offices for recording and have not
been returned in time to permit their delivery as specified above, the Depositor
may deliver a true copy thereof with a certification by the Master Servicer or
the title company issuing the commitment for title insurance, on the face of
such copy, substantially as follows: "Certified to be a true and correct copy of
the original, which has been transmitted for recording"; and (y) in lieu of the
Mortgage Notes relating to the Mortgage Loans identified in the list set forth
in Exhibit J, the Depositor may deliver a lost note affidavit and a copy of the
original note, if available; and provided, further, however, that in the case of
Mortgage Loans which have been prepaid in full after the Cut-Off Date and prior
to the Closing Date, the Depositor, in lieu of delivering the above documents,
may deliver to the Trustee a certification of a Servicing Officer to such effect
and in such case shall deposit all amounts paid in respect of such Mortgage
Loans in the Protected Account or in the Distribution Account on the Closing
Date. In the case of the documents referred to in clause (x) above, the
Depositor shall deliver such documents to the Trustee promptly after they are
received. The Seller shall cause, at its expense, the Mortgage and intervening
assignments, if any, and to the extent required in accordance with the
foregoing, the assignment of the Mortgage to the Trustee to be submitted for
recording promptly after the Closing Date. In the event that the Seller, the
Depositor or the Master Servicer gives written notice to the Trustee (a) that
recording of the assignment of the Mortgage to the Trustee is required to
protect the right, title and interest of the Trust on behalf of the
Certificateholders in and to any Mortgage Loan, (b) a court recharacterizes the
sale of the Mortgage Loans as a financing, or (c) as a result of any change in
or amendment to the laws of a State in which recording was not effected or any
applicable political subdivision thereof, or any change in official position
regarding application or interpretation of such laws, including a holding by a
court of competent jurisdiction, such recording is so required, the Seller shall
submit or cause to be submitted for recording as specified above or, should the
Seller fail to perform such obligations, the Trustee shall cause each such
previously unrecorded assignment to be submitted for recording as specified
above at the expense of the Trust pursuant to Section 9.05. In the event a
Mortgage File is released to the Master Servicer as a result of the Master
Servicer's having completed a Request for Release, the Master Servicer shall, if
not so completed, complete the assignment of the related Mortgage in the manner
specified in clause (iii) above.
Section 2.02. ACCEPTANCE OF THE MORTGAGE LOANS.
(a) The Trustee acknowledges its receipt, subject to the further
review and the exceptions the Trustee notes pursuant to the procedures described
below, of the documents (or certified copies thereof) delivered to the Trustee
pursuant to Section 2.01 and declares that it holds and will continue to hold
those documents and any amendments, replacements or supplements thereto and all
other assets of the Trust Fund delivered to it in trust for the use and benefit
of all present and future Holders of the Certificates. On the Closing Date, the
Trustee will deliver an initial certification in the form annexed hereto as
Exhibit C-1 confirming whether or not it has received the Mortgage File for each
Mortgage Loan, but without review of such Mortgage File, except to the extent
necessary to confirm whether such Mortgage File contains the original Mortgage
Note or a lost note affidavit in lieu thereof. No later than 90 days after the
Closing Date, the Trustee agrees for the benefit of the Certificateholders, to
review each Mortgage File delivered to it and to execute and deliver, or cause
to be executed and delivered, to the Seller, the Depositor and the Master
Servicer an interim certification substantially in the form annexed hereto as
Exhibit C-2. In conducting such review, the Trustee will ascertain whether all
required documents have been executed and received and whether those documents
relate, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans identified in Exhibit B to this
Agreement, as supplemented (provided, however, that with respect to those
documents described in clauses (iv) and (vi) of the fourth paragraph of Section
2.01, such obligations shall extend only to documents actually delivered
pursuant to such clauses). In performing any such review, the Trustee may
conclusively rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon. If the
Trustee finds any document constituting part of the Mortgage File not to have
been executed or received, or to be unrelated to the Mortgage Loans identified
in Exhibit B or to appear to be defective on its face, the Trustee shall include
such information in the exception report attached to Exhibit C-2. The Seller
shall correct or cure any such defect or, if prior to the end of the second
anniversary of the Closing Date, the Seller may substitute for the related
Mortgage Loan a Replacement Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.03 or shall deliver to the Trustee an Opinion of Counsel, at the Seller's
expense, to the effect that such defect does not materially or adversely affect
the interests of Certificateholders in such Mortgage Loan within 90 days from
the date of notice from the Trustee of the defect and if the Seller fails to
correct or cure the defect or deliver such opinion within such period, the
Seller will, subject to Section 2.03, within 90 days from the notification of
the Trustee purchase such Mortgage Loan at the Purchase Price; provided,
however, that if such defect relates solely to the inability of the Seller to
deliver the Mortgage, assignment thereof to the Trustee, or intervening
assignments thereof with evidence of recording thereon because such documents
have been submitted for recording and have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan if
the Seller delivers such documents promptly upon receipt, but in no event later
than 360 days after the Closing Date.
(b) No later than 180 days after the Closing Date, the Trustee will
review, for the benefit of the Certificateholders, the Mortgage Files and will
execute and deliver or cause to be executed and delivered to the Seller, the
Depositor and the Master Servicer, a final certification substantially in the
form annexed hereto as Exhibit C-3. In conducting such review, the Trustee will
ascertain whether each document required to be recorded has been returned from
the recording office with evidence of recording thereon and the Trustee has
received either an original or a copy thereof, as required in Section 2.01
(provided, however, that with respect to those documents described in clauses
(iv) and (vi) of the fourth paragraph of Section 2.01, such obligations shall
extend only to documents actually delivered pursuant to such clauses). If the
Trustee finds any document with respect to a Mortgage Loan has not been
received, or to be unrelated, determined on the basis of the Mortgagor name,
original principal balance and loan number, to the Mortgage Loans identified in
Exhibit B or to appear defective on its face, the Trustee shall note such defect
in the exception report attached to the final certification and shall promptly
notify the Seller. The Seller shall correct or cure any such defect or, if prior
to the end of the second anniversary of the Closing Date, the Seller may
substitute for the related Mortgage Loan a Replacement Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03 or shall deliver to the Trustee an Opinion of Counsel,
at the Seller's expense, to the effect that such defect does not materially or
adversely affect the interests of Certificateholders in such Mortgage Loan
within 90 days from the date of notice from the Trustee of the defect and if the
Seller is unable within such period to correct or cure such defect, or to
substitute the related Mortgage Loan with a Replacement Mortgage Loan or to
deliver such opinion, the Seller shall, subject to Section 2.03, within 90 days
from the notification of the Trustee, purchase such Mortgage Loan at the
Purchase Price; provided, however, that if such defect relates solely to the
inability of the Seller to deliver the Mortgage, assignment thereof to the
Trustee or intervening assignments thereof with evidence of recording thereon,
because such documents have not been returned by the applicable jurisdiction,
the Seller shall not be required to purchase such Mortgage Loan, if the Seller
delivers such documents promptly upon receipt, but in no event later than 360
days after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with subsections 2.02(a) or (b) above or Section 2.03, the Seller
shall remit the applicable Purchase Price to the Trustee for deposit in the
Distribution Account and shall provide written notice to the Trustee detailing
the components of the Purchase Price, signed by a Servicing Officer. Upon
deposit of the Purchase Price in the Distribution Account and receipt of a
Request for Release, the Trustee will release to the Seller the related Mortgage
File and the Trustee shall execute and deliver all instruments of transfer or
assignment, without recourse, furnished to it by the Seller, as are necessary to
vest in the Seller title to and rights under the Mortgage Loan. Such purchase
shall be deemed to have occurred on the date on which the deposit into the
Distribution Account was made. The Trustee shall promptly notify the Rating
Agencies of such repurchase. The obligation of the Seller to cure, repurchase or
substitute for any Mortgage Loan as to which a defect in a constituent document
exists shall be the sole remedy respecting such defect available to the
Certificateholders or to the Trustee on their behalf.
(d) The Seller shall deliver to the Trustee the Mortgage Note and
other documents constituting the Mortgage File with respect to any Replacement
Mortgage Loan, which the Trustee will review as provided in subsections 2.02(a)
and 2.02(b), provided, that the Closing Date referred to therein shall instead
be the date of delivery of the Mortgage File with respect to each Replacement
Mortgage Loan.
(e) Until all amounts distributable in respect of the Certificates
have been distributed in full and the Master Servicer otherwise has fulfilled
its obligations under this Agreement, the Trustee shall retain possession and
custody of each Mortgage File in accordance with and subject to the terms and
conditions of this Agreement.
Section 2.03. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER
SERVICER AND THE SELLER.
(a) The Master Servicer hereby represents and warrants to the Seller,
the Depositor and the Trustee as follows, as of the Closing Date:
(i) It is duly organized and is validly existing and in good standing
under the laws of the State of Delaware, and is duly authorized and
qualified to transact any and all business contemplated by this Agreement
to be conducted by it in any state in which a Mortgaged Property is located
or is otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing business
laws of any such state, to the extent necessary to ensure its ability to
enforce each Mortgage Loan, to service the Mortgage Loans in accordance
with the terms of this Agreement and to perform any of its other
obligations under this Agreement in accordance with the terms hereof.
(ii) It has the full corporate power and authority to service each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Agreement and has duly
authorized by all necessary corporate action on its part the execution,
delivery and performance of this Agreement; and this Agreement, assuming
the due authorization, execution and delivery hereof by the other parties
hereto, constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, except that (a) the enforceability
hereof may be limited by bankruptcy, insolvency, moratorium, receivership
and other similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(iii) The execution and delivery of this Agreement by it, the
servicing of the Mortgage Loans by it under this Agreement, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof are
in its ordinary course of business and will not (A) result in a material
breach of any term or provision of its charter or by-laws or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or result in a material default under, the terms of any other material
agreement or instrument to which it is a party or by which it may be bound,
or (C) constitute a material violation of any statute, order or regulation
applicable to it of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it; and it is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair its
ability to perform or meet any of its obligations under this Agreement.
(iv) It or one or more of its affiliates is an approved servicer of
conventional mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac and is a
mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act.
(v) No litigation is pending or, to the best of its knowledge,
threatened, against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations under
this Agreement in accordance with the terms hereof.
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery and
performance of, or compliance with, this Agreement or the consummation of
the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same.
(b) The Seller hereby represents and warrants to the Depositor, the
Master Servicer and the Trustee as follows, as of the Closing Date:
(i) The Seller is duly organized as a Delaware corporation and is
validly existing and in good standing under the laws of the State of
Delaware and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by the Seller in
any state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in any
event, is in compliance with the doing business laws of any such state, to
the extent necessary to ensure its ability to enforce each Mortgage Loan,
to sell the Mortgage Loans in accordance with the terms of this Agreement
and to perform any of its other obligations under this Agreement in
accordance with the terms hereof.
(ii) The Seller has the full corporate power and authority to sell
each Mortgage Loan, and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by this Agreement and has duly
authorized by all necessary corporate action on the part of the Seller the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, except
that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(iii) The execution and delivery of this Agreement by the Seller, the
sale of the Mortgage Loans by the Seller under this Agreement, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof are
in the ordinary course of business of the Seller and will not (A) result in
a material breach of any term or provision of the charter or by-laws of the
Seller or (B) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under, the
terms of any other material agreement or instrument to which the Seller is
a party or by which it may be bound, or (C) constitute a material violation
of any statute, order or regulation applicable to the Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Seller; and the Seller is not in breach or violation
of any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
it which breach or violation may materially impair the Seller's ability to
perform or meet any of its obligations under this Agreement.
(iv) The Seller is an approved seller of conventional mortgage loans
for Xxxxxx Mae or Xxxxxxx Mac and is a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to sections 203 and 211 of the
National Housing Act.
(v) No litigation is pending or, to the best of the Seller's
knowledge, threatened, against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Seller to sell the Mortgage Loans or to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation of the transactions contemplated hereby, or
if any such consent, approval, authorization or order is required, the
Seller has obtained the same.
(vii) With respect to each Mortgage Loan as of the Cut-off Date
(unless otherwise expressly provided):
(A) The information set forth in the Mortgage Loan Schedule on the
Closing Date is complete, true and correct.
(B) No Mortgage Loan is delinquent 91 or more days; and the Seller has
not advanced funds, or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount required under
any Mortgage Loan.
(C) Except with respect to taxes, insurance and other amounts
previously advanced by the Master Servicer with respect to any Mortgage Loan, to
the best of Seller's knowledge, there are no delinquent taxes, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments, or other outstanding charges
affecting the related Mortgaged Property.
(D) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which in the case of the Mortgage Loans are in the Mortgage File and
have been or will be recorded, if necessary to protect the interests of the
Trustee, and which have been or will be delivered to the Trustee, all in
accordance with this Agreement. The substance of any such waiver, alteration or
modification has been approved by the title insurer, to the extent required by
the related policy. No Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement approved by the title insurer, to the
extent required by the policy, and which assumption agreement in the case of the
Mortgage Loans is part of the Mortgage File.
(E) The Mortgage Note and the Mortgage are not 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 and the
Mortgage, or the exercise of any right thereunder, render 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.
(F) All buildings upon, or comprising part of, the Mortgaged Property
are insured by an insurer acceptable to Xxxxxx Mae and Xxxxxxx Mac against loss
by fire, hazards of extended coverage and such other hazards as are customary in
the area where the Mortgaged Property is located, and such insurer is licensed
to do business in the state where the Mortgaged Property is located. All such
insurance policies contain a standard mortgagee clause naming the Originator,
its successors and assigns as mortgagee and Seller has received no notice that
all premiums thereon have not been paid. If upon origination of the Mortgage
Loan, the Mortgaged Property was, or was subsequently deemed to be, in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made available),
which require under applicable law that a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
(or any successor thereto) be obtained, such flood insurance policy is in effect
which policy is with a generally acceptable carrier in an amount representing
coverage not less than the least of (A) the Stated Principal Balance of the
related Mortgage Loan (together with, in the case of a Mortgage Loan that is not
a first priority lien, the outstanding principal balance of all liens that are
prior to the related Mortgage Loan lien), (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis, or (C) the maximum
amount of insurance that is available under the Flood Disaster Protection Act of
1973. The Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at Mortgagor's cost and expense and, on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to maintain such insurance at
Mortgagor's cost and expense and to obtain reimbursement therefor from the
Mortgagor.
(G) Any and all requirements of any federal, state or local law
including, usury, truth in lending, real estate settlement procedures including,
the Real Estate Settlement Procedures Act of 1974, as amended, consumer credit
protection, equal credit opportunity or disclosure laws applicable to the
Mortgage Loan have been complied with in all material respects.
(H) The Mortgage has not been satisfied, canceled, subordinated, or
rescinded, in whole or in part, and the Mortgaged Property has not been released
from the lien of the Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such release, cancellation, subordination or
rescission.
(I) The Mortgage is a valid, existing and enforceable first or second
lien on the Mortgaged Property, including all improvements on the Mortgaged
Property, if any, subject only to (1) the lien of current real property taxes
and assessments not yet due and payable, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record as
of the date of recording being acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title insurance policy
delivered to the Originator of the Mortgage Loan and which do not adversely
affect the Appraised Value of the Mortgaged Property (3) in the case of a
Mortgage that is a second priority lien, the first lien on the Mortgaged
Property identified in the related Mortgage File, and (4) other matters to which
like properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgage. The Seller has
full right to sell and assign the Mortgage to the Depositor.
(J) The Mortgage Note and the related Mortgage are genuine and each is
the legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or reorganization or general principles of equity.
(K) All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan transaction and to execute and deliver
the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have
been duly and properly executed by such parties.
(L) The proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or Mortgage.
(M) Immediately prior to the conveyance of the Mortgage Loans by the
Seller to the Depositor hereunder, the Seller was the sole owner and holder of
the Mortgage Loan and serviced the Mortgage Loan itself; the related Originator
or the Seller was the custodian of the related Servicing Account, if applicable;
the Mortgage Loan had neither been assigned nor pledged, and the Seller had good
and marketable title thereto, and had full right to transfer and sell the
Mortgage Loan and the related servicing rights to the Depositor free and clear
of any encumbrance, equity, lien, pledge, charge, claim or security interest,
and had full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign the Mortgage Loan and the
related servicing rights to the Depositor pursuant to the terms of this
Agreement.
(N) All parties which have had any interest in the Mortgage, 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) organized under the laws of such state,
qualified to do business in such state, a federal savings and loan association
or national bank having principal offices in such state or not deemed to be
doing business in such state under applicable law.
(O) The Mortgage Loan is covered by an ALTA lender's title insurance
policy or equivalent form acceptable to the Department of Housing and Urban
Development, or any successor thereto, and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to the
exceptions contained in clause (I) above) the Seller (as assignee), its
successors and assigns as to the first or second priority lien of the Mortgage,
as applicable, in the original principal amount of the Mortgage Loan and against
any loss by reason of the invalidity or unenforceability of the lien resulting
from the provisions of the Mortgage Note and/or Mortgage providing for
adjustment in the Mortgage Rate and monthly payment. Additionally, such lender's
title insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein. With
respect to each Mortgage Loan, the Seller (as assignee) is the sole insured of
such lender's title insurance policy, and such lender's title insurance policy
is in full force and effect. No claims have been made under such lender's title
insurance policy, and no prior holder of the related Mortgage, including the
Seller in the case of a Mortgage Loan, has done, by act or omission, anything
which would impair the coverage of such lender's title insurance policy.
(P) Except as provided in clause (B), immediately prior to the Cut-off
Date, there was no default, breach, violation or event of acceleration existing
under the Mortgage or the Mortgage Note and there was 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 the
Seller has not waived any default, breach, violation or event of acceleration.
(Q) There are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding that under law
could give rise to such lien) affecting the related Mortgaged Property which are
or may be liens prior to or equal with, the lien of the related Mortgage.
(R) All improvements which were considered in any appraisal which was
used in determining the Appraised Value of the related Mortgaged Property lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property.
(S) [Reserved]
(T) The origination, servicing and collection practices with respect
to each Mortgage Note and Mortgage including, the establishment, maintenance and
servicing of the escrow accounts and escrow payments, if any, since origination,
have been conducted in all respects in accordance with the terms of Mortgage
Note and in compliance with all applicable laws and regulations and, unless
otherwise required by law or Xxxxxx Xxx/Xxxxxxx Mac standard, in accordance with
the proper, prudent and customary practices in the mortgage origination and
servicing business. With respect to the escrow accounts and escrow payments, if
any, and a Mortgage Loan all such payments are in the possession or under the
control of the Seller and there exists no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. All
Mortgage Rate adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage Note. Any interest required to
be paid pursuant to state and local law has been properly paid and credited.
(U) The Mortgaged Property is free of material damage and waste and
there is no proceeding pending for the total or partial condemnation thereof.
(V) The Mortgage contains customary and enforceable provisions to
render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
intended to be provided thereby, including, (1) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (2) otherwise by judicial
foreclosure. There is no other exemption available to the Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's sale or
the right to foreclose the Mortgage. The Mortgagor has not notified the Seller
and the Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Soldiers and Sailors Civil Relief Act of 1940.
(W) The Mortgage Note is not and has not been secured by any
collateral except the lien of the applicable Mortgage.
(X) [Reserved]
(Y) In the event the Mortgage constitutes 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 the Mortgage, and no fees or
expenses are or will become payable by the Certificateholders to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor.
(Z) No Mortgage Loan contains a permanent or temporary "buydown"
provision. The Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage Loan does not have a shared appreciation or other contingent interest
feature.
(AA) The Mortgagor has received all disclosure materials required by
applicable law with respect to the making of the Mortgage Loan. The Seller has
maintained or caused to be maintained all such statements in the Mortgage File.
(BB) No Mortgage Loan was made in connection with the construction or
rehabilitation of a Mortgaged Property.
(CC) To the best of Seller's knowledge, the Mortgaged Property is
lawfully occupied under applicable law and 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, have been made or
obtained from the appropriate authorities.
(DD) The assignment of Mortgage with respect to a Mortgage Loan is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located.
(EE) Any future advances made to the Mortgagor prior to 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. The lien of the Mortgage securing the
consolidated principal amount is expressly insured as having first or second
lien priority, by a title insurance policy, an endorsement to the policy
insuring the mortgagee's consolidated interest or by other title evidence
acceptable to Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does
not exceed the original principal amount of the Mortgage Loan.
(FF) With respect to the Mortgage Loans that bear interest at an
adjustable rate, on each Interest Adjustment Date, the Mortgage Rate has been
adjusted to equal the respective Index plus the respective Gross Margin (subject
to standard rounding conventions), subject to the Periodic Rate Cap, the Maximum
Lifetime Mortgage Rate and the Minimum Lifetime Mortgage Rate, if any, as set
forth in the respective Mortgage Note.
(GG) Except for 0.37% of the Mortgage Loans (by Cut-off Date Principal
Balance), the related Mortgaged Property consists of a single parcel of real
property with or without a detached single family residence erected thereon, or
an individual condominium unit, or a 2-4 family dwelling, or an individual unit
in a PUD as defined by Xxxxxx Xxx or a manufactured dwelling which conforms with
Xxxxxx Mae and Xxxxxxx Mac requirements regarding such dwellings, or a
townhouse, each structure of which is permanently affixed to the Mortgaged
Property, and is legally classified as real estate.
(HH) [Reserved]
(II) None of the Mortgage Loans contains a provision allowing the
Mortgagor to convert the Mortgage Note from a fixed rate mortgage loan to an
adjustable rate mortgage loan. Except with respect to 6.85% of the Mortgage
Loans (by Cut-Off Date Principal Balance), all of which are Simple Interest
Loans, the principal and interest due on each Mortgage Loan is calculated
pursuant to the standard amortization method (30/360 day interest accrual).
(JJ) Each Mortgage Loan at the time of origination was underwritten in
general in accordance with guidelines not inconsistent with the guidelines set
forth in the Prospectus Supplement and generally accepted prime or sub-prime
credit underwriting guidelines.
(KK) No error, omission, misrepresentation, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the part of the
Seller or the related Originator.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty set forth in Section 2.03(b)(vii) that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the party discovering such breach shall give prompt written notice thereof to
the other parties. The Seller hereby covenants with respect to the
representations and warranties set forth in Section 2.03(b)(vii), that within 90
days of the discovery of a breach of any representation or warranty set forth
therein that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such breach in all
material respects and, if such breach is not so cured, (i) if such 90-day period
expires prior to the second anniversary of the Closing Date, remove such
Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in
its place a Replacement Mortgage Loan, in the manner and subject to the
conditions set forth in this Section; or (ii) repurchase the affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set
forth below; provided that any such substitution pursuant to (i) above or
repurchase pursuant to (ii) above shall not be effected prior to the delivery to
the Trustee of an Opinion of Counsel if required by Section 2.05 hereof and any
such substitution pursuant to (i) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release. The Seller shall
promptly reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach. To enable the Trustee to amend the
Mortgage Loan Schedule, the Seller shall, unless it cures such breach in a
timely fashion pursuant to this Section 2.03, promptly notify the Trustee
whether it intends either to repurchase, or to substitute for, the Mortgage Loan
affected by such breach. With respect to the representations and warranties in
Section 2.03(b)(vii) that are made to the best of the Seller's knowledge, if it
is discovered by any of the Depositor, the Master Servicer, the Seller or the
Trustee that the substance of such representation and warranty is inaccurate and
such inaccuracy materially and adversely affects the value of the related
Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to
the substance of such representation or warranty, the Seller shall nevertheless
be required to cure, substitute for or repurchase the affected Mortgage Loan in
accordance with the foregoing.
With respect to any Replacement Mortgage Loan or Loans, the Seller
shall deliver to the Trustee for the benefit of the Certificateholders such
documents and agreements as are required by Section 2.01. No substitution will
be made in any calendar month after the Determination Date for such month.
Scheduled Payments due with respect to Replacement Mortgage Loans in the Due
Period related to the Distribution Date on which such proceeds are to be
distributed shall not be part of the Trust Fund and will be retained by the
Seller. For the month of substitution, except with respect to Simple Interest
Loans, distributions to Certificateholders will include the Scheduled Payment
due on any Deleted Mortgage Loan for the related Due Period (and with respect to
Simple Interest Loans, payments of principal actually received during such Due
Period) and thereafter the Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan. The Trustee shall amend the
Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the
removal of such Deleted Mortgage Loan and the substitution of the Replacement
Mortgage Loan or Loans. Upon such substitution, the Replacement Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects, and the
Seller shall be deemed to have made with respect to such Replacement Mortgage
Loan or Loans, as of the date of substitution, the representations and
warranties set forth in Section 2.03(b)(vii) with respect to such Mortgage Loan.
Upon any such substitution and the deposit to the Protected Account of the
amount required to be deposited therein in connection with such substitution as
described in the following paragraph, the Trustee shall release to the Seller
the Mortgage File relating to such Deleted Mortgage Loan and held for the
benefit of the Certificateholders and shall execute and deliver at the Seller's
direction such instruments of transfer or assignment as have been prepared by
the Seller, in each case without recourse, as shall be necessary to vest in the
Seller, or its respective designee, title to the Trustee's interest in any
Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more Replacement
Mortgage Loans for a Deleted Mortgage Loan, the Master Servicer, will determine
the amount (if any) by which the aggregate principal balance of all the
Replacement Mortgage Loans as of the date of substitution is less than the
Stated Principal Balance (after application of the principal portion of the
Scheduled Payment due in the month of substitution, except with respect to
Simple Interest Loans) of such Deleted Mortgage Loan. An amount equal to the
aggregate of such deficiencies, described in the preceding sentence for any
Distribution Date (such amount, the "Substitution Adjustment Amount") shall be
deposited into the Protected Account by the Seller delivering such Replacement
Mortgage Loan on the Determination Date for the Distribution Date relating to
the Prepayment Period during which the related Mortgage Loan became required to
be purchased or replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Protected Account on the
Determination Date for the Distribution Date in the month following the month
during which the Seller became obligated to repurchase or replace such Mortgage
Loan and upon such deposit of the Purchase Price, the delivery of an Opinion of
Counsel if required by Section 2.05 and the receipt of a Request for Release,
the Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to the Seller, and the Trustee shall execute and deliver at
such Person's direction the related instruments of transfer or assignment
prepared by the Seller, in each case without recourse, as shall be necessary to
transfer title from the Trustee for the benefit of the Certificateholders and
transfer the Trust's interest to the Seller to any Mortgage Loan purchased
pursuant to this Section 2.03. It is understood and agreed that the obligation
under this Agreement of the Seller to cure, repurchase or replace any Mortgage
Loan as to which a breach has occurred and is continuing shall constitute the
sole remedy against the Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee.
(d) The representations and warranties set forth in Section 2.03
hereof shall survive delivery of the respective Mortgage Files to the Trustee
for the benefit of the Certificateholders.
Section 2.04. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents and warrants to the Master Servicer
and the Trustee as follows, as of the date hereof and as of the Closing Date.
(i) The Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has full power and authority (corporate and other) necessary to own or hold
its properties and to conduct its business as now conducted by it and to
enter into and perform its obligations under this Agreement.
(ii) The Depositor has the full corporate power and authority to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and has duly authorized, by
all necessary corporate action on its part, the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, subject, as
to enforceability, to (i) bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
(ii) general principles of equity, regardless of whether enforcement is
sought in a proceeding in equity or at law.
(iii) The execution and delivery of this Agreement by the Depositor,
the consummation of the transactions contemplated by this Agreement, and
the fulfillment of or compliance with the terms hereof are in the ordinary
course of business of the Depositor and will not (A) result in a material
breach of any term or provision of the charter or by-laws of the Depositor
or (B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which the Depositor is a party or
by which it may be bound or (C) constitute a material violation of any
statute, order or regulation applicable to the Depositor of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Depositor; and the Depositor is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair the
Depositor's ability to perform or meet any of its obligations under this
Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's
knowledge, threatened, against the Depositor that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Depositor to perform its obligations under
this Agreement in accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Depositor of, or compliance by the Depositor with, this
Agreement or the consummation of the transactions contemplated hereby, or
if any such consent, approval, authorization or order is required, the
Depositor has obtained the same.
The Depositor hereby represents and warrants to the Trustee as of the
Closing Date, following the transfer of the Mortgage Loans to it by the Seller,
the Depositor had good title to the Mortgage Loans and the related Mortgage
Notes were subject to no offsets, claims, defenses or counterclaims.
It is understood and agreed that the representations and warranties
set forth in the immediately preceding paragraph shall survive delivery of the
Mortgage Files to the Trustee. Upon discovery by the Depositor, the Master
Servicer or the Trustee of a breach of such representations and warranties, the
party discovering such breach shall give prompt written notice to the others and
to each Rating Agency.
Section 2.05. DELIVERY OF OPINION OF COUNSEL IN CONNECTION WITH
SUBSTITUTIONS AND REPURCHASES.
(a) Notwithstanding any contrary provision of this Agreement, with
respect to any Mortgage Loan that is not in default or as to which default is
not imminent, no repurchase or substitution pursuant to Sections 2.02 or 2.03
shall be made unless the Seller delivers to the Trustee an Opinion of Counsel,
addressed to the Trustee, to the effect that such repurchase or substitution
would not (i) result in the imposition of the tax on "prohibited transactions"
of REMIC I, REMIC II or REMIC III or contributions after the Closing Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any
time that any Certificates are outstanding. Any Mortgage Loan as to which
repurchase or substitution was delayed pursuant to this paragraph shall be
repurchased or the substitution therefor shall occur (subject to compliance with
Sections 2.02 or 2.03) upon the earlier of (a) the occurrence of a default or
imminent default with respect to such Mortgage Loan and (b) receipt by the
Trustee of an Opinion of Counsel to the effect that such repurchase or
substitution, as applicable, will not result in the events described in clause
(i) or clause (ii) of the preceding sentence.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer
or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of section 860G(a)(3) of the Code, the party discovering such
fact shall promptly (and in any event within 5 Business Days of discovery) give
written notice thereof to the other parties. In connection therewith, the
Trustee shall require the Seller, at the Seller's option, to either: (i)
substitute, if the conditions in Section 2.03(c) with respect to substitutions
are satisfied, a Replacement Mortgage Loan for the affected Mortgage Loan, or
(ii) repurchase the affected Mortgage Loan within 90 days of such discovery in
the same manner as it would a Mortgage Loan for a breach of representation or
warranty contained in Section 2.03. The Trustee shall reconvey to the Seller the
Mortgage Loan to be released pursuant hereto in the same manner, and on the same
terms and conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty contained in Section 2.03.
Section 2.06. COUNTERSIGNATURE AND DELIVERY OF CERTIFICATES.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment, has executed,
countersigned and delivered, to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates and to perform the duties set forth in this Agreement to the best
of its ability, to the end that the interests of the Holders of the Certificates
may be adequately and effectively protected.
Section 2.07. COVENANTS OF THE MASTER SERVICER.
The Master Servicer hereby covenants to the Depositor and the Trustee
as follows:
(a) it shall comply in the performance of its obligations under this
Agreement with all reasonable rules and requirements of the insurer under
each Required Insurance Policy;
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Trustee, the
Depositor, any affiliate of the Depositor or the Trustee and prepared by
the Master Servicer pursuant to this Agreement will contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the information, certificate, statement or report not misleading; and
(c) it shall accurately and fully provide information regarding
payment performance of the Mortgagors to the nationally recognized credit
repositories, to the extent such reporting remains customary and prudent in
the servicing of mortgage loans similar to the Mortgage Loans. Nothing in
this Section shall derogate from the obligation of the Master Servicer to
observe any applicable law prohibiting disclosure of information regarding
the Mortgagors and the failure of the Master Servicer to provide access as
provided in this Section as a result of such obligation shall not
constitute a breach of this Section.
Section 2.08. LOST MORTGAGE NOTES INDEMNITY
With respect to each Mortgage Loan for which the Seller has delivered
a lost note affidavit in lieu of an original Mortgage Note, the Seller does
hereby agree to defend, indemnify, and hold harmless the Trust Fund and the
Trustee, from and against any and all losses or damages, together with all
reasonable costs, charges and expenses (whether or not a lawsuit is filed),
incurred as a result of (i) the inability to enforce the related Mortgage Note
according to its terms due to the lack of an original Mortgage Note due to the
lack of an original Mortgage Note, (ii) any claim, demand, suit, cause of action
or proceeding by a third party arising out of the Master Servicer's or the
Trustee's inability to enforce the related Mortgage Note according to its terms
due to the lack of an original Mortgage Note, or (iii) the inability to receive
any related Insurance Proceeds, Liquidation Proceeds or other amounts due to the
lack of an original Mortgage Note. Upon demand from the Trustee or the Master
Servicer, the Seller shall deposit all amounts constituting lost principal with
respect to such Mortgage Loan into the Protected Account to be treated as a
Principal Prepayment, and reimburse the Trustee for all costs and expenses
incurred in connection with such lost Mortgage Note.
ARTICLE III.
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. MASTER SERVICER TO SERVICE MORTGAGE LOANS.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with customary and usual
standards of practice of prudent mortgage loan lenders in the respective states
in which the Mortgaged Properties are located. In connection with such servicing
and administration, the Master Servicer shall have full power and authority,
acting alone and/or through subservicers as provided in Section 3.02 hereof, to
do or cause to be done any and all things that it may deem necessary or
desirable in connection with such servicing and administration, including but
not limited to, the power and authority, subject to the terms hereof (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in this Agreement),
(iii) to collect any Insurance Proceeds and other Liquidation Proceeds, and (iv)
subject to Section 3.12(a), to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan; provided that
the Master Servicer shall take no action that is inconsistent with or prejudices
the interests of the Trust Fund or the Certificateholders in any Mortgage Loan
or the rights and interests of the Depositor and the Trustee under this
Agreement. The Master Servicer shall represent and protect the interest of the
Trust Fund in the same manner as it currently protects its own interest in
mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan and shall not make or permit any modification, waiver
or amendment of any term of any Mortgage Loan which would cause any of REMIC I,
REMIC II or REMIC III to fail to qualify as a REMIC or result in the imposition
of any tax under the REMIC Provisions, but in any case not in any manner that is
a lesser standard than that provided in the first sentence of this Section 3.01.
Without limiting the generality of the foregoing, the Master Servicer, in its
own name or in the name of the Depositor and the Trustee, is hereby authorized
and empowered by the Depositor and the Trustee, when the Master Servicer
believes it appropriate in its reasonable judgment, to execute and deliver, on
behalf of the Trustee, the Depositor, the Certificateholders or any of them, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. The Master Servicer shall prepare and deliver
to the Depositor and/or the Trustee such documents requiring execution and
delivery by any or all of them as are necessary or appropriate to enable the
Master Servicer to service and administer the Mortgage Loans. Upon receipt of
such documents, the Depositor and/or the Trustee shall execute such documents
and deliver them to the Master Servicer. The Master Servicer shall prepare and
deliver to the Trustee all powers of attorney necessary to carry out its
obligations hereunder, PROVIDED, however, that notwithstanding anything
contained herein to the contrary, the Master Servicer shall not without the
Trustee's consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Master Servicer's representative capacity,
or (ii) take any action with the intent to, or which actually does cause, the
Trustee to be registered to do business in any state.
In accordance with the standards of the preceding paragraph, the
Master Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. All costs incurred by the Master Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balance under the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
The Master Servicer shall deliver a list of Servicing Officers to the
Trustee by the Closing Date.
Section 3.02. SUBSERVICING; ENFORCEMENT OF THE OBLIGATIONS OF MASTER
SERVICER.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a Subservicer (each, a "Subservicer") pursuant to a
Subservicing Agreement (each, a "Subservicing Agreement"); provided that such
Subservicing arrangement and the terms of the related Subservicing Agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder. Notwithstanding the
provisions of any Subservicing Agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer and
a Subservicer or reference to actions taken through a Master Servicer or
otherwise, the Master Servicer shall remain obligated and liable to the
Depositor, the Trustee and the Certificateholders for the servicing and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Master Servicer alone were servicing and administering the Mortgage Loans.
Every Subservicing Agreement entered into by the Master Servicer shall contain a
provision giving the Successor Master Servicer the option to terminate such
agreement in the event a Successor Master Servicer is appointed. All actions of
each Subservicer performed pursuant to the related Subservicing Agreement shall
be performed as an agent of the Master Servicer with the same force and effect
as if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries or payments with respect to
the Mortgage Loans that are received by a Subservicer regardless of whether such
payments are remitted by the Subservicer to the Master Servicer.
Section 3.03. RIGHTS OF THE DEPOSITOR, THE TRUSTEE IN RESPECT OF
THE MASTER SERVICER.
Neither the Trustee nor the Depositor shall have any responsibility or
liability for any action or failure to act by the Master Servicer, and neither
of them is obligated to supervise the performance of the Master Servicer
hereunder or otherwise.
Section 3.04. SUCCESSOR MASTER SERVICER AND SUBSERVICING AGREEMENTS.
In the event that, pursuant to Section 8.02 hereof, the Trustee or any
other Person shall become Successor Master Servicer, such Successor Master
Servicer may, at its option, succeed to any rights and obligations of the
predecessor Master Servicer under any subservicing agreement in accordance with
the terms thereof; provided that such Successor Master Servicer shall not incur
any liability or have any obligations in its capacity as servicer under a
subservicing agreement arising prior to the date of such succession unless it
expressly elects to succeed to the rights and obligations of the predecessor
Master Servicer thereunder; and the predecessor Master Servicer shall not
thereby be relieved of any liability or obligations under the subservicing
agreement arising prior to the date of such succession.
Such predecessor Master Servicer shall, upon request of the Trustee,
but at the expense of such predecessor Master Servicer, deliver to the assuming
party all documents and records relating to each Subservicing Agreement and the
Mortgage Loans then being serviced thereunder and an accounting of amounts
collected held by it and otherwise use its best efforts to effect the orderly
and efficient transfer of the Subservicing Agreement to the assuming party.
Section 3.05. COLLECTION OF MORTGAGE LOAN PAYMENTS; PROTECTED ACCOUNT;
DISTRIBUTION ACCOUNT.
(a) The Master Servicer shall make reasonable efforts in accordance
with customary and usual standards of practice of prudent mortgage lenders in
the respective states in which the Mortgaged Properties are located to collect
all payments called for under the terms and provisions of the Mortgage Loans to
the extent such procedures shall be consistent with this Agreement and the terms
and provisions of any related Required Insurance Policy. Consistent with the
foregoing, the Master Servicer may in its discretion (i) waive any late payment
charge, assumption interest, penalty interest (including a Prepayment Charge) in
connection with the prepayment of a Mortgage Loan and (ii) suspend or
temporarily reduce or permit to be suspended or temporarily reduced regular
Scheduled Payments for a period of up to six months or arrange or permit an
arrangement with a Mortgagor for a schedule for the liquidation of
delinquencies, if, in the good faith judgment of the Master Servicer, that
action would minimize the loss that might otherwise be experienced with respect
to a Mortgage Loan, or in the event that a payment default with respect to a
Mortgage Loan is reasonably foreseeable by the Master Servicer; provided,
however, that the Master Servicer may not modify any Mortgage Loan to extend its
scheduled maturity date beyond the Latest Possible Maturity Date. In the event
of any such arrangement, the Master Servicer shall make Advances on the related
Mortgage Loan (except with respect to principal on Simple Interest Loans) during
the scheduled period in accordance with the amortization schedule of such
Mortgage Loan without modification thereof by reason of such arrangements, and
shall be entitled to reimbursement therefor in accordance with Section 5.01. The
Master Servicer shall not be required to institute or join in litigation with
respect to collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing the provision
of the Mortgage or other instrument pursuant to which such payment is required
is prohibited by applicable law. In addition, if (x) the Mortgage Loan is in
default or default is imminent or (y) the Master Servicer delivers to the
Trustee a certification, based on the advice of counsel or certified public
accountants, in either case, that have a national reputation with respect to
taxation of REMICs, that a modification of a Mortgage Loan will not result in
the imposition of taxes on or disqualify, any REMIC formed hereunder, the Master
Servicer may, (A) amend any Mortgage Note to reduce the Mortgage Rate applicable
thereto, provided that, (i) in the case of a Mortgage Loan that bears a fixed
rate of interest, such reduced Mortgage Rate shall in no event be lower than
8.00% and (ii) in the case of a Mortgage Loan that bears an adjustable rate of
interest, only if the related Index, Gross Margin and existing interest rate
parameters and/or payment parameters remains the same and (B) amend any Mortgage
Note to extend to the maturity thereof.
(b) The Master Servicer shall establish and maintain one or more
Protected Accounts, each of which shall be an Eligible Account established in
the name of the Trustee for the benefit of the Certificateholders, and into
which the Master Servicer shall deposit or cause to be deposited on a daily
basis within one Business Day of receipt, except as otherwise specifically
provided herein, the following payments and collections remitted by Subservicers
or received by it in respect of Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans,
other than Simple Interest Loans, on or before the Cut-off Date) and the
following amounts required to be deposited hereunder:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (other than, in the case of a
Simple Interest Loan, interest paid in excess of 30 days interest) on the
Mortgage Loans net of the Master Servicing Fee permitted under Section
3.15;
(iii) all Liquidation Proceeds, other than proceeds to be applied to
the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Master Servicer's normal servicing
procedures;
(iv) all Compensating Interest required to be remitted pursuant to
Section 5.02;
(v) any amount required to be deposited by the Master Servicer
pursuant to Section 3.05(e) in connection with any losses on Permitted
Investments;
(vi) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.10 hereof;
(vii) the Purchase Price for any Mortgage Loan purchased pursuant to
Sections 2.02, 2.03 or 3.20 and any Substitution Adjustment Amount;
(viii) all Advances made by the Master Servicer pursuant to Section
5.01; and
(ix) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Master Servicer into
the Protected Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the nature of
prepayment charges, late payment charges or assumption fees, if collected, need
not be remitted by the Master Servicer. In the event that the Master Servicer
shall remit any amount not required to be remitted and not otherwise subject to
withdrawal pursuant to Section 3.08 hereof, it may at any time withdraw or
direct the institution maintaining the Protected Account, to withdraw such
amount from the Protected Account, any provision herein to the contrary
notwithstanding. Such withdrawal or direction may be accomplished by delivering
written notice thereof to the institution maintaining the Protected Account,
that describes the amounts deposited in error in the Protected Account. The
Master Servicer shall maintain adequate records with respect to all withdrawals
made pursuant to this Section. All funds deposited in the Protected Account
shall be held in trust for the Certificateholders until withdrawn in accordance
with Section 3.08.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account, which shall be an Eligible
Account. The Trustee shall, promptly upon receipt, deposit in the Distribution
Account and retain therein until distributed or otherwise disposed of pursuant
to this Agreement, the following:
(i) $150 provided to the Trustee on the Closing Date to be used to pay
principal on each of the Class R-1, Class R-2 and Class R-3 Certificates on
the Distribution Date in December, 2001, receipt of which is hereby
acknowledged by the Trustee;
(ii) the aggregate amount remitted by the Master Servicer pursuant to
the second paragraph of Section 3.08(a); and
(iii) any amount required to be deposited by the Trustee pursuant to
Section 3.05(e) in connection with any losses on Permitted Investments.
The foregoing requirements for remittance by the Master Servicer and
deposit by the Trustee into the Distribution Account shall be exclusive. In the
event that the Master Servicer shall remit any amount not required to be
remitted and not otherwise subject to withdrawal pursuant to Section 3.08
hereof, it may at any time direct the Trustee to withdraw such amount from the
Distribution Account, any provision herein to the contrary notwithstanding. Such
direction may be accomplished by delivering a written notice to the Trustee that
describes the amounts deposited in error in the Distribution Account. All funds
deposited in the Distribution Account shall be held by the Trustee in trust for
the Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.08. In no event shall the Trustee incur
liability for withdrawals from the Distribution Account at the direction of the
Master Servicer.
(d) [Reserved.]
(e) Each institution that maintains a Protected Account or the
Distribution Account (x) shall in the case of a Protected Account, invest the
funds in such account, as directed by the Master Servicer, and (y) may in the
case of the Distribution Account, invest the funds in such account as directed
by the Trustee, in Permitted Investments which shall mature not later than (i)
in the case of the Protected Account, the second Business Day next preceding the
related Distribution Account Deposit Date (except that if such Permitted
Investment is an obligation of the institution that maintains such Protected
Account, then such Permitted Investment shall mature not later than the Business
Day next preceding such Distribution Account Deposit Date) and (ii) in the case
of the Distribution Account, the Business Day immediately preceding the first
Distribution Date that follows the date of such investment (except that if such
Permitted Investment is an obligation of the institution that maintains such
Distribution Account, then such Permitted Investment shall mature not later than
such Distribution Date) and, in each case, shall not be sold or disposed of
prior to its maturity. All such Permitted Investments shall be made in the name
of the Trustee, for the benefit of the Certificateholders. In the case of (x)
the Protected Account, all income and gain net of any losses realized from any
such investment shall be for the benefit of the Master Servicer as additional
servicing compensation and shall be remitted to it monthly as provided herein
and (y) the Distribution Account, all income and gain net of any losses realized
from any such investment shall be for the benefit of the Trustee as additional
compensation and shall be remitted to it monthly as provided herein. The amount
of any losses incurred in the Protected Account or the Distribution Account in
respect of any such investments shall be deposited by the Master Servicer into
the Protected Account or by the Trustee into the Distribution Account, as
applicable, out of, respectively, the Master Servicer's own funds or the
Trustee's own funds immediately as realized.
(f) The Master Servicer shall give at least 30 days advance notice to
the Trustee, the Seller, each Rating Agency and the Depositor of any proposed
change of location of the Protected Account prior to any change thereof. The
Trustee shall give at least 30 days advance notice to the Master Servicer, the
Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Distribution Account prior to any change thereof.
Section 3.06. COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR ITEMS;
SERVICING ACCOUNTS.
To the extent required by the related Mortgage Note, the Master
Servicer shall establish and maintain one or more accounts (each, a "Servicing
Account") and deposit and retain therein all collections from the Mortgagors (or
advances by the Master Servicer) for the payment of taxes, assessments, hazard
insurance premiums or comparable items for the account of the Mortgagors.
Nothing herein shall require the Master Servicer to compel a Mortgagor to
establish a Servicing Account in violation of applicable law.
Withdrawals of amounts so collected from the Servicing Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to reimburse
the Master Servicer out of related collections for any payments made pursuant to
Sections 3.01 hereof (with respect to taxes and assessments and insurance
premiums) and 3.10 hereof (with respect to hazard insurance), to refund to any
Mortgagors any sums as may be determined to be overages, to pay interest, if
required by law or the terms of the related Mortgage or Mortgage Note, to
Mortgagors on balances in the Servicing Account or to clear and terminate the
Servicing Account at the termination of this Agreement in accordance with
Section 10.01 hereof. The Servicing Accounts shall not be a part of the Trust
Fund.
Section 3.07. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
THE MORTGAGE LOANS.
The Master Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage Loans
and all accounts, insurance policies and other matters relating to this
Agreement, such access being afforded without charge, but only upon reasonable
request and during normal business hours at the offices of the Master Servicer
designated by it.
Section 3.08. PERMITTED WITHDRAWALS FROM THE PROTECTED ACCOUNT AND THE
DISTRIBUTION ACCOUNT.
(a) The Master Servicer may from time to time make withdrawals from
the Protected Account for the following purposes:
(i) to pay to the Master Servicer (to the extent not previously paid
to or withheld by the Master Servicer), as servicing compensation in
accordance with Section 3.15, that portion of any payment of interest that
equals the Master Servicing Fee for the period with respect to which such
interest payment was made, and, as additional servicing compensation, those
other amounts set forth in Section 3.15;
(ii) to reimburse the Master Servicer for Advances made by it with
respect to the Mortgage Loans, such right of reimbursement pursuant to this
subclause (ii) being limited to amounts received on particular Mortgage
Loan(s) (including, for this purpose, Liquidation Proceeds) that represent
late recoveries of payments of principal and/or interest on such particular
Mortgage Loan(s) in respect of which any such Advance was made;
(iii) to reimburse the Master Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse the Master Servicer from Insurance Proceeds for
Insured Expenses covered by the related Insurance Policy;
(v) to pay the Master Servicer any unpaid Master Servicing Fees and to
reimburse it for any unreimbursed Servicing Advances, the Master Servicer's
right to reimbursement of Servicing Advances pursuant to this subclause (v)
with respect to any Mortgage Loan being limited to amounts received on
particular Mortgage Loan(s) (including, for this purpose, Liquidation
Proceeds and purchase and repurchase proceeds) that represent late
recoveries of the payments for which such Servicing Advances were made;
(vi) to pay to the Seller, the Depositor or the Master Servicer, as
applicable, with respect to each Mortgage Loan or property acquired in
respect thereof that has been purchased pursuant to Section 2.02, 2.03 or
3.20, all amounts received thereon and not taken into account in
determining the related Stated Principal Balance of such repurchased
Mortgage Loan;
(vii) to reimburse the Seller, the Master Servicer or the Depositor
for expenses incurred by any of them in connection with the Mortgage Loans
or Certificates and reimbursable pursuant to Section 7.03 hereof;
(viii) to withdraw pursuant to Section 3.05 any amount deposited in
the Protected Account and not required to be deposited therein; and
(ix) to clear and terminate the Protected Account upon termination of
this Agreement pursuant to Section 10.01 hereof.
In addition, no later than 1:00 p.m. Central time on the Distribution
Account Deposit Date, the Master Servicer shall withdraw from the Protected
Account and remit to the Trustee the amount of Interest Funds and Principal
Funds collected, to the extent on deposit, and the Trustee shall deposit such
amount in the Distribution Account.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Protected Account pursuant to subclauses (i), (ii), (iv),
(v) and (vi) above. Prior to making any withdrawal from the Protected Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance or Servicing Advance determined by the Master Servicer to be a
Nonrecoverable Advance and identifying the related Mortgage Loan(s), and their
respective portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distribution to the Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that it
is authorized to retain pursuant to the last paragraph of Section 9.12). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay itself the Trustee Fee and certain expenses and
indemnification amounts as provided in Section 9.05, for the related
Distribution Date;
(ii) to pay to itself, as additional compensation, earnings on or
investment income with respect to funds in or credited to the Distribution
Account;
(iii) to withdraw pursuant to Section 3.05 any amount deposited in the
Distribution Account and not required to be deposited therein; and
(iv) to clear and terminate the Distribution Account upon termination
of the Agreement pursuant to Section 10.01 hereof.
Section 3.09. [RESERVED.]
Section 3.10. MAINTENANCE OF HAZARD INSURANCE.
The Master Servicer shall cause to be maintained, for each Mortgage
Loan, hazard insurance on buildings upon, or comprising part of, the Mortgaged
Property against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located
with an insurer which is licensed to do business in the state where the
Mortgaged Property is located, in an amount equal, in general, to at least the
lesser of the Stated Principal Balance of the Mortgage Loan or the maximum
insurable value of the improvements securing such Mortgage Loan and containing a
standard mortgagee clause; but no less than the amount necessary to prevent loss
due to the application of any co-insurance provision of the related policy. Each
such policy of standard hazard insurance shall contain, or have an accompanying
endorsement that contains, a standard mortgagee clause. The Master Servicer
shall also cause flood insurance to be maintained on property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan, to the extent
described below. Pursuant to Section 3.05 hereof, any amounts collected by the
Master Servicer under any such policies (other than the amounts to be applied to
the restoration or repair of the related Mortgaged Property or property thus
acquired or amounts released to the Mortgagor in accordance with the Master
Servicer's normal servicing procedures) shall be deposited in the Protected
Account. Any cost incurred by the Master Servicer in maintaining any such
insurance shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trustee for their benefit, be added to
the principal balance of the Mortgage Loan, notwithstanding that the terms of
the Mortgage Loan so permit. Such costs shall be recoverable by the Master
Servicer out of late payments by the related Mortgagor or out of Liquidation
Proceeds to the extent permitted by Section 3.08 hereof. It is understood and
agreed that no earthquake or other additional insurance is to be required of any
Mortgagor or maintained on property acquired in respect of a Mortgage other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
is located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating in the
national flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan. Such flood
insurance shall be in an amount equal to the least of (i) the Stated Principal
Balance of the related Mortgage Loan, (ii) minimum amount required to compensate
for damage or loss on a replacement cost basis, or (iii) the maximum amount of
such insurance available for the related Mortgaged Property under the Flood
Disaster Protection Act of 1973, as amended.
In the event that the Master Servicer shall obtain and maintain a
blanket policy insuring against hazard losses on all of the Mortgage Loans, it
shall conclusively be deemed to have satisfied its obligations as set forth in
the first sentence of this Section 3.10, it being understood and agreed that
such policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers. If such
policy contains a deductible clause, the Master Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property a
policy complying with the first sentence of this Section 3.10, and there shall
have been a loss that would have been covered by such policy, deposit in the
Protected Account the amount not otherwise payable under the blanket policy
because of such deductible clause. Such deposit shall constitute a Servicing
Advance. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to present, on behalf of itself, the
Depositor and the Trustee for the benefit of the Certificateholders, claims
under any such blanket policy.
Section 3.11. ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
(a) Except as otherwise provided in this Section 3.11(a), when any
property subject to a Mortgage has been or is about to be conveyed by the
Mortgagor, the Master Servicer shall to the extent that it has knowledge of such
conveyance, enforce any due-on-sale clause contained in any Mortgage Note or
Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer is not required to exercise
such rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies the
terms and conditions contained in the Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such Mortgage Note or Mortgage is not
otherwise so required under such Mortgage Note or Mortgage as a condition to
such transfer. In the event that the Master Servicer is prohibited by law from
enforcing any such due-on-sale clause, or if coverage under any Required
Insurance Policy would be adversely affected, or if nonenforcement is otherwise
permitted hereunder, the Master Servicer is authorized, subject to Section
3.11(b), to take or enter into an assumption and modification agreement from or
with the person to whom such property has been or is about to be conveyed,
pursuant to which such person becomes liable under the Mortgage Note and, unless
prohibited by applicable state law, the Mortgagor remains liable thereon,
provided that the Mortgage Loan shall continue to be covered (if so covered
before the Master Servicer enters such agreement) by the applicable Required
Insurance Policies. The Master Servicer, subject to Section 3.11(b), is also
authorized with the prior approval of the insurers under any Required Insurance
Policies 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 liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed to be in
default under this Section 3.11(a) by reason of any transfer or assumption that
the Master Servicer reasonably believes it is restricted by law from preventing.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.11(a) hereof, in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and such Person
is to enter into an assumption agreement or modification agreement or supplement
to the Mortgage Note or Mortgage that requires the signature of the Trustee, or
if an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Master Servicer shall prepare
and deliver or cause to be prepared and delivered to the Trustee for signature
and shall direct, in writing, the Trustee to execute the assumption agreement
with the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such Person.
In connection with any such assumption, no material term of the Mortgage Note
(including, but not limited to, the Mortgage Rate, the amount of the Scheduled
Payment, the Maximum Lifetime Mortgage Rate, the Minimum Lifetime Mortgage Rate,
the Gross Margin, the Periodic Rate Cap, the Interest Adjustment Date and any
other term affecting the amount or timing of payment on the Mortgage Loan) may
be changed. In addition, the substitute Mortgagor and the Mortgaged Property
must be acceptable to the Master Servicer in accordance with its servicing
standards as then in effect. The Master Servicer shall notify the Trustee that
any such substitution or assumption agreement has been completed by forwarding
to the Trustee the original of such substitution or assumption agreement, which
in the case of the original shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of such Mortgage File to the same
extent as all other documents and instruments constituting a part thereof. Any
fee collected by the Master Servicer for entering into an assumption or
substitution of liability agreement will be retained by the Master Servicer as
additional servicing compensation.
Section 3.12. REALIZATION UPON DEFAULTED MORTGAGE LOANS; DETERMINATION OF
EXCESS PROCEEDS AND REALIZED LOSSES.
(a) The Master Servicer shall use reasonable efforts to foreclose upon
or otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments. In
connection with such foreclosure or other conversion, the Master Servicer shall
follow such practices and procedures as it shall deem necessary or advisable and
as shall be normal and usual in its general mortgage servicing activities and
the requirements of the insurer under any Required Insurance Policy; provided
that the Master Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan after reimbursement to
itself of such expenses and (ii) that such expenses will be recoverable to it
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Protected Account pursuant to Section 3.08
hereof). If the Master Servicer reasonably believes that Net Liquidation
Proceeds with respect to any such Mortgage Loan would not be increased as a
result of such foreclosure or other action, such Mortgage Loan will be
charged-off and will become a Liquidated Loan. The Master Servicer will give
notice of any such charge-off to the Trustee. The Master Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided that such costs and expenses shall be Servicing Advances
and that it shall be entitled to reimbursement thereof from the proceeds of
liquidation of the related Mortgaged Property, as contemplated in Section 3.08
hereof. If the Master Servicer has knowledge that a Mortgaged Property that the
Master Servicer is contemplating acquiring in foreclosure or by deed-in-lieu of
foreclosure is located within a one-mile radius of any site with environmental
or hazardous waste risks known to the Master Servicer, the Master Servicer will,
prior to acquiring the Mortgaged Property, consider such risks and only take
action in accordance with its established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders (or the Trustee's nominee on behalf of the
Certificateholders). The Trustee's name shall be placed on the title to such REO
Property solely as the Trustee hereunder and not in its individual capacity. The
Master Servicer shall ensure that the title to such REO Property references this
Agreement and the Trustee's capacity thereunder. Pursuant to its efforts to sell
such REO Property, the Master Servicer shall either itself or through an agent
selected by the Master Servicer protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of the
interests of the Certificateholders, rent the same, or any part thereof, as the
Master Servicer deems to be in the best interest of the Master Servicer and the
Certificateholders for the period prior to the sale of such REO Property. The
Master Servicer shall prepare for and deliver to the Trustee a statement with
respect to each REO Property that has been rented showing the aggregate rental
income received and all expenses incurred in connection with the management and
maintenance of such REO Property at such times as is necessary to enable the
Trustee to comply with the reporting requirements of the REMIC Provisions. The
net monthly rental income, if any, from such REO Property shall be deposited in
the Protected Account no later than the close of business on each Determination
Date. The Master Servicer shall perform the tax reporting and withholding
related to foreclosures, abandonments and cancellation of indebtedness income as
specified by Sections 1445, 6050J and 6050P of the Code by preparing and filing
such tax and information returns, as may be required.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property
prior to three years after its acquisition by the Trust Fund or, at the expense
of the Trust Fund, request more than 60 days prior to the day on which such
three-year period would otherwise expire, an extension of the three-year grace
period unless the Trustee shall have been supplied with an Opinion of Counsel
(such opinion not to be an expense of the Trustee) to the effect that the
holding by the Trust Fund of such Mortgaged Property subsequent to such
three-year period will not result in the imposition of taxes on "prohibited
transactions" of REMIC I, REMIC II or REMIC III as defined in section 860F of
the Code or cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a
REMIC at any time that any Certificates are outstanding, in which case the Trust
Fund may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel). Notwithstanding any other provision of
this Agreement, no Mortgaged Property acquired by the Trust Fund shall be rented
(or allowed to continue to be rented) or otherwise used for the production of
income by or on behalf of the Trust Fund in such a manner or pursuant to any
terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of section 860G(a)(8) of the Code or
(ii) subject any of REMIC I, REMIC II or REMIC III to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under section 860G(c) of the Code or otherwise, unless the Master
Servicer has agreed to indemnify and hold harmless the Trust Fund with respect
to the imposition of any such taxes.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any Mortgaged
Properties acquired through foreclosure or other judicial proceeding, net of
reimbursement to the Master Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Servicing Fees, Advances, Servicing Advances and any management fee
paid or to be paid with respect to the management of such Mortgaged Property,
shall be applied to the payment of principal of, and interest on, the related
defaulted Mortgage Loans (with interest accruing as though such Mortgage Loans
were still current) and all such income shall be deemed, for all purposes in
this Agreement, to be payments on account of principal and interest on the
related Mortgage Notes and shall be deposited into the Protected Account. To the
extent the income received during a Prepayment Period is in excess of the amount
attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan, such excess shall be considered to
be a partial Principal Prepayment for all purposes hereof.
The Liquidation Proceeds from any liquidation of a Mortgage Loan, net
of any payment to the Master Servicer as provided above, shall be deposited in
the Protected Account on the next succeeding Determination Date following
receipt thereof for distribution on the related Distribution Date, except that
any Excess Proceeds shall be retained by the Master Servicer as additional
servicing compensation.
The proceeds of any Liquidated Loan, as well as any recovery resulting
from a partial collection of Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the Master Servicer for any related unreimbursed Servicing Advances
and Servicing Fees, pursuant to Section 3.08(a)(v) or this Section 3.12; second,
to reimburse the Master Servicer for any unreimbursed Advances, pursuant to
Section 3.08(a)(ii) or this Section 3.12; third, to accrued and unpaid interest
(to the extent no Advance has been made for such amount) on the Mortgage Loan or
related REO Property, at the Net Mortgage Rate to the first day of the month in
which such amounts are required to be distributed; and fourth, as a recovery of
principal of the Mortgage Loan.
(b) On each Determination Date, the Master Servicer shall determine
the respective aggregate amounts of Excess Proceeds and Realized Losses, if any,
for the related Prepayment Period.
(c) [Reserved]
(d) The Master Servicer has no intent to foreclose on any Mortgage
Loan based on the delinquency characteristics as of the Closing Date; provided,
that the foregoing does not prevent the Master Servicer from initiating
foreclosure proceedings on any date hereafter if the facts and circumstances of
such Mortgage Loans including delinquency characteristics in the Master
Servicer's discretion so warrant such action.
Section 3.13. TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will promptly notify the
Trustee by delivering a Request for Release; provided, however, that in the case
of a Mortgage Loan secured by a Mortgaged Property located in California, the
related Mortgage File shall be released by the Trustee upon receipt by it of a
Request for Release from the Master Servicer indicating that the Mortgage Loan
is secured by Mortgaged Property located in California and that the Master
Servicer reasonably expects that payment in full of such Mortgage Loan will be
received promptly. Upon receipt of such request, the Trustee shall promptly
release the related Mortgage File to the Master Servicer, and the Trustee shall
at the Master Servicer's direction execute and deliver to the Master Servicer
the request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage in each case
provided by the Master Servicer, together with the Mortgage Note with written
evidence of cancellation thereon. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Protected Account, the Distribution Account or any related subservicing account.
From time to time and as shall be appropriate for the servicing or foreclosure
of any Mortgage Loan, including for such purpose, collection under any policy of
flood insurance, any fidelity bond or errors or omissions policy, or for the
purposes of effecting a partial release of any Mortgaged Property from the lien
of the Mortgage or the making of any corrections to the Mortgage Note or the
Mortgage or any of the other documents included in the Mortgage File, the
Trustee shall, upon delivery to the Trustee of a Request for Release signed by a
Servicing Officer, release the Mortgage File to the Master Servicer. Subject to
the further limitations set forth below, the Master Servicer shall cause the
Mortgage File or documents so released to be returned to the Trustee when the
need therefor by the Master Servicer no longer exists, unless the Mortgage Loan
is liquidated and the proceeds thereof are deposited in the Protected Account,
in which case the Trustee shall deliver the Request for Release to the Master
Servicer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this Agreement,
the Master Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity. Notwithstanding the foregoing, the Master Servicer shall cause
possession of any Mortgage File or of the documents therein that shall have been
released by the Trustee to be returned to the Trustee within 21 calendar days
after possession thereof shall have been released by the Trustee unless (i) the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to the
Mortgage Loan have been deposited in the Protected Account, and the Master
Servicer shall have delivered to the Trustee a Request for Release or (ii) the
Mortgage File or document shall have 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 and the Master Servicer shall have delivered to the
Trustee an Officer's Certificate of a Servicing Officer certifying as to the
name and address of the Person to which the Mortgage File or the documents
therein were delivered and the purpose or purposes of such delivery.
Section 3.14. DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or that otherwise are
collected by the Master Servicer as Liquidation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, the Master Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds, including but not limited to, any funds on deposit in the
Protected Account, shall be held by the Master Servicer for and on behalf of the
Trustee and shall be and remain the sole and exclusive property of the Trustee,
subject to the applicable provisions of this Agreement. The Master Servicer also
agrees that it shall not create, incur or subject any Mortgage File or any funds
that are deposited in the Protected Account or Distribution Account or in any
Servicing Account (as defined in Section 3.06), or any funds that otherwise are
or may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of set off against any Mortgage File or any funds collected on,
or in connection with, a Mortgage Loan, except, however, that the Master
Servicer shall be entitled to set off against and deduct from any such funds any
amounts that are properly due and payable to the Master Servicer under this
Agreement.
Section 3.15. SERVICING COMPENSATION.
As compensation for its activities hereunder, the Master Servicer
shall be entitled to retain or withdraw from the Protected Account out of each
payment of interest on a Mortgage Loan included in the Trust Fund an amount
equal to the Master Servicing Fee at the Master Servicing Fee Rate on the Stated
Principal Balance of the related Mortgage Loan for the period covered by such
interest payment.
Additional servicing compensation in the form of any Excess Proceeds,
assumption fees, late payment charges, Prepayment Charges, all income and gain
net of any losses realized from Permitted Investments with respect to funds in
or credited to the Protected Account shall be retained by the Master Servicer to
the extent not required to be deposited in the Protected Account pursuant to
Section 3.05 or 3.12(a) hereof and, with respect to any Due Date, any interest
paid on Simple Interest Loans in excess of 30 days interest. The Master Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including payment of any premiums for hazard
insurance, as required by Section 3.10 hereof) and shall not be entitled to
reimbursement therefor except as specifically provided in Sections 3.08 and 3.12
hereof.
Section 3.16. ACCESS TO CERTAIN DOCUMENTATION.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of the Certificates and
the examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices of the Master Servicer designated by it.
Nothing in this Section shall limit the obligation of the Master Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the Master Servicer to provide access as provided
in this Section as a result of such obligation shall not constitute a breach of
this Section.
Section 3.17. ANNUAL STATEMENT AS TO COMPLIANCE; ANNUAL INDEPENDENT
ACCOUNTANT'S SERVICING REPORT.
(a) The Master Servicer shall deliver to the Depositor and the Trustee
within 90 days after the end of each of its fiscal years, commencing with the
fiscal year ending on November 30, 2002, an Officer's Certificate stating, as to
the signer thereof, that (i) a review of the activities of the Master Servicer
during the preceding calendar year and of the performance of the Master Servicer
under this Agreement has been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such review, the Master 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 officer and the nature and status
thereof and (iii) to the best of such officer's knowledge, each Subservicer, if
any, has fulfilled all its obligations under its Subservicing Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation specifying each such default known to such officer and the
nature and status thereof. The Trustee shall forward a copy of each such
statement to each Rating Agency. Copies of such statement shall be provided by
the Trustee to any Certificateholder upon request at the Master Servicer's
expense, provided such statement is delivered by the Master Servicer to the
Trustee.
(b) The Master Servicer, at its expense, shall cause a nationally
recognized firm of independent certified public accountants to furnish a
statement to the Trustee, the Rating Agencies and the Seller within 90 days
after the end of each of its fiscal years, commencing with the fiscal year
ending on November 30, 2002, to the effect that, with respect to the most
recently ended fiscal year, such firm has examined certain records and documents
relating to the Master Servicer's performance of its servicing obligations under
this Agreement and pooling and servicing and trust agreements in material
respects similar to this Agreement and to each other and that, on the basis of
such examination conducted substantially in compliance with the audit program
for mortgages serviced for Xxxxxxx Mac or the Uniform Single Attestation Program
for Mortgage Bankers, such firm is of the opinion that the Master Servicer's
activities have been conducted in compliance with this Agreement, or that such
examination has disclosed no material items of noncompliance except for (i) such
exceptions as such firm believes to be immaterial, (ii) such other exceptions as
are set forth in such statement and (iii) such exceptions that the Uniform
Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages Serviced by Xxxxxxx Mac requires it to report. Copies of such
statements shall be provided to any Certificateholder, upon request, by the
Master Servicer, or by the Trustee at the expense of the Master Servicer if such
Master Servicer shall fail to provide such copies. If any such report discloses
exceptions that are material, the Master Servicer shall advise the Trustee
whether such exceptions have been or are susceptible of cure, and will take
prompt action to do so.
Section 3.18. REPORTS FILED WITH SECURITIES AND EXCHANGE COMMISSION.
Within 15 days after each Distribution Date, the Trustee shall, in
accordance with industry standards, file with the Commission via the Electronic
Data Gathering and Retrieval System ("XXXXX"), a Form 8-K and shall furnish a
copy of the monthly statement to the Certificateholders for such Distribution
Date as an exhibit thereto. Prior to January 30, in each year, the Trustee
shall, in accordance with industry standards and only if instructed by the
Depositor, file a Form 15 Suspension Notice with respect to the Trust Fund, if
applicable. Prior to March 30 in each year, the Trustee shall file a Form 10-K,
in substance conforming to industry standards, with respect to the Trust Fund.
The Depositor hereby grants to the Trustee a limited power of attorney to
execute and file each such document on behalf of the Depositor. Such power of
attorney shall continue until either the earlier of (i) receipt by Trustee from
the Depositor of written termination of such power of attorney and (ii) the
termination of the Trust Fund. The Depositor agrees to promptly furnish to the
Trustee, from time to time upon request, such further information, reports and
financial statements within its control related to this Agreement and the
Mortgage Loans as the Trustee reasonably deems appropriate to prepare and file
all necessary reports with the Commission. The Trustee shall have no
responsibility to file any items other than those specified in this Section
3.18; provided, however, the Trustee will cooperate with the Depositor in
connection with any additional filings with respect to the Trust Fund as the
Depositor deems necessary under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Copies of all reports filed by the Trustee under the
Exchange Act shall be sent to the Depositor c/o Bear, Xxxxxxx & Co. Inc., Attn:
Managing Director-Analysis and Control, Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx,
Xxx Xxxx 00000-0000. Fees and expenses incurred by the Trustee in connection
with this Section 3.18 shall not be reimbursable from the Trust Fund.
Section 3.19. REMIC-RELATED COVENANTS.
For as long as each REMIC shall exist, the Trustee shall act in
accordance herewith to assure continuing treatment of such REMIC as a REMIC, and
the Trustee shall comply with any directions of the Seller, the Depositor, or
the Master Servicer to assure such continuing treatment. In particular, the
Trustee shall not (a) sell or permit the sale of all or any portion of the
Mortgage Loans or of any investment of deposits in an Account unless such sale
is as a result of a repurchase of the Mortgage Loans pursuant to this Agreement
or the Trustee has received a REMIC Opinion prepared at the expense of the Trust
Fund; and (b) other than with respect to a substitution pursuant to Section 2.04
of this Agreement, accept any contribution to any REMIC after the Startup Day
without receipt of a REMIC Opinion.
Section 3.20. OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.
Beginning on the first Business Day of the fiscal quarter immediately
following the date on which a Mortgage Loan has become at least 91 days
delinquent, the Master Servicer, in its sole discretion, shall have the right to
elect (by written notice sent to the Trustee) to purchase for its own account
from the Trust Fund any such Mortgage Loan at a price equal to the Purchase
Price. The Purchase Price for any Mortgage Loan purchased hereunder shall be
deposited in the Protected Account and the Trustee, upon receipt of a Request
for Release from the Master Servicer, shall release or cause to be released to
the Master Servicer, the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment prepared by the Master Servicer, in
each case without recourse, as shall be necessary to vest in the Master Servicer
any Mortgage Loan released pursuant hereto and the Master Servicer shall succeed
to all the Trust's right, title and interest in and to such Mortgage Loan and
all security and documents related thereto. Such assignment shall be an
assignment outright and not for security. The Master Servicer shall thereupon
own such Mortgage Loan, and all security and documents, free of any further
obligation to the Trustee or the Certificateholders with respect thereto.
Notwithstanding the foregoing, any such optional right of repurchase by the
Master Servicer hereunder with respect to a delinquent Mortgage Loan shall, if
unexercised, terminate on the earlier of (i) the date on which such delinquency
has been cured or (ii) the last Business Day of such fiscal quarter immediately
following the date on which such Mortgage Loan became 91 days delinquent,
provided however, that such optional right of repurchase shall be reinstated if
(a) in the case of clause (i), the related Mortgage Loan shall thereafter again
have become 91 or more days delinquent and (b) in the case of clause (ii), such
delinquency shall have been subsequently cured and the related Mortgage Loan
shall thereafter again become 91 or more days delinquent in any subsequent
fiscal quarter. In either event, the purchase option shall again become
exercisable on the first day of the fiscal quarter immediately following the
date on which the related Mortgage Loan again becomes at least 91 days
delinquent.
Section 3.21. MAINTENANCE OF PRIMARY MORTGAGE INSURANCE POLICIES.
(a) The Master Servicer shall not take any action that would result in
noncoverage under any applicable Primary Mortgage Insurance Policy of any loss
which, but for the actions of the Master Servicer, would have been covered
thereunder. The Master Servicer shall use its best efforts to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), each Primary Mortgage Insurance Policy, applicable to any
Mortgage Loan. The Master Servicer shall not cancel or refuse to renew any such
Primary Mortgage Insurance Policy that is in effect at the date of the initial
issuance of a Mortgage Note and is required to be kept in force hereunder.
(b) The Master Servicer agrees to present, on behalf of the Trustee
and the Certificateholders, claims to the insurer under any Primary Mortgage
Insurance Policy and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Mortgage Insurance Policy
respecting defaulted Mortgage Loans. Pursuant to Section 3.05, any amounts
collected by the Master Servicer under any Primary Mortgage Insurance Policies
shall be deposited in the Protected Account, subject to withdrawal pursuant to
Section 3.08. Subject to the last sentence of the first paragraph of Section
3.01, the Trustee shall execute any powers of attorney or other documentation
prepared and provided to it by the Master Servicer in order enable the Master
Servicer to perform its obligations pursuant to this Section 3.21.
(c) The Master Servicer shall retain possession and custody, on behalf
of the Trust Fund, of the originals (to the extent available) of any Primary
Mortgage Insurance Policies, or certificate of insurance, if applicable and
available, and any certificates of renewal as to the foregoing as may be issued
from time to time. The Master Servicer shall, upon receipt of written request,
permit the Trustee to inspect or, if reasonably practicable, provide copies to
the Trustee of the originals of any Primary Mortgage Insurance Policies, any
certificates of renewal, and such other documents or instruments that constitute
portions of the servicing files retained by the Master Servicer with respect to
the Mortgage Loans.
ARTICLE IV.
[RESERVED]
ARTICLE V.
DISTRIBUTIONS, AND ADVANCES
BY THE MASTER SERVICER
Section 5.01. ADVANCES.
Subject to the conditions of this Article V, the Master Servicer, as
required below, shall make an Advance and deposit such Advance in the Protected
Account. Each such Advance shall be remitted to the Protected Account no later
than 1:00 p.m. Central time on the Master Servicer Advance Date in immediately
available funds. The Master Servicer shall be obligated to make any such Advance
only to the extent that such advance would not be a Nonrecoverable Advance. If
the Master Servicer shall have determined that it has made a Nonrecoverable
Advance or that a proposed Advance or a lesser portion of such Advance would
constitute a Nonrecoverable Advance, the Master Servicer shall deliver (i) to
the Trustee for the benefit of the Certificateholders funds constituting the
remaining portion of such Advance, if applicable, and (ii) to the Depositor,
each Rating Agency and the Trustee an Officer's Certificate setting forth the
basis for such determination.
In lieu of making all or a portion of such Advance from its own funds,
the Master Servicer may (i) cause to be made an appropriate entry in its records
relating to the Protected Account that any Amount Held for Future Distribution
has been used by the Master Servicer in discharge of its obligation to make any
such Advance and (ii) transfer such funds from the Protected Account to the
Distribution Account. Any funds so applied and transferred shall be replaced by
the Master Servicer by deposit in the Protected Account no later than the close
of business on the Business Day immediately preceding the Distribution Date on
which such funds are required to be distributed pursuant to this Agreement. The
Master Servicer shall be entitled to be reimbursed from the Protected Account
for all Advances of its own funds made pursuant to this Section as provided in
Section 3.08. The obligation to make Advances with respect to any Mortgage Loan
shall continue until such Mortgage Loan is paid in full or the related Mortgaged
Property or related REO Property has been liquidated or until the purchase or
repurchase thereof (or substitution therefor) from the Trust Fund pursuant to
any applicable provision of this Agreement, except as otherwise provided in this
Section 5.01.
Section 5.02. OMPENSATING INTEREST PAYMENTS.
In the event that there is a Prepayment Interest Shortfall arising
from a voluntary Principal Prepayment in part or in full by the Mortgagor, the
Master Servicer shall, to the extent of the Master Servicing Fee for such
Distribution Date, deposit into the Distribution Account, as a reduction of the
Master Servicing Fee for such Distribution Date, no later than the close of
business on the Business Day immediately preceding such Distribution Date, an
amount equal to the Prepayment Interest Shortfall as Compensating Interest; and
in case of such deposit, the Master Servicer shall not be entitled to any
recovery or reimbursement from the Depositor, the Trustee, the Seller, the Trust
Fund or the Certificateholders.
Section 5.03. REMIC DISTRIBUTIONS.
On each Distribution Date the Trustee, shall allocate or be deemed to
allocate distributions to the REMIC I Regular Interests, the REMIC II Regular
Interests, and the REMIC III Regular Interests, in accordance with Section 5.06
hereof.
Section 5.04. DISTRIBUTIONS.
(a) On each Distribution Date, an amount equal to the Interest Funds
(net of the Trustee Fee) and Principal Funds for such Distribution Date shall be
withdrawn by the Trustee from the Distribution Account and distributed in
accordance with the Remittance Report for such Distribution Date, in the
following order of priority:
FIRST, from Interest Funds, to pay accrued and unpaid interest on the
Offered Certificates, other than the Residual Certificates, in the following
order of priority:
1. From Interest Funds to the Class A-IO Certificates, the Current
Interest and any Interest Carry Forward Amount for such Class;
2. From remaining Interest Funds to the Class A-1, Class A-2 and Class
A-3 Certificates, pro rata based on such amounts due to each such
class the Current Interest and any Interest Carry Forward Amount for
such Classes;
3. From remaining Interest Funds, to the Class M-1 Certificates, the
Class M-2 Certificates and the Class B Certificates, sequentially, in
that order, the Current Interest for each such Class;
4. Any Excess Spread to the extent necessary to meet a level of
overcollateralization equal to the Specified Overcollateralization
Amount will be the Extra Principal Distribution Amount and will be
included as part of the Principal Distribution Amount; and
5. Any Remaining Excess Spread will be added to any Excess
Overcollateralization Amount and will be applied as Excess Cashflow
pursuant to clauses THIRD through SEVENTH below.
Notwithstanding the provisions of clauses FIRST 4 and 5, above, on the
first Distribution Date, all Excess Spread will be paid to the holders of the
Class B-IO Certificates.
On any Distribution Date, any shortfalls resulting from the application of
the Relief Act and any Prepayment Interest Shortfalls to the extent not covered
by Compensating Interest will be allocated as set forth in the definition of
"Current Interest" herein.
SECOND, from Principal Funds, to pay as principal on the Offered
Certificates entitled to payments of principal, in the following order of
priority:
(A) For each Distribution Date (i) prior to the Stepdown Date or (ii) on which
a Trigger Event is in effect:
1. To the Class A-1, Class A-2 and Class A-3 Certificates, pro rata based
upon their respective Certificate Principal Balances, the Principal
Distribution Amount until their respective Certificate Principal
Balances are reduced to zero;
2. To the Class M-1 Certificates, any remaining Principal Distribution
Amount until the Certificate Principal Balance thereof is reduced to
zero;
3. To the Class M-2 Certificates, any remaining Principal Distribution
Amount until the Certificate Principal Balance thereof is reduced to
zero; and
4. To the Class B Certificates, any remaining Principal Distribution
Amount until the Certificate Principal Balance thereof is reduced to
zero.
(B) For each Distribution Date on or after the Stepdown Date, so long as a
Trigger Event is not in effect:
1. To the Class A-1, Class A-2 and Class A-3 Certificates, pro rata based
upon their respective Certificate Principal Balances, from the
Principal Distribution Amount, the Class A Principal Distribution
Amount until their respective Certificate Principal Balances are
reduced to zero;
2. To the Class M-1 Certificates, from any remaining Principal
Distribution Amount, the Class M-1 Principal Distribution Amount,
until the Certificate Principal Balance thereof is reduced to zero;
3. To the Class M-2 Certificates, from any remaining Principal
Distribution Amount, the Class M-2 Principal Distribution Amount,
until the Certificate Principal Balance thereof is reduced to zero;
and
4. To the Class B Certificates, from any remaining Principal Distribution
Amount, the Class B Principal Distribution Amount, until the
Certificate Principal Balance thereof is reduced to zero.
THIRD, from any Excess Cashflow, to the Class A-1, Class A-2 and Class A-3
Certificates, pro rata based on their respective Certificate Principal Balances,
an amount equal to any Unpaid Applied Realized Loss Amount for such respective
Classes for such Distribution Date.
FOURTH, from any remaining Excess Cashflow, to the Class M-1 Certificates
an amount equal to (i) any Interest Carry Forward Amount and then (ii) any
Unpaid Applied Realized Loss Amount for such Class for such Distribution Date.
FIFTH, from any remaining Excess Cashflow, to the Class M-2 Certificates an
amount equal to (i) any Interest Carry Forward Amount and then (ii) any Unpaid
Applied Realized Loss Amount for such Class for such Distribution Date.
SIXTH, from any remaining Excess Cashflow, to the Class B Certificates an
amount equal to (i) any Interest Carry Forward Amount and then (ii) any Applied
Unpaid Realized Loss Amount for such Class and such Distribution Date.
SEVENTH, from any remaining Excess Cashflow, to the Class B-IO
Certificates, the Class B-IO Distribution Amount.
EIGHTH, any remaining amounts to each of the Class R-1 Certificates, Class
R-2 Certificates and Class R-3 Certificates, based on the related REMIC in which
such amounts remain.
Notwithstanding the foregoing, on the first Distribution Date, an amount
equal to $50 shall be distributed to each of the Class R-1 Certificates, the
Class R-2 Certificates and the Class R-3 Certificates from funds deposited in
the Distribution Account on the Closing Date.
Any amounts distributed to a Class of Certificates in respect of any Unpaid
Applied Realized Loss Amount will not be applied to reduce the Certificate
Principal Balance of such Class.
(b) Subject to Section 10.02 hereof respecting the final distribution,
on each Distribution Date the Trustee shall make distributions to each
Certificateholder of record on the preceding Record Date either by wire transfer
in immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor, if such Holder has so notified
the Trustee at least 5 Business Days prior to the related Record Date or, if
not, by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register. Notwithstanding
the foregoing, but subject to Section 10.02 hereof respecting the final
distribution, distributions with respect to Certificates registered in the name
of a Depository shall be made to such Depository in immediately available funds.
(c) On or before 5:00 p.m. Central time on the fifth Business Day
immediately preceding each Distribution Date, the Master Servicer shall deliver
a report to the Trustee in electronic format (or by such other means as the
Master Servicer and the Trustee may agree from time to time) containing such
data and information, as agreed to by the Master Servicer and the Trustee so as
to permit the Trustee to prepare the Monthly Statement to Certificateholders and
to make the required distributions for the related Distribution Date (the
"REMITTANCE REPORT").
Section 5.04A. ALLOCATION OF REALIZED LOSSES.
Any Realized Losses with respect to the Mortgage Loans shall be
applied on each Distribution Date after the distributions provided for in
Section 5.04 in reduction of the Certificate Principal Balance of the Class or
Classes of Certificates in the following order of priority until the Certificate
Principal Balance of the applicable Class or Classes of Certificates has been
reduced to zero:
(i) the Class B Certificates;
(ii) the Class M-2 Certificates;
(iii) the Class M-1 Certificates; and
(iv) pro rata based upon Certificate Principal Balance to the Class
A-1, Class A-2 and Class A-3 Certificates provided that so long as the
Class A-3 Certificates are outstanding the portion of the Realized Loss
otherwise allocable to the Class A-2 Certificates will be allocated to the
Class A-3 Certificates.
No reduction of the Certificate Principal Balance of any Class shall
be made on any Distribution Date on account of Realized Losses to the extent
that such a reduction would have the effect of reducing the aggregate
Certificate Principal Balance of all of the Certificates as of that Distribution
Date to an amount less than the aggregate Stated Principal Balance of all
Mortgage Loans as of the related Due Date.
Section 5.05. MONTHLY STATEMENTS TO CERTIFICATEHOLDERS.
(a) Not later than each Distribution Date, the Trustee shall prepare,
based on information received from the Master Servicer, and make available to
each Holder of Certificates, the Trustee, the Master Servicer and the Depositor
a statement setting forth for the Certificates:
(i) the amount of the related distribution to Holders of each Class
allocable to principal, separately identifying (A) the aggregate amount of
any Principal Prepayments included therein, (B) the aggregate of all
scheduled payments, except with respect to Simple Interest Loans, of
principal included therein, and with respect to Simple Interest Loans, the
amount of actual principal received included therein, and (C) the Extra
Principal Distribution Amount (if any);
(ii) the amount of such distribution to Holders of each Class
allocable to interest;
(iii) the Certificate Principal Balance or Certificate Notional
Balance of each Class, before and after giving effect (i) to all
distributions allocable to principal on such Distribution Date and (ii) the
allocation of any Applied Realized Loss Amounts for such Distribution Date;
(iv) the aggregate of the Stated Principal Balances of all of the
Mortgage Loans following the distributions made on such Distribution Date;
(v) the amount of the Master Servicing Fees paid to the Master
Servicer and the Trustee Fees paid to the Trustee for the related Due
Period;
(vi) the Pass-Through Rate for each Class of Offered Certificates with
respect to the current Accrual Period, and, if applicable, whether such
Pass-Through Rate was limited by the applicable Interest Rate Cap;
(vii) any Interest Carry Forward Amount for each Class of Offered
Certificates;
(viii) the amount of Advances included in the distribution on such
Distribution Date;
(ix) the cumulative amount of Applied Realized Loss Amounts to date;
(x) with respect to each Class of Offered Certificates (other than the
Residual Certificates) the amount of any Interest Carry Forward Amount and
any Unpaid Applied Realized Loss Amounts following the Distribution Date;
(xi) the number and aggregate principal amounts of Mortgage Loans (A)
Delinquent (exclusive of Mortgage Loans in foreclosure and bankruptcy) (1)
31 to 60 days, (2) 61 to 90 days and (3) 91 or more days, (B) in
foreclosure and delinquent (1) 31 to 60 days, (2) 61 to 90 days and (3) 91
or more days and (C) in bankruptcy and delinquent (1) 31 to 60 days, (2) 61
to 90 days and (3) 91 or more days, in each case as of the close of
business on the last day of the calendar month preceding such Distribution
Date;
(xii) with respect to any Mortgage Loan that was liquidated during the
preceding calendar month, the loan number and Stated Principal Balance of,
and Realized Loss on, such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii) the total number and principal balance of any real estate owned
or REO Properties as of the close of business on the Determination Date
preceding such Distribution Date;
(xiv) the three month rolling average of the percent equivalent of a
fraction, the numerator of which is the aggregate stated Principal Balance
of the Mortgage Loans that are 60 days or more delinquent or are in
bankruptcy or foreclosure or are REO Properties, and the denominator of
which is the aggregate Stated Principal Balance of all of the Mortgage
Loans as of the last day of the calendar month preceding such Distribution
Date;
(xv) the Realized Losses during the related Prepayment Period and the
cumulative Realized Losses for the Mortgage Loans through the end of the
preceding month;
(xvi) whether a Trigger Event exists; and
(xvii) the Overcollateralization Amount.
The Trustee may make the foregoing monthly statement (and, at its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders via the Trustee's internet
website. The Trustee's internet website shall initially be located at
"xxx.xxxxxxxx.xxx". Assistance in using the website can be obtained by calling
the Trustee's customer service desk at (000) 000-0000. Parties that are unable
to use the above distribution options are entitled to have a paper copy mailed
to them via first class mail by calling the customer service desk and indicating
such. The Trustee may change the way monthly statements are distributed in order
to make such distributions more convenient or more accessible to the above
parties.
(b) The Trustee's responsibility for making the above information
available to the Certificateholders is limited to the availability, timeliness
and accuracy of the information derived from the Master Servicer. The Trustee
will make available a copy of each statement provided pursuant to this Section
5.05 to each Rating Agency.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to the Master Servicer and upon
request to each Person who at any time during the calendar year was a
Certificateholder, a statement containing the information set forth in clauses
(a)(i) and (a)(ii) of this Section 5.05 aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time in effect.
(d) Upon filing with the Internal Revenue Service, the Trustee shall
furnish to the Holders of the Residual Certificates the applicable Form 1066 and
each applicable Form 1066Q and shall respond promptly to written requests made
not more frequently than quarterly by any Holder of a Residual Certificate with
respect to the following matters:
(i) The original projected principal and interest cash flows on the
Closing Date on each Class of regular and residual interests created
hereunder and on the Mortgage Loans, based on the Prepayment Assumption;
(ii) The projected remaining principal and interest cash flows as of
the end of any calendar quarter with respect to each Class of regular and
residual interests created hereunder and the Mortgage Loans, based on the
Prepayment Assumption;
(iii) The applicable Prepayment Assumption and any interest rate
assumptions used in determining the projected principal and interest cash
flows described above;
(iv) The original issue discount (or, in the case of the Mortgage
Loans, market discount) or premium accrued or amortized through the end of
such calendar quarter with respect to each Class of regular or residual
interests created hereunder and to the Mortgage Loans, together with each
constant yield to maturity used in computing the same;
(v) The treatment of losses realized with respect to the Mortgage
Loans or the regular interests created hereunder, including the timing and
amount of any cancellation of indebtedness income of a REMIC with respect
to such regular interests or bad debt deductions claimed with respect to
the Mortgage Loans;
(vi) The amount and timing of any non-interest expenses of a REMIC;
and
(vii) Any taxes (including penalties and interest) imposed on the
REMIC, including, without limitation, taxes on "prohibited transactions,"
"contributions" or "net income from foreclosure property" or state or local
income or franchise taxes.
The information pursuant to clauses (i), (ii), (iii) and (iv) above
shall be provided by the Depositor to the Trustee.
Section 5.06. REMIC DESIGNATIONS AND ALLOCATIONS.
(a) The Trustee shall elect that each of REMIC I, REMIC II and REMIC
III shall be treated as a REMIC under Section 860D of the Code. Any
inconsistencies or ambiguities in this Agreement or in the administration of
this Agreement shall be resolved in a manner that preserves the validity of such
REMIC elections. The assets of REMIC I shall include the Mortgage Loans and all
interest owing in respect of the Mortgage Loans and principal due thereon, the
Distribution Account, the Protected Accounts, any REO Property, and any proceeds
of the foregoing. The REMIC I Regular Interests shall constitute the assets of
REMIC II. The REMIC II Regular Interests shall constitute the assets of REMIC
III.
(b) REMIC I will be evidenced by (x) the Class I-Q and Class I-NAS
interests (together, the "REMIC I Regular Interests"), which (i) will be
uncertificated and non-transferable, and (ii) are hereby designated as the
"regular interests" in REMIC I and (y) the Class R-1 Certificate, which is
hereby designated as the single "residual interest" in REMIC I (the REMIC I
Regular Interests, together with the Class R-1 Certificate, the "REMIC I
Certificates"). The REMIC I Regular Interests shall be recorded on the records
of REMIC I as being issued to and held by the Trustee on behalf of REMIC II.
Principal payments on the Mortgage Loans and Realized Losses on the
Mortgage Loans will be allocated first to the Class I-Q Interests and then to
the Class I-NAS Interests until the principal balance of each such class is
reduced to zero.
The REMIC I Certificates will have the following designations, initial
principal balances and pass-through rates:
Pass-
REMIC I Initial Principal Through
CERTIFICATES BALANCE RATE
I-NAS $ 18,193,000 (1)
I-Q $163,741,777 (1)
R-1 $ 50.00 0%(2)
(1) The pass-through rate on this class of REMIC I Regular Interests shall for
any Distribution Date equal the weighted average of the Net Mortgage Rates
of the Mortgage Loans as of the last day of the related Due Period.
(2) On each Distribution Date, amounts, if any, remaining in REMIC I after
payments of interest and principal, as designated above, will be
distributed to the Class R-1 Certificate.
(c) REMIC II will be evidenced by (x) the Class II-io, Class II-a1,
Class II-a2, Class II-a3, Class II-m1, Class II-m2, Class II-b and Class II-Q
(the "REMIC II Regular Interests"), which are hereby designated as the "regular
interests" in REMIC II and will be uncertificated and non-transferable and (y)
the Class R-2 Certificate, which is hereby designated as the single "residual
interest" in REMIC II (the REMIC II Regular Interests, together with the Class
R-2 Certificate, the "REMIC II Certificates"). The REMIC II Regular Interests
shall be recorded on the records of REMIC II as being issued to and held by the
Trustee on behalf of REMIC III.
Interest from the REMIC I Regular Interests that corresponds to
interest on the Mortgage Loans that is allocable to payments of principal on the
Certificates (the "Turbo Amount") will not be paid directly as principal to the
REMIC II Regular Interests, but instead a portion of the interest payable with
respect to the Class II-Q REMIC II Regular Interest which equals 0.01% of the
Turbo Amount will be payable as a reduction of the principal balances of the
Class II-a1, Class II-a2, Class II-a3, Class II-m1, Class II-m2 and Class II-b
REMIC II Regular Interests in the same manner in which the Turbo Amount is
allocated among the Class X-0, Xxxxx X-0, Class A-3, Class M-1, Class M-2 and
Class B Certificates, respectively (and will be accrued and added to principal
on the Class II-Q REMIC II Regular Interests.
Principal payments on the REMIC I Regular Interests held by REMIC II
shall be allocated 99.99% to the Class II-Q REMIC II Regular Interests, and
0.01% to the Class II-a1, Class II-a2, Class II-a3, Class II-m1, Class II-m2 and
Class II-b REMIC II Regular Interests, until paid in full. The aggregate amount
of principal allocated to the Class II-a1, Class II-a2, Class II-a3, Class
II-m1, Class II-m2 and Class II-b REMIC II Regular Interests shall be
apportioned among such classes in the same manner as principal (other than the
Turbo Amount) is payable with respect to the Class X-0, Xxxxx X-0, Class A-3,
Class M-1, Class M-2 and Class B Certificates, respectively. Notwithstanding the
above, principal payments on REMIC I Regular Interests that are attributable to
the Excess Overcollateralization Amount shall be allocated to the Class II-Q
REMIC II Regular Interests until paid in full. Realized Losses shall be applied
such that after all distributions have been made on such Distribution Date (i)
the Principal Balances of the Class II-a1, Class II-a2, Class II-a3, Class
II-m1, Class II-m2 and Class II-b REMIC II Regular Interests are each .01% of
the Principal Balances of the Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class
M-2 and Class B Certificates, respectively; and (ii) the remainder to the Class
II-Q REMIC II Regular Interest. The REMIC II Certificates will have the
following designations and pass-through rates, and distributions of principal
and interest thereon shall be allocated to the Certificates in the following
manner:
Pass- Allocation
REMIC II Initial Principal Through of
CERTIFICATES BALANCE RATE INTEREST
------------ ------- ---- --------
II-a1 $7,050.00 (1) (2)(3)
II-a2 $7,783.10 (1) (2)(3)
II-a3 $1,000.00 (1) (2)(3)
II-m1 $1,046.10 (1) (2)(3)
II-m2 $591.30 (1) (2)(3)
II-b $272.90 (1) (2)(3)
II-Q $181,916,583.60 (1) (2)(3)
II-io N/A (4) A-IO
R-2 $50.00(5) 0%(5) ---
---------------
* Notional
(1) The pass-through rate on this REMIC II Regular Interest shall at any time
of determination equal the weighted average of the pass-through rates of
the Class II-Q and Class I-NAS Interests -- after first subtracting from
the pass-through rate of the Class I-NAS Interest for the first 30 months,
the lesser of (i) 8% and (ii) the weighted average interest rate on the
REMIC I Regular Interests at such time, and after 30 months, no
subtraction.
(2) Except as provided in note (3) below, interest will be allocated among the
REMIC III Certificates in the same proportion as interest is payable on
such REMIC III Certificates.
(3) Any interest with respect to this REMIC II Regular Interest in excess of
the product of:
(i) 10,000 times the weighted average coupon of the Class II-a1, Class
II-a2, Class II-a3, Class II-m1, Class II-m2, Class II-b and Class II-Q
Regular Interests, where each of Class II-a1, Class II-a2, Class II-a3 and
Class II-m1, Class II-m2 and Class II-b is first subject to a cap and floor
equal to the Pass-Through Rates of the Class A-1, Class X-0, Xxxxx X-0,
Class M-1, Class M-2 and Class B Certificates, respectively, and the Class
II-Q REMIC II Regular Interest is subject to a cap equal to 0%, and
(ii) the principal balance of this REMIC II Regular Interest,
will be allocated to the Class B-IO Certificates. However, the Class B-IO
Certificates shall be subordinated to the extent provided in Section 5.04.
(4) The Class II-io REMIC II Regular Interest shall be entitled to 8%, but not
greater than the weighted average interest rate on the REMIC I Regular
Interests at such times, stripped from the interest on the Class I-NAS
REMIC II Regular Interest for 30 months and nothing thereafter.
(5) On each Distribution Date, amounts, if any, remaining in REMIC II after
payments of interest and principal, as designated above, will be
distributed to the Class R-2 Certificate.
(d) The Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
B, Class A-IO and Class B-IO Certificates, are hereby designated as "regular
interests" with respect to REMIC III (the "REMIC III Regular Interests") and the
Class R-3 Certificate is hereby designated as the single "residual interest"
with respect to REMIC III. On each Distribution Date, amounts, if any, remaining
in REMIC III after payments of interest and principal as designated herein shall
be distributed to the Class R-3 Certificate. The terms of the REMIC III Regular
Interests are set out in Section 6.01.
ARTICLE VI.
THE CERTIFICATES
Section 6.01. THE CERTIFICATES.
The Certificates shall be substantially in the forms attached hereto
as Exhibits A-1 through A-11. The Certificates shall be issuable in registered
form, in the minimum dollar denominations, integral dollar multiples in excess
thereof (except that one Certificate of each Class may be issued in a different
amount which must be in excess of the applicable minimum dollar denomination)
and aggregate dollar denominations as set forth in the following table:
Original
Integral Certificate
Multiples Principal
Minimum in Excess of Balance/or Notional Pass-Through
Class Denomination Minimum Principal Balance Rate
----------------- ---------------------- ----------------------- ---------------------- ------------------------
A-1 $25,000 $1,000 $75,000,000 Adjustable(2)
A-2 $25,000 $1,000 $77,831,000 Adjustable(3)
A-3 $25,000 $1,000 $10,000,000 Adjustable(4)
A-IO $25,000 $1,000 Notional(1) 8.00%(5)
M-1 $25,000 $1,000 $10,461,000 Adjustable(6)
M-2 $25,000 $1,000 $5,913,000 Adjustable(7)
B $25,000 $1,000 $2,729,000 Adjustable(8)
B-IO $10,000,000 $1,000,000 Notional(9) N/A
R-1 100% N/A $50 N/A
R-2 100% N/A $50 N/A
R-3 100% N/A $50 N/A
--------------
(1) Initially $18,193,000 and thereafter the lesser of $18,193,000 the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period.
(2) For the first Distribution Date, 2.55813% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class A-1 Margin for such Distribution
Date, and (ii) the applicable Interest Rate Cap.
(3) For the first Distribution Date, 2.50813% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class A-2 Margin for such Distribution
Date, and (ii) the applicable Interest Rate Cap.
(4) For the first Distribution Date, 2.75813% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class A-3 Margin for such Distribution
Date, and (ii) the applicable Interest Rate Cap.
(5) Subject to the applicable Interest Rate Cap.
(6) For the first Distribution Date, 3.10813% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class M-1 Margin for such Distribution
Date, and (ii) the applicable Interest Rate Cap.
(7) For the first Distribution Date, 3.60813% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class M-2 Margin for such Distribution
Date, and (ii) the applicable Interest Rate Cap.
(8) For the first Distribution Date, 4.60813% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class B Margin for such Distribution Date,
and (ii) the applicable Interest Rate Cap.
(9) Initially $181,934,777 and thereafter the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such authentication and delivery. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate the countersignature
of the Trustee by manual signature, and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly countersigned and delivered hereunder. All
Certificates shall be dated the date of their countersignature. On the Closing
Date, the Trustee shall authenticate the Certificates to be issued at the
written direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 6.02. CERTIFICATE REGISTER; REGISTRATION OF TRANSFER AND EXCHANGE
OF CERTIFICATES.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 6.09 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of Transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
Transfer of any Certificate, the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Certificates
of the same Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of Transfer or exchange shall be accompanied by a written
instrument of Transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but 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 may be required.
All Certificates surrendered for registration of Transfer or exchange
shall be canceled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No Transfer of a Class B-IO Certificate shall be made unless such
Transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a Transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
Transfer and such Certificateholder's prospective transferee shall each certify
to the Trustee in writing the facts surrounding the Transfer in substantially
the forms set forth in Exhibit E (the "Transferor Certificate") and (x) deliver
a letter in substantially the form of either Exhibit F (the "Investment Letter")
or Exhibit G (the "Rule 144A Letter") or (y) there shall be delivered to the
Trustee an Opinion of Counsel that such Transfer may be made pursuant to an
exemption from the Securities Act, which Opinion of Counsel shall not be an
expense of the Depositor, the Seller, the Master Servicer or the Trustee. The
Depositor shall provide to any Holder of a Class B-IO Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for Transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. The Trustee and the Master Servicer shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Class B-IO Certificate desiring to effect
such Transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Seller, and the Master 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.
No Transfer of an ERISA Restricted Certificate shall be made unless
the Trustee and the Master Servicer shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Trustee and the Master Servicer, to the effect
that such transferee is not an employee benefit plan subject to Section 406 of
ERISA and/or a plan subject to Section 4975 of the Code ("Plan"), or a Person,
directly or indirectly, acting on behalf of any such Plan, or (ii) in the case
of any such ERISA Restricted Certificate presented for registration in the name
of a Plan, or a trustee of any Plan or any other person, directly or indirectly,
acting on behalf of any such Plan, a representation satisfactory to the Trustee
and the Master Servicer to the effect that neither the purchase or holding of
such ERISA Restricted Certificate nor the servicing, management and operation of
the Trust Fund will result in any prohibited transactions under ERISA or Section
4975 of the Code which will not be covered under Prohibited Transactions Class
Exemption ("PTCE") 00-00, XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23 or some
other applicable exemption and will not subject the Trustee or the Master
Servicer to any fiduciary duties under ERISA in addition to those expressly
undertaken in this Agreement, which in the case of a Book-Entry Certificate
shall be deemed to have been represented by the Transferee. Notwithstanding
anything else to the contrary herein, any purported transfer of an ERISA
Restricted Certificate to or on behalf of any Plan without satisfying the above
conditions shall be void and of no effect. Neither the Trustee nor the Master
Servicer shall be required to monitor, determine or inquire as to compliance
with the transfer restrictions with respect to any ERISA Restricted Certificate
that is a Book-Entry Certificate, and neither the Trustee nor the Master
Servicer shall have any liability for transfers of any such Book-Entry
Certificates made through the book-entry facilities of any Depository or between
or among participants of the Depository or Certificate Owners made in violation
of the transfer restrictions set forth herein. Neither the Trustee nor the
Master Servicer shall be under any liability to any Person for any registration
of transfer of any ERISA Restricted Certificate that is in fact not permitted by
this Section 6.02(b) 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. The Trustee shall be entitled, but not obligated,
to recover from any Holder of any ERISA Restricted Certificate that was in fact
a Plan or a Person, directly or indirectly, acting on behalf of any Plan at the
time it became a Holder or, at such subsequent time as it became a Plan or
Person acting on behalf of a Plan, all payments made on such ERISA Restricted
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 that is not a Plan or Person acting on behalf of a Plan.
(c) 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
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) 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.
(ii) No Ownership Interest in a Residual Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of any Residual Certificate unless, in addition to
the certificates required to be delivered to the Trustee under subparagraph
(b) above, the Trustee shall have been furnished with an affidavit (a
"TRANSFER AFFIDAVIT") of the initial owner or the proposed transferee in
the form attached hereto as Exhibit D.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not to
Transfer its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section
6.02(c) 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
6.02(c), 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 be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 6.02(b) and this
Section 6.02(c) 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. 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 Permitted
Transferee of such Certificate.
(v) The Master Servicer shall make available within 60 days of written
request from the Trustee, all information necessary to compute any tax
imposed under Section 860E(e) of the Code as a result of a Transfer of an
Ownership Interest in a Residual Certificate to any Holder who is not a
Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 6.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trustee, the Seller or the Master
Servicer to the effect that the elimination of such restrictions will not cause
the REMIC I, REMIC II and/or REMIC III, as applicable, to fail to qualify as a
REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another Person.
Each Person holding or acquiring any ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement that, based on an
Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is not
a Permitted Transferee and (b) to provide for a means to compel the Transfer of
a Residual Certificate that is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 6.02 shall not be an expense of the Trust
Fund, the Trustee, the Depositor, the Seller or the Master Servicer.
Section 6.03. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and of the ownership thereof and (b) there is delivered to
the Master Servicer and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Trustee 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 Class, tenor and Percentage Interest. In connection with the issuance of
any new Certificate under this Section 6.03, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate issued
pursuant to this Section 6.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time. All
Certificates surrendered to the Trustee under the terms of this Section 6.03
shall be canceled and destroyed by the Trustee in accordance with its standard
procedures without liability on its part.
Section 6.04. PERSONS DEEMED OWNERS.
The Trustee and any agent of the Trustee may treat the person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Trustee nor any agent of the Trustee
shall be affected by any notice to the contrary.
Section 6.05. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor or the Master Servicer shall request such information in writing from
the Trustee, then the Trustee shall, within ten Business Days after the receipt
of such request, provide the Depositor, the Master Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of the Trust Fund held by the Trustee, if any. The Depositor
and every Certificateholder, by receiving and holding a Certificate, agree that
the Trustee shall not be held accountable by reason of the disclosure of any
such information as to the list of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 6.06. BOOK-ENTRY CERTIFICATES.
The Regular Certificates (other than the Class B-IO Certificates),
upon original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to the
Depository or its agent by or on behalf of the Depositor. Such Certificates
shall initially be registered on the Certificate Register in the name of the
Depository or its nominee, and no Certificate Owner of such Certificates will
receive a definitive certificate representing such Certificate Owner's interest
in such Certificates, except as provided in Section 6.08. Unless and until
definitive, fully registered Certificates ("Definitive Certificates") have been
issued to the Certificate Owners of such Certificates pursuant to Section 6.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor and the Trustee may deal with the Depository and the
Depository Participants for all purposes (including the making of distributions)
as the authorized representative of the respective Certificate Owners of such
Certificates;
(c) registration of the Book-Entry Certificates may not be transferred
by the Trustee except to another Depository;
(d) the rights of the respective Certificate Owners of such
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of such Certificates and the Depository and/or the Depository
Participants. Pursuant to the Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 6.08, the Depository will make
book-entry transfers among the Depository Participants and receive and transmit
distributions of principal and interest on the related Certificates to such
Depository Participants;
(e) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants; and
(g) to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of,
Certificateholders evidencing a specified percentage of the aggregate unpaid
principal amount of any Class of Certificates, such direction or consent may be
given by Certificate Owners (acting through the Depository and the Depository
Participants) owning Book-Entry Certificates evidencing the requisite percentage
of principal amount of such Class of Certificates.
Section 6.07. NOTICES TO DEPOSITORY.
Whenever any notice or other communication is required to be given to
Certificateholders of a Class with respect to which Book-Entry Certificates have
been issued, unless and until Definitive Certificates shall have been issued to
the related Certificate Owners, the Trustee shall give all such notices and
communications to the Depository.
Section 6.08. DEFINITIVE CERTIFICATES.
If, after Book-Entry Certificates have been issued with respect to any
Certificates, (a) the Depositor or the Depository advises the Trustee that the
Depository is no longer willing or able to discharge properly its
responsibilities under the Depository Agreement with respect to such
Certificates and the Trustee or the Depositor is unable to locate a qualified
successor, (b) the Depositor, at its sole option, advises the Trustee that it
elects to terminate the book-entry system with respect to such Certificates
through the Depository or (c) after the occurrence and continuation of an Event
of Default, Certificate Owners of such Book-Entry Certificates having not less
than 51% of the Voting Rights evidenced by any Class of Book-Entry Certificates
advise the Trustee and the Depository in writing through the Depository
Participants that the continuation of a book-entry system with respect to
Certificates of such Class through the Depository (or its successor) is no
longer in the best interests of the Certificate Owners of such Class, then the
Trustee shall notify all Certificate Owners of such Certificates, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to applicable Certificate Owners requesting the same.
The Depositor shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon surrender to the Trustee of any such Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall countersign and deliver such Definitive Certificates. Neither
the Depositor nor the Trustee shall be liable for any delay in delivery of such
instructions and each may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of such Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of such Definitive
Certificates as Certificateholders hereunder.
Section 6.09. MAINTENANCE OF OFFICE OR AGENCY.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies where Certificates may be surrendered
for registration of transfer or exchange. The Trustee initially designates its
Corporate Trust Office, as the office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
ARTICLE VII.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER
Section 7.01. RESPECTIVE LIABILITIES OF THE DEPOSITOR, THE MASTER SERVICER
AND THE SELLER.
The Depositor, the Master Servicer and the Seller shall each be liable
in accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 7.02. MERGER OR CONSOLIDATION OF THE DEPOSITOR, THE MASTER
SERVICER OR THE SELLER.
The Depositor, the Master Servicer and the Seller will each keep in
full effect its existence, rights and franchises as a corporation under the laws
of the United States or under the laws of one of the States thereof and will
each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor, the Master Servicer or the Seller
may be merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor, the Master Servicer or the Seller shall be
a party, or any person succeeding to the business of the Depositor, the Master
Servicer or the Seller, shall be the successor of the Depositor, the Master
Servicer or the Seller, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided that the successor or
surviving Person to the Master Servicer shall be qualified to sell mortgage
loans to, and to service mortgage loans on behalf of, Xxxxxx Xxx or Xxxxxxx Mac.
Section 7.03. LIMITATION ON LIABILITY OF THE DEPOSITOR, THE SELLER, THE
MASTER SERVICER AND OTHERS.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Depositor, the Seller, the
Master Servicer or any such Person against any breach of representations or
warranties made by it herein or protect the Depositor, the Seller, the Master
Servicer or any such Person from any liability that would otherwise be imposed
by reasons of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor, the Seller, the Master Servicer and any
director, officer, employee or agent of the Depositor, the Seller or the Master
Servicer may rely in good faith on any document of any kind PRIMA FACIE properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Seller, the Master Servicer and any director, officer,
employee or agent of the Depositor, the Seller or the Master Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of the Depositor, the Seller or the Master Servicer shall be
under any obligation to appear in, prosecute or defend any legal action that is
not incidental to its respective duties hereunder and that in its opinion may
involve it in any expense or liability; provided that any of the Depositor, the
Seller or the Master Servicer may, in its discretion undertake any such action
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be, expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Seller and the Master
Servicer shall be entitled to be reimbursed therefor out of the Distribution
Account as provided in Section 3.08 hereof.
Section 7.04. LIMITATION ON RESIGNATION OF MASTER SERVICER.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon (x) determination that its duties hereunder are
no longer permissible under applicable law or (y) compliance with the following
requirements: (i) the Master Servicer has proposed a successor to the Trustee
and the Trustee has consented thereto (such consent not to be withheld
unreasonably; (ii) the successor is qualified to sell mortgage loans to, and to
service mortgage loans on behalf of, Xxxxxx Xxx or Xxxxxxx Mac; and (iii) each
Rating Agency shall have delivered to the Trustee written confirmation that the
appointment of such successor will not result in the qualification, reduction or
withdrawal of the then-current ratings assigned by such Rating Agency to any of
the Certificates. Any such determination under clause (x) permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
to such effect delivered to the Trustee. No such resignation shall become
effective until the Trustee or a successor servicer to such appointment shall
have assumed the Master Servicer's responsibilities, duties, liabilities and
obligations hereunder.
Section 7.05. ERRORS AND OMISSIONS INSURANCE; FIDELITY BONDS.
The Master Servicer shall, obtain and maintain in force (a) a policy
or policies of insurance covering errors and omissions in the performance of its
obligations as successor servicer thereunder, and (b) a fidelity bond in respect
of its officers, employees and agents. Each such policy or policies and bond
shall, together, comply with the requirements from time to time of Xxxxxx Mae or
Xxxxxxx Mac for persons performing servicing for mortgage loans purchased by
Xxxxxx Mae or Xxxxxxx Mac. In the event that any such policy or bond ceases to
be in effect, the Master Servicer shall use its reasonable best efforts to
obtain a comparable replacement policy or bond from an insurer or issuer,
meeting the requirements set forth above as of the date of such replacement.
ARTICLE VIII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 8.01. EVENTS OF DEFAULT.
"EVENT OF DEFAULT," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the Trustee any
payment, including any Advance, required to be made pursuant to this
Agreement, which failure shall continue unremedied for five Business Days
after the date on which written notice of such failure shall have been
given to the Master Servicer by the Trustee or the Depositor, or to the
Trustee and the Master Servicer by the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates; or
(ii) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Master Servicer contained in this Agreement or any breach of a
representation or warranty by the Master Servicer, which failure or breach
shall continue unremedied for a period of 60 days after the date on which
written notice of such failure shall have been given to the Master Servicer
by the Trustee or the Depositor, or to the Trustee and the Master Servicer
by the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force undischarged
or unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the
Master Servicer or all or substantially all of the property of the Master
Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations.
If an Event of Default shall occur, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the Trustee
may, and at the direction of the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates, the Trustee shall,
by notice in writing to the Master Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Master Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
its rights as a Certificateholder hereunder. On or after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer hereunder, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee, or any successor appointed pursuant
to Section 8.02 (a "Successor Master Servicer"). Such Successor Master Servicer
shall thereupon make any Advance described in Section 5.01 and payments of
Compensating Interest pursuant to Section 5.02, subject, in the case of the
Trustee, to Section 8.02. The Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the terminated Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of any Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such termination
shall affect any obligation of the Master Servicer to pay amounts owed pursuant
to Article IX. The Master Servicer agrees to cooperate with the Trustee in
effecting the termination of the Master Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to the applicable
Successor Master Servicer of all cash amounts which shall at the time be
credited to each Protected Account, or thereafter be received with respect to
the applicable Mortgage Loans. The Trustee shall promptly notify the Rating
Agencies of the occurrence of an Event of Default known to the Trustee.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of any
late collection of a Scheduled Payment on a Mortgage Loan that was due prior to
the notice terminating the Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
the Master Servicer would have been entitled pursuant to Sections 3.08 and to
receive any other amounts payable to the Master Servicer hereunder the
entitlement to which arose prior to the termination of its activities hereunder.
Section 8.02. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 8.01 hereof the Trustee shall automatically
become the successor to the Master Servicer with respect to the transactions set
forth or provided for herein and after a transition period (not to exceed 90
days), shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof and applicable law including, if applicable, the obligation to make
Advances pursuant to Section 5.01 and payments of Compensating Interest pursuant
to Section 5.02, except as otherwise provided herein. Effective on the date of
such notice of termination, as compensation therefor, the Trustee shall be
entitled to all fees, costs and expenses relating to the Mortgage Loans that the
Master Servicer would have been entitled to if it had continued to act
hereunder, provided, however, that the Trustee shall not be (i) liable for any
losses pursuant to Section 3.10 or as a result of any acts or omissions of the
Master Servicer, (ii) obligated to make Advances if it is prohibited from doing
so under applicable law, (iii) obligated to effectuate any repurchases or
substitutions of Mortgage Loans hereunder, including pursuant to Section 2.02 or
2.03 hereof, (iv) responsible for expenses of the Master Servicer pursuant to
Sections 2.03 and 3.14, or (v) deemed to have made any representations and
warranties hereunder, including pursuant to Section 2.03. Notwithstanding the
foregoing, the Trustee may, if it shall be unwilling to so act, or shall, if it
is prohibited by applicable law from making Advances pursuant to Section 5.01,
or if it is otherwise unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then current
rating of the Certificates by each Rating Agency as the successor to the Master
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Master Servicer hereunder. Any Successor Master
Servicer shall be an institution that is a Xxxxxx Mae and Xxxxxxx Mac approved
seller/servicer in good standing, that has a net worth of at least $15,000,000,
and shall have executed and delivered to the Depositor and the Trustee an
agreement accepting such delegation and assignment, that contains an assumption
by such Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Master Servicer (other than any liabilities of the Master
Servicer hereof incurred prior to termination of the Master Servicer under
Section 8.01 or as otherwise set forth herein), with like effect as if
originally named as a party to this Agreement, provided that each Rating Agency
shall have acknowledged in writing that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced as a result of such assignment and delegation. If the Trustee assumes
the duties and responsibilities of the Master Servicer in accordance with this
Section 8.02, the Trustee shall not resign as Master Servicer until a Successor
Master Servicer has been appointed and has accepted such appointment. Pending
appointment of a successor to the Master Servicer hereunder, the Trustee, unless
the Trustee is prohibited by law from so acting, shall, subject to Section 3.04
hereof, 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 or otherwise as
it and such successor shall agree; provided that no such compensation shall be
in excess of that permitted the Master Servicer hereunder. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Trustee nor any other
Successor Master Servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the Master Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
The costs and expenses of the Trustee in connection with the
termination of the Master Servicer, appointment of a Successor Master Servicer
and, if applicable, any transfer of servicing, including, without limitation,
all costs and expenses associated with the complete transfer of all servicing
data and the completion, correction or manipulation of such servicing data as
may be required by the Trustee to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Trustee or the Successor Master
Servicer to service the related Mortgage Loans properly and effectively, to the
extent not paid by the terminated Master Servicer, shall be payable to the
Trustee pursuant to Section 9.05.
Any Successor Master Servicer shall give notice to the applicable
Mortgagors of such change of servicer and shall, during the term of its service
as Successor Master Servicer maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to Section 7.05.
Section 8.03. NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
ARTICLE IX.
CONCERNING THE TRUSTEE
Section 9.01. DUTIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement as duties of the Trustee. If an Event of 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 the same degree of
care and skill in their exercise, as a prudent person would exercise under the
circumstances in the conduct of such Person's own affairs.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which are specifically
required to be furnished to the Trustee pursuant to any provision of this
Agreement, the Trustee shall examine them to determine whether they are in the
form required by this Agreement; PROVIDED, HOWEVER, that the Trustee shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Master Servicer; PROVIDED, FURTHER, that the Trustee shall not be responsible
for the accuracy or verification of any calculation provided to it pursuant to
this Agreement.
(c) On each Distribution Date, the Trustee shall make monthly
distributions and the final distribution to the Certificateholders from funds in
the Distribution Account as provided in Sections 5.04 and 10.01 herein based the
applicable Remittance Report.
(d) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; PROVIDED, HOWEVER, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred with
respect to the Trustee, the duties and obligations of the Trustee and shall
be determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of its 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 liable in its individual capacity for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the directions of the Holders of Certificates evidencing not less than
25% of the aggregate Voting Rights of the Certificates, if such action or
non-action relates to the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust
or other power conferred upon the Trustee under this Agreement;
(iv) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee shall have actual knowledge thereof. In
the absence of such notice, the Trustee may conclusively assume there is no
such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of any
insufficiency in any Account held by or in the name of Trustee unless it is
determined by a court of competent jurisdiction that the Trustee's gross
negligence or willful misconduct was the primary cause of such
insufficiency (except to the extent that the Trustee is obligor and has
defaulted thereon);
(vi) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action; and
(vii) None of the Master Servicer, the Seller, the Depositor or the
Trustee shall be responsible for the acts or omissions of the other, it
being understood that this Agreement shall not be construed to render them
partners, joint venturers or agents of one another.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Master Servicer hereunder.
(e) All funds received by the Trustee and required to be deposited in
the Distribution Account pursuant to this Agreement will be promptly so
deposited by the Trustee.
Section 9.02. CERTAIN MATTERS AFFECTING THE TRUSTEE.
(a) Except as otherwise provided in Section 9.01:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting in reliance on any resolution or certificate of the
Seller or the Master Servicer, any certificates of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel or accountants and any
advice of such counsel or accountants or any Opinion of Counsel shall be
full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under any obligation to exercise any of
the trusts or powers vested in it by this Agreement, other than its
obligation to give notices pursuant to this Agreement, or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders pursuant to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby. Nothing
contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default of which a Responsible Officer
of the Trustee has actual knowledge (which has not been cured or waived),
to exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise, as a
prudent person would exercise under the circumstances in the conduct of his
own affairs;
(iv) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have occurred
with respect to the Trustee, the Trustee shall not be liable in its
individual capacity 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) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
Holders of Certificates evidencing not less than 25% of the aggregate
Voting Rights of the Certificates and provided that 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 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 Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through Affiliates, agents
or attorneys; PROVIDED, HOWEVER, that the Trustee may not appoint any agent
to perform its custodial functions with respect to the Mortgage Files or
any paying agent to perform any paying agent functions under this Agreement
without the express written consent of the Master Servicer, which consent
will not be unreasonably withheld or delayed. The Trustee shall not be
liable or responsible for the misconduct or negligence of any of the
Trustee's agents or attorneys or a custodian or paying agent appointed
hereunder by the Trustee with due care and, when required, with the consent
of the Master Servicer;
(vii) Should the Trustee deem the nature of any action required on its
part, other than a payment or transfer under Section 3.05 to be unclear,
the Trustee may require prior to such action that it be provided by the
Depositor with reasonable further instructions; 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 accountable for other
than its negligence or willful misconduct in the performance of any such
act;
(viii) The Trustee shall not be required to give any bond or surety
with respect to the execution of the trust created hereby or the powers
granted hereunder, except as provided in Subsection 9.07; and
(ix) The Trustee shall not have any duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the
repurchase of any Mortgage Loan by any Person pursuant to this Agreement,
or the eligibility of any Mortgage Loan for purposes of this Agreement.
Section 9.03. TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS
The recitals contained herein and in the Certificates (other than the
signature and countersignature of the Trustee on the Certificates) shall be
taken as the statements of the Depositor, and the Trustee shall not have any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of the Certificates (other than the signature and
countersignature of the Trustee on the Certificates) or with respect to any
Mortgage Loan except as expressly provided in Sections 2.02 and 2.06 hereof;
provided, however, that the foregoing shall not relieve the Trustee of the
obligation to review the Mortgage Files pursuant to Sections 2.02 and 2.05. The
Trustee's signature and countersignature (or countersignature of its agent) on
the Certificates shall be solely in its capacity as Trustee and shall not
constitute the Certificates an obligation of the Trustee in any other capacity.
The Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor with respect to the
Mortgage Loans. Subject to the provisions of Section 2.06, the Trustee shall not
be responsible for the legality or validity of this Agreement or any document or
instrument relating to this Agreement, the validity of the execution of this
Agreement or of any supplement hereto or instrument of further assurance, or the
validity, priority, perfection or sufficiency of the security for the
Certificates issued hereunder or intended to be issued hereunder. The Trustee
shall not at any time have any responsibility or liability for or with respect
to the legality, validity and enforceability of any Mortgage or any Mortgage
Loan, or the perfection and priority of any Mortgage or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Trust Fund or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. The Trustee shall not have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement.
Section 9.04. TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual capacity or in any capacity other than
as Trustee hereunder may become the owner or pledgee of any Certificates with
the same rights it would have if it were not the Trustee and may otherwise deal
with the parties hereto.
Section 9.05. TRUSTEE'S FEES AND EXPENSES.
The Trustee shall be entitled to the Trustee Fee and related expenses
which shall be paid from the Distribution Account pursuant to Section 3.08(b)
hereof. In addition, the Trustee shall be indemnified and held harmless by the
Trust Fund (and accordingly will be entitled to recover from the Distribution
Account) for all liabilities, losses, costs, all reasonable out-of-pocket
expenses, disbursements and advances and the expenses of the Trustee,
respectively, in connection with the performance of its duties and obligations
and the exercise of its rights under this Agreement, the Certificates, the
Mortgage Loans, any Event of Default, any breach of this Agreement or any claim
or legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee in the administration of the trusts hereunder
(including the reasonable compensation, expenses and disbursements of its
counsel) except any such liability, loss, cost, expense, disbursement or advance
as may arise from its negligence, bad faith or intentional misconduct. If such
funds are insufficient therefor, any such insufficiency shall be recoverable
from the Depositor. Such compensation and reimbursement obligation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust.
Section 9.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee and any successor Trustee shall during the entire duration
of this Agreement be a state bank or trust company or a national banking
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus and undivided profits of at least
$50,000,000, subject to supervision or examination by federal or state authority
and rated "BBB" or higher by Standard & Poor's and "Baa2" or higher by Moody's
with respect to any outstanding long-term unsecured unsubordinated debt, and, in
the case of a successor Trustee other than pursuant to Section 9.10, rated in
one of the two highest long-term debt categories of, or otherwise acceptable to,
each of the Rating Agencies. The Trustee shall not be an Affiliate of the Master
Servicer. If the Trustee 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 9.06 the combined capital and
surplus of such corporation shall be deemed to be its total equity capital
(combined capital and surplus) as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
9.08.
Section 9.07. INSURANCE.
The Trustee at its own expense, shall at all times maintain and keep
in full force and effect: (i) fidelity insurance, (ii) theft of documents
insurance and (iii) forgery insurance (which may be collectively satisfied by a
"Financial Institution Bond" and/or a "Bankers' Blanket Bond"). All such
insurance shall be in amounts, with standard coverage and subject to
deductibles, as are customary for insurance typically maintained by banks or
their affiliates which act as custodians for investor-owned mortgage pools. A
certificate of an officer of the Trustee as to the Trustee's compliance with
this Section 9.07 shall be furnished to any Certificateholder upon reasonable
written request.
Section 9.08. RESIGNATION AND REMOVAL OF TRUSTEE.
The Trustee may at any time resign and be discharged from the Trust
hereby created by giving written notice thereof to the Depositor, the Seller and
the Master Servicer, with a copy to the Rating Agencies. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor trustee
by written instrument, in triplicate, one copy of which instrument shall be
delivered to each of the resigning trustee and the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.06 hereof and shall fail to resign
after written request thereto by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(iii)(A) a tax is imposed with respect to the Trust Fund by any state in which
the Trustee or the Trust Fund is located, (B) the imposition of such tax would
be avoided by the appointment of a different trustee and (C) the Trustee fails
to indemnify the Trust Fund against such tax, then the Depositor or the Master
Servicer may remove the Trustee and appoint a successor trustee by written
instrument, in multiple copies, a copy of which instrument shall be delivered to
the Trustee, the Master Servicer and the successor trustee.
The Holders evidencing at least 51% of the Voting Rights of each Class
of Certificates may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in multiple copies, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered by the successor trustee to each of the Master
Servicer, the Trustee so removed and the successor trustee so appointed. Notice
of any removal of the Trustee shall be given to each Rating Agency by the
Trustee or successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.08 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.09 hereof.
Section 9.09. SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 9.08 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer 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.
No successor trustee shall accept appointment as provided in this
Section 9.09 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 9.07 hereof and its appointment
shall not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.09, the successor trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates. If the successor trustee
fails to mail such notice within ten days after acceptance of appointment, the
Depositor shall cause such notice to be mailed at the expense of the Trust Fund.
Section 9.10. MERGER OR CONSOLIDATION OF TRUSTEE.
Any corporation, state bank or national banking association into which
the Trustee may be merged or converted or with which it may be consolidated or
any corporation, state bank or national banking association resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation, state bank or national banking association succeeding to
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such entity shall be eligible
under the provisions of Section 9.06 hereof without the execution or filing of
any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 9.11. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 9.11, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 9.06 and
no notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 9.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this
Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as Successor Master 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 singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
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 9.12. TAX MATTERS.
It is intended that the Trust Fund shall constitute, and that the
affairs of the Trust Fund shall be conducted so that each REMIC formed hereunder
qualifies as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of the Trust Fund. The Trustee, as
agent on behalf of the Trust Fund, shall do or refrain from doing, as
applicable, the following: (a) the Trustee shall prepare and file, or cause to
be prepared and filed, in a timely manner, U.S. Real Estate Mortgage Investment
Conduit Income Tax Returns (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared and filed
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to each
such REMIC containing such information and at the times and in the manner as may
be required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby; (b)
the Trustee shall apply for an employer identification number with the Internal
Revenue Service via a Form SS-4 or other comparable method for each REMIC that
is or becomes a taxable entity, and within thirty days of the Closing Date,
furnish or cause to be furnished to the Internal Revenue Service, on Forms 8811
or as otherwise may be required by the Code, the name, title, address, and
telephone number of the person that the holders of the Certificates may contact
for tax information relating thereto, together with such additional information
as may be required by such Form, and update such information at the time or
times in the manner required by the Code for the Trust Fund; (c) the Trustee
shall make or cause to be made elections, on behalf of each REMIC formed
hereunder to be treated as a REMIC on the federal tax return of such REMIC for
its first taxable year (and, if necessary, under applicable state law); (d) the
Trustee shall prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and to the Internal Revenue Service and, if necessary, state
tax authorities, all information returns and reports as and when required to be
provided to them in accordance with the REMIC Provisions, including without
limitation, the calculation of any original issue discount using the Prepayment
Assumption; (e) the Trustee shall provide information necessary for the
computation of tax imposed on the transfer of a Residual Certificate to a Person
that is not a Permitted Transferee, or an agent (including a broker, nominee or
other middleman) of a Person that is not a Permitted Transferee, or a
pass-through entity in which a Person that is not a Permitted Transferee is the
record holder of an interest (the reasonable cost of computing and furnishing
such information may be charged to the Person liable for such tax); (f) the
Trustee shall, to the extent under its control, conduct the affairs of the Trust
Fund at all times that any Certificates are outstanding so as to maintain the
status of each REMIC formed hereunder as a REMIC under the REMIC Provisions; (g)
the Trustee shall not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any REMIC
formed hereunder; (h) the Trustee shall pay, from the sources specified in the
last paragraph of this Section 9.12, the amount of any federal, state and local
taxes, including prohibited transaction taxes as described below, imposed on any
REMIC formed hereunder prior to the termination of the Trust Fund when and as
the same shall be due and payable (but such obligation shall not prevent the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings); (i) the Trustee shall sign or cause to be signed federal, state or
local income tax or information returns or any other document prepared by the
Trustee pursuant to this Section 9.12 requiring a signature thereon by the
Trustee; (j) the Trustee shall maintain records relating to each REMIC formed
hereunder including but not limited to the income, expenses, assets and
liabilities of each such REMIC and adjusted basis of the Trust Fund property
determined at such intervals as may be required by the Code, as may be necessary
to prepare the foregoing returns, schedules, statements or information; and (k)
as and when necessary and appropriate, the Trustee shall represent the Trust
Fund in any administrative or judicial proceedings relating to an examination or
audit by any governmental taxing authority, request an administrative adjustment
as to any taxable year of any REMIC formed hereunder, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of the Trust Fund, and otherwise act on
behalf of each REMIC formed hereunder in relation to any tax matter involving
any such REMIC.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within 10 days after the Closing Date all information or data that the Trustee
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, request in order to
enable the Trustee to perform its duties as set forth herein. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause to
be provided, accurate information or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of
any of REMIC I, REMIC II or REMIC III as defined in Section 860F(a)(2) of the
Code, on the "net income from foreclosure property" of the Trust Fund as defined
in Section 860G(c) of the Code, on any contribution to any of REMIC I, REMIC II
or REMIC III after the startup day pursuant to Section 860G(d) of the Code, or
any other tax is imposed, including, without limitation, any federal, state or
local tax or minimum tax imposed upon any of REMIC I, REMIC II or REMIC III, and
is not paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee if any such other tax arises out of or results from a breach by the
Trustee of any of its obligations under this Agreement, (ii) any party hereto
(other than the Trustee) to the extent any such other tax arises out of or
results from a breach by such other party of any of its obligations under this
Agreement or (iii) in all other cases, or in the event that any liable party
hereto fails to honor its obligations under the preceding clauses (i) or (ii),
any such tax will be paid first with amounts otherwise to be distributed to the
Class R Certificateholders and the Class B-IO Certificateholders (pro rata based
on the amounts to be distributed), and second with amounts otherwise to be
distributed to all other Certificateholders in the following order of priority:
first, to the Class B Certificates, second, to the Class M-2 Certificates,
third, to the Class M-1 Certificates, and fourth, to the Class A-1, Class A-2,
Class A-3 and Class A-IO Certificates (pro rata based on the amounts to be
distributed). Notwithstanding anything to the contrary contained herein, to the
extent that such tax is payable by the Holder of any Certificates, the Trustee
is hereby authorized to retain on any Distribution Date, from the Holders of the
Class R Certificates (and, if necessary, second, from the Holders of the other
Certificates in the priority specified in the preceding sentence), funds
otherwise distributable to such Holders in an amount sufficient to pay such tax.
The Trustee shall include in its Remittance Report instructions as to
distributions to such parties taking into account the priorities described in
the second preceding sentence. The Trustee agrees to promptly notify in writing
the party liable for any such tax of the amount thereof and the due date for the
payment thereof.
ARTICLE X.
TERMINATION
Section 10.01. TERMINATION UPON LIQUIDATION OR REPURCHASE OF ALL MORTGAGE
LOANS.
Subject to Section 10.03, the obligations and responsibilities of the
Depositor, the Master Servicer, the Seller and the Trustee created hereby with
respect to the Trust Fund shall terminate upon the earlier of (a) the purchase
by the Master Servicer of all of the Mortgage Loans (and REO Properties)
remaining in the Trust Fund at the price equal to the sum of (i) 100% of the
Stated Principal Balance of each Mortgage Loan (other than in respect of REO
Property), (ii) accrued interest thereon at the applicable Mortgage Rate, (iii)
the appraised value of any REO Property in the Trust Fund (up to the Stated
Principal Balance of the related Mortgage Loan), such appraisal to be conducted
by an appraiser mutually agreed upon by the Master Servicer and the Trustee, and
(iv) unreimbursed out-of pocket costs of the Master Servicer, including
unreimbursed servicing advances and the principal portion of any unreimbursed
Advances, made on the Mortgage Loans prior to the exercise of such repurchase
right and (v) any unreimbursed costs and expenses of the Trustee payable
pursuant to Section 9.05 and (b) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property, and (ii)
the distribution to Certificateholders of all amounts required to be distributed
to them pursuant to this Agreement, as applicable. In no event shall the trusts
created hereby continue beyond the earlier of (i) the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. Xxxxx, living on the
date hereof and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties pursuant
to clause (a) above shall be conditioned upon the Stated Principal Balance of
all of the Mortgage Loans in the Trust Fund, at the time of any such repurchase,
aggregating ten percent or less of the aggregate Cut-off Date Principal Balance
of all of the Mortgage Loans.
Section 10.02. FINAL DISTRIBUTION ON THE CERTIFICATES.
If on any Determination Date, (i) the Master Servicer determines that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Protected Accounts, the Master Servicer
shall direct the Trustee to send a final distribution notice promptly to each
Certificateholder or (ii) the Trustee determines that a Class of Certificates
shall be retired after a final distribution on such Class, the Trustee shall
notify the Certificateholders within five (5) Business Days after such
Determination Date that the final distribution in retirement of such Class of
Certificates is scheduled to be made on the immediately following Distribution
Date. Any final distribution made pursuant to the immediately preceding sentence
will be made only upon presentation and surrender of the related Certificates at
the Corporate Trust Office of the Trustee. If the Master Servicer elects to
terminate the Trust Fund pursuant to Section 10.01, on or before the
Distribution Date occurring in the month preceding the month in which notice is
to be mailed to the Certificateholders, the Master Servicer shall notify the
Depositor and the Trustee of the date the Master Servicer intends to terminate
the Trust Fund. The Master Servicer shall remit the Mortgage Loan Repurchase
Price to the Trustee on the Business Day immediately preceding the Distribution
Date on which such Optional Termination by the Master Servicer will be effected.
Provided that the Trustee has received timely notice, the Trustee
shall give notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation. To the extent reasonably
practical, such notice shall be given by letter mailed not earlier than the 1st
day and no later than the 15th day of the month of such final distribution and
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Trustee will
give such notice to each Rating Agency at the time such notice is given to
Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in each Protected Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer or its designee the Mortgage Files for
the Mortgage Loans, and any documents necessary to transfer any REO Property.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to Certificateholders of each Class the amounts
allocable to such Certificates held in the Distribution Account in the order and
priority set forth in Section 5.04 hereof on the final Distribution Date and in
proportion to their respective Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class R Certificateholders
shall be entitled to all unclaimed funds and other assets of the Trust Fund that
remain subject hereto.
Section 10.03. ADDITIONAL TERMINATION REQUIREMENTS.
(a) Upon exercise by the Master Servicer of its purchase option as
provided in Section 10.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied with
an Opinion of Counsel, at the expense of the Master Servicer, to the effect that
the failure of the Trust Fund to comply with the requirements of this Section
10.03 will not (i) result in the imposition of taxes on "prohibited
transactions" of a REMIC, or (ii) cause a REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
(1) The Master Servicer shall establish a 90-day liquidation period
and notify the Trustee thereof, and the Trustee shall in turn specify the first
day of such period in a statement attached to each of REMIC I, REMIC II and
REMIC III's Tax Return pursuant to Treasury Regulation Section 1.860F-1. The
Master Servicer shall satisfy all the requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder, as evidenced by
an Opinion of Counsel obtained at the expense of the Master Servicer;
(2) During such 90-day liquidation period, and at or prior to the time
of making the final payment on the Certificates, the Master Servicer as agent of
the Trustee shall sell all of the assets of REMIC I, REMIC II and REMIC III for
cash; and
(3) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be distributed
or credited, to the Holders of the Residual Certificates all cash on hand (other
than cash retained to meet claims), and REMIC I, REMIC II and REMIC III shall
terminate at that time.
(b) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Master Servicer to specify the 90-day liquidation period
for REMIC I, REMIC II and REMIC III, which authorization shall be binding upon
all successor Certificateholders.
(c) The Trustee as agent for each REMIC hereby agrees to adopt and
sign such a plan of complete liquidation upon the written request of the Master
Servicer, and the receipt of the Opinion of Counsel referred to in Section
10.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Master Servicer.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.01. AMENDMENT.
This Agreement may be amended from time to time by parties hereto,
without the consent of any of the Certificateholders to cure any ambiguity, to
correct or supplement any provisions herein (including to give effect to the
expectations of investors), to change the manner in which the Protected Account
is maintained or to make such other provisions with respect to matters or
questions arising under this Agreement as shall not be inconsistent with any
other provisions herein if such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder; provided that any such amendment shall be deemed not to
adversely affect in any material respect the interests of the Certificateholders
and no such Opinion of Counsel shall be required if the Person requesting such
amendment obtains a letter from each Rating Agency stating that such amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the parties hereto may at any time and from time to time
amend this Agreement to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or appropriate to maintain the qualification
of each of REMIC I, REMIC II and REMIC III as a REMIC under the Code or to avoid
or minimize the risk of the imposition of any tax on any of REMIC I, REMIC II or
REMIC III pursuant to the Code that would be a claim against any of REMIC I,
REMIC II or REMIC III at any time prior to the final redemption of the
Certificates, provided that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such amendment but in
any case shall not be an expense of the Trustee, to the effect that such action
is necessary or appropriate to maintain such qualification or to avoid or
minimize the risk of the imposition of such a tax.
This Agreement may also be amended from time to time by the parties
hereto and the Holders of each Class of Certificates affected thereby evidencing
over 50% of the Voting Rights of such Class or Classes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii) cause
any of REMIC I, REMIC II or REMIC III's REMIC elections to fail to qualify or
(iii) reduce the aforesaid percentages of Certificates of each Class the Holders
of which are required to consent to any such amendment without the consent of
the Holders of all Certificates of such Class then outstanding.
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, which opinion shall be an expense of the party
requesting such amendment but in any case shall not be an expense of the
Trustee, to the effect that such amendment will not (other than an amendment
pursuant to clause (ii) of, and in accordance with, the preceding paragraph)
cause the imposition of any tax on REMIC I, REMIC II or REMIC III or the
Certificateholders or cause REMIC I, REMIC II or REMIC III's REMIC elections to
fail to qualify at any time that any Certificates are outstanding. Further,
nothing in this Agreement shall require the Trustee to enter into an amendment
without receiving an Opinion of Counsel, satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement (including any consent of the
applicable Certificateholders) have been complied with.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
It shall not be necessary for the consent of Certificateholders 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. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 11.02. RECORDATION OF AGREEMENT; COUNTERPARTS.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all of the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere. The Master Servicer shall effect such recordation at the
Trust's expense upon the request in writing of a Certificateholder, but only if
such direction is accompanied by an Opinion of Counsel (provided at the expense
of the Certificateholder requesting recordation) to the effect that such
recordation would materially and beneficially affect the interests of the
Certificateholders or is required by law.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
Section 11.04. INTENTION OF PARTIES.
It is the express intent of the parties hereto that the conveyance of
the Mortgage Notes, Mortgages, assignments of Mortgages, title insurance
policies and any modifications, extensions and/or assumption agreements and
private mortgage insurance policies relating to the Mortgage Loans by the Seller
to the Depositor, and by the Depositor to the Trustee be, and be construed as,
an absolute sale thereof to the Depositor or the Trustee, as applicable. It is,
further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Seller to the Depositor, or by the Depositor to the
Trustee. However, in the event that, notwithstanding the intent of the parties,
such assets are held to be the property of the Seller or the Depositor, as
applicable, or if for any other reason this Agreement is held or deemed to
create a security interest in such assets, then (i) this Agreement shall be
deemed to be a security agreement within the meaning of the Uniform Commercial
Code of the State of New York and (ii) each conveyance provided for in this
Agreement shall be deemed to be an assignment and a grant by the Seller or the
Depositor, as applicable, for the benefit of the Certificateholders, of a
security interest in all of the assets that constitute the Trust Fund, whether
now owned or hereafter acquired.
The Depositor for the benefit of the Certificateholders shall, to the
extent consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
assets of the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement.
Section 11.05. NOTICES.
(a) The Trustee shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of the Master Servicer or the
Trustee and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.02, 2.03, 3.20 and 10.01; and
(v) The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
(i) Each report to Certificateholders described in Section 5.05;
(vi) Each annual statement as to compliance described in Section 3.17;
and
(vii) Each annual independent public accountants' servicing report
described in Section 3.18.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered at or mailed by
registered mail, return receipt requested, postage prepaid, or by recognized
overnight courier, or by facsimile transmission to a number provided by the
appropriate party if receipt of such transmission is confirmed to (i) in the
case of the Depositor, Bear Xxxxxxx Asset Backed Securities, Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Counsel; (ii) in the case of
the Seller or the Master Servicer, EMC Mortgage Corporation, 000 Xxxxxx Xxxxx
Xxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxxxx Xxxxx, or such other address as
may be hereafter furnished to the other parties hereto by EMC in writing; (iv)
in the case of the Trustee, at its Corporate Trust Office or such other address
as the Trustee may hereafter furnish to the other parties hereto; and (v) in the
case of the Rating Agencies, (x) Xxxxx'x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Home Equity Monitoring, and (y)
Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Mortgage Surveillance Group. Any notice delivered to the Seller, the
Master Servicer or the Trustee under this Agreement shall be effective only upon
receipt. Any notice required or permitted to be mailed to a Certificateholder,
unless otherwise provided herein, shall be given by first-class mail, postage
prepaid, at the address of such Certificateholder as shown in the Certificate
Register; any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 11.06. SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07. ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Section 7.02, this Agreement may not be assigned by the
Master Servicer, the Seller or the Depositor.
Section 11.08. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
Fund, or otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as hereinbefore provided,
the Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 11.08, each and every Certificateholder or the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.09. INSPECTION AND AUDIT RIGHTS.
(a) The Master Servicer agrees that, on reasonable prior notice, it
will permit any representative of the Depositor or the Trustee during the Master
Servicer's normal business hours, to examine all the books of account, records,
reports and other papers of the Master Servicer relating to the Mortgage Loans,
to make copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Master Servicer hereby authorizes such accountants to
discuss with such representative such affairs, finances and accounts), all at
such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense incident to the exercise by the Depositor or the Trustee
of any right under this Section 11.09 shall be borne by the party requesting
such inspection; all other such expenses shall be borne by the Master Servicer.
(b) The Trustee shall provide access to the records and documentation
in its possession regarding the Mortgage Loans and any REO Properties and the
servicing thereof to the Certificateholders, the FDIC, and the supervisory
agents and examiners of the FDIC, such access being afforded only upon
reasonable prior written request and during normal business hours at its office;
provided, however, that, unless otherwise required by law, the Trustee shall not
be required to provide access to such records and documentation if the provision
thereof would violate the legal right to privacy of any Mortgagor. The Trustee
shall allow representatives of the above entities to photocopy any of the
records and documentation and shall provide equipment for that purpose at a
charge that covers its actual costs.
Section 11.10. CERTIFICATES NONASSESSABLE AND FULLY PAID.
It is the intention of the Depositor that Certificateholders shall not
be personally liable for obligations of the Trust Fund, that the interests in
the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
* * *
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Seller and
the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.,
as Depositor
By: /s/ XXXXXX X. XXXXXXXXX, XX.
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
EMC MORTGAGE CORPORATION,
as Seller and Master Servicer
By: /s/ XX XXXXX
---------------------------------
Name: Xx Xxxxx
Title: Senior Managing Director
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of November, 2001, before me, a notary public in and
for said State, appeared Xxxxxx X. Xxxxxxxxx, Xx., personally known to me on the
basis of satisfactory evidence to be an authorized representative of Bear
Xxxxxxx Asset Backed Securities, Inc., one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such corporation and acknowledged to me that such corporation executed
the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ XXXXX X. XXXXXXXXXX
-------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of November, 2001, before me, a notary public in and
for said State, appeared Xxxxxx Xxxxxxxx, personally known to me on the basis of
satisfactory evidence to be an authorized representative of LaSalle Bank
National Association that executed the within instrument, and also known to me
to be the person who executed it on behalf of such corporation, and acknowledged
to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ XXXXX X. XXXXXXXXXX
-------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of November, 2001, before me, a notary public in and
for said State, appeared Xx Xxxxx, personally known to me on the basis of
satisfactory evidence to be an authorized representative of EMC Mortgage
Corporation, one of the corporations that executed the within instrument, and
also known to me to be the person who executed it on behalf of such corporation
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ XXXXX X. XXXXXXXXXX
-------------------------
Notary Public
[Notarial Seal]
Exhibit A-1
FORM OF CLASS A-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: A-1-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance of
this Certificate
("Denomination"): $75,000,000
Initial Certificate
Principal Balance of
Class A-1
Certificates: $75,000,000
Latest Possible
Maturity Date: October 27, 2032
CUSIP: 07384Y BL9
Interest Rate: For each Distribution Date, the
lesser of (i) One-Month LIBOR plus, for
any Distribution Date (a) on or prior to
the Optional Termination Date, 0.45% and
(b) thereafter, 0.90%, and (ii) the
applicable Interest Rate Cap.
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor most of the Trust Assets are guaranteed or insured
by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities, Inc. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement") among the Depositor, EMC Mortgage Corporation as seller and master
servicer (in its capacity as seller, the "Seller" and in its capacity as master
servicer, the "Master Servicer") and LaSalle Bank National Association, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or such other location specified in the
notice to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
--------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
-------------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
_______________________________________________________________________________.
Dated:
----------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
_______________________________________________________________________________
for the account of____________________________________________________________,
_______________________________________________________________________________
account number _______________, or, if mailed by check, to_____________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ___________________________________, as its agent.
Exhibit A-2
FORM OF CLASS A-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: A-2-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance of
this Certificate
("Denomination"): $77,831,000
Initial Certificate
Principal Balance of
Class A-2
Certificates: $77,831,000
Latest Possible
Maturity Date: October 27, 2032
CUSIP: 07384Y BM7
Interest Rate: For each Distribution Date, the
lesser of (i) One-Month LIBOR plus, for
any Distribution Date (a) on or prior to
the Optional Termination Date, 0.40% and
(b) thereafter, 0.80%, and (ii) the
applicable Interest Rate Cap.
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor most of the Trust Assets are guaranteed or insured
by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities, Inc. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement") among the Depositor, EMC Mortgage Corporation as seller and master
servicer (in its capacity as seller, the "Seller" and in its capacity as master
servicer, the "Master Servicer") and LaSalle Bank National Association, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or such other location specified in the
notice to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
----------------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
_______________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
for the account of____________________________________________________________,
account number _______________, or, if mailed by check, to_____________________
________________________________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by_________________________________________,
the assignee named above, or ___________________________________, as its agent.
Exhibit A-3
FORM OF CLASS A-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: A-3-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance of
this Certificate
("Denomination"): $10,000,000
Initial Certificate
Principal Balance of
Class A-3
Certificates: $10,000,000
Latest Possible
Maturity Date: October 27, 2032
CUSIP: 07384Y BN5
Interest Rate: For each Distribution Date, the
lesser of (i) One-Month LIBOR plus, for
any Distribution Date (a) on or prior to
the Optional Termination Date, 0.65% and
(b) thereafter, 1.30%, and (ii) the
applicable Interest Rate Cap.
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor most of the Trust Assets are guaranteed or insured
by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities, Inc. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement") among the Depositor, EMC Mortgage Corporation as seller and master
servicer (in its capacity as seller, the "Seller" and in its capacity as master
servicer, the "Master Servicer") and LaSalle Bank National Association, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or such other location specified in the
notice to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
---------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________.
Dated:
____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
vailable funds to
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________, or, if mailed by check, to ____________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ___________________________________, as its agent.
Exhibit A-4
FORM OF CLASS A-IO CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO DISTRIBUTIONS
IN RESPECT OF PRINCIPAL.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: A-IO-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance (Notional) of
this Certificate
("Denomination"): $18,193,000
Initial Certificate
Principal Balance
(Notional) of Class
A-IO Certificates: $18,193,000
Latest Possible
Maturity Date: May 25, 2004
CUSIP: 07384Y BP0
Interest Rate: For each Distribution Date, the lesser
of 8.00% per annum and the applicable
Interest Rate Cap.
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor most of the Trust Assets are guaranteed or insured
by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities, Inc. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement") among the Depositor, EMC Mortgage Corporation as seller and master
servicer (in its capacity as seller, the "Seller" and in its capacity as master
servicer, the "Master Servicer") and LaSalle Bank National Association, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or such other location specified in the
notice to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
--------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
---------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________
for the account of____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ___________________________________, as its agent.
Exhibit A-5
FORM OF CLASS M-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: M-1-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance of
this Certificate
("Denomination"): $10,461,000
Initial Certificate
Principal Balance of
Class M-1
Certificates: $10,461,000
Latest Possible
Maturity Date: October 27, 2032
CUSIP: 07384Y BQ8
Interest Rate: For each Distribution Date, the
lesser of (i) One-Month LIBOR plus, for
any Distribution Date (a) on or prior to
the Optional Termination Date, 1.00% per
annum and (b) thereafter, 1.50% per
annum, and (ii) the applicable Interest
Rate Cap.
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor most of the Trust Assets are guaranteed or insured
by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities, Inc. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement") among the Depositor, EMC Mortgage Corporation as seller and master
servicer (in its capacity as seller, the "Seller" and in its capacity as master
servicer, the "Master Servicer") and LaSalle Bank National Association, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or such other location specified in the
notice to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
---------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
_____________________________________________________________________________ .
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
_____________________________________________________________________________
for the account of __________________________________________________________,
account number _______________, or, if mailed by check, to ___________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by _____________________________________,
the assignee named above, or ___________________________________, as its agent.
Exhibit A-6
FORM OF CLASS M-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: M-2-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance of
this Certificate
("Denomination"): $5,913,000
Initial Certificate
Principal Balance of
Class M-2
Certificates: $5,913,000
Latest Possible
Maturity Date: October 27, 2032
CUSIP: 07384Y BR6
Interest Rate: For each Distribution Date, the
lesser of (i) One-Month LIBOR plus for
any Distribution Date (a) on or prior to
the Optional Termination Date, 1.50% per
annum and (b) thereafter, 2.25% per
annum, and (ii) the applicable Interest
Rate Cap.
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor most of the Trust Assets are guaranteed or insured
by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities, Inc. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement") among the Depositor, EMC Mortgage Corporation as seller and master
servicer (in its capacity as seller, the "Seller" and in its capacity as master
servicer, the "Master Servicer") and LaSalle Bank National Association, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or such other location specified in the
notice to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
--------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
--------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________
for the account of____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ___________________________________, as its agent.
Exhibit A-7
FORM OF CLASS B CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: B-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance of
this Certificate
("Denomination"): $2,729,000
Initial Certificate
Principal Balance of
Class B-1
Certificates: $2,729,000
Latest Possible
Maturity Date: October 27, 2032
CUSIP: 07384Y BS4
Interest Rate: For each Distribution Date, the
lesser of (i) One-Month LIBOR plus for
any Distribution Date (a) on or prior to
the Optional Termination Date, 2.50% per
annum and (b) thereafter, 3.75% per annum
and, (ii) the applicable Interest Rate
Cap.
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor most of the Trust Assets are guaranteed or insured
by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities, Inc. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement") among the Depositor, EMC Mortgage Corporation as seller and master
servicer (in its capacity as seller, the "Seller" and in its capacity as master
servicer, the "Master Servicer") and LaSalle Bank National Association, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or such other location specified in the
notice to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
-----------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________, or, if mailed by check, to ____________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by ______________________________________,
the assignee named above, or ___________________________________, as its agent.
Exhibit A-8
FORM OF CLASS B-IO CERTIFICATE
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO DISTRIBUTIONS
IN RESPECT OF PRINCIPAL.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: B-IO-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal Balance (Notional)
of this Certificate ("Denomination"): $181,934,777
Initial Certificate Principal
Balance (Notional) of Class B-IO
Certificates: $181,934,777
Latest Possible
Maturity Date: October 27, 2032
CUSIP: N/A
Interest Rate: N/A
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Master Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor most of the Trust Assets are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered
owner of the Percentage Interest evidenced by this Certificate in certain
monthly distributions with respect to a Trust Fund consisting of the Trust
Assets (obtained by dividing the denomination of this Certificate by the
aggregate denominations of all Certificates of the same Class) deposited by Bear
Xxxxxxx Asset Backed Securities, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of November 1,
2001 (the "Agreement") among the Depositor, EMC Mortgage Corporation as seller
and master servicer (in its capacity as seller, the "Seller" and in its capacity
as master servicer, the "Master Servicer") and LaSalle Bank National
Association, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate has only a notional principal balance and does not
bear interest at a specified rate. It is entitled on each Distribution Date to
its Percentage Interest of distributions of any remaining Excess Cashflow after
all other classes of Certificates (other than the Residual Certificates) have
received amounts to which they are entitled.
No Transfer of this Certificate shall be made unless such Transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under the Securities Act and such state securities laws. In the
event that a Transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such Transfer and
such Certificateholder's prospective transferee shall each certify to the
Trustee and the Master Servicer in writing the facts surrounding the Transfer in
substantially the forms set forth in the Agreement, as Exhibit E (the
"Transferor Certificate") and (x) deliver a letter in substantially the form of
either Exhibit F (the "Investment Letter") of the Agreement or Exhibit G (the
"Rule 144A Letter") of the Agreement or (y) there shall be delivered to the
Trustee an opinion of counsel that such Transfer may be made pursuant to an
exemption from the Securities Act, which opinion of counsel shall not be an
expense of the Depositor, the Seller, the Master Servicer or the Trustee. The
Depositor shall provide to any Holder of this Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificate and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for Transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A.
Each Holder of this Certificate desiring to effect such Transfer shall, and does
hereby agree to, indemnify the Trustee, the Depositor, the Seller and the Master
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.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
--------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
---------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________, or, if mailed by check, to ____________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by _____________________________________,
the assignee named above, or ___________________________________, as its agent.
FORM OF CLASS R-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: R-1-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance of
this Certificate
("Denomination"): $50
Initial Certificate
Principal Balance of
Class R-1
Certificates: $50
Latest Possible
Maturity Date: October 27, 2032
CUSIP: 07384Y BT2
Interest Rate: N/A
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Master Servicer, or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor most of the Trust Assets are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered
owner of the Percentage Interest evidenced by this Certificate in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by Bear Xxxxxxx Asset Backed Securities, Inc. (the "Depositor").
The Trust Fund was created pursuant to a Pooling and Servicing Agreement dated
as of November 1, 2001 (the "Agreement") among the Depositor, EMC Mortgage
Corporation as seller and master servicer (in its capacity as seller, the
"Seller" and in its capacity as master servicer, the "Master Servicer") and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentation and surrender of this Class R-1
Certificate at the Corporate Trust Office.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions of Section 6.02 of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Certificate may be transferred without delivery to
the Trustee of a Transfer Affidavit of the proposed transferee in the form
described in the Agreement, (iii) each person holding or acquiring an Ownership
Interest in this Certificate must agree not to transfer an Ownership Interest in
this Certificate if it has actual knowledge that the proposed transferee is not
a Permitted Transferee and (iv) 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.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
----------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________, or, if mailed by check, to ____________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by _____________________________________,
the assignee named above, or ___________________________________, as its agent.
Exhibit A-10
FORM OF CLASS R-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: R-2-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance of
this Certificate
("Denomination"): $50
Initial Certificate
Principal Balance of
Class R-2
Certificates: $50
Latest Possible
Maturity Date: October 27, 2032
CUSIP: 07384Y BU9
Interest Rate: N/A
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Master Servicer, or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor most of the Trust Assets are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered
owner of the Percentage Interest evidenced by this Certificate in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by Bear Xxxxxxx Asset Backed Securities, Inc. (the "Depositor").
The Trust Fund was created pursuant to a Pooling and Servicing Agreement dated
as of November 1, 2001 (the "Agreement") among the Depositor, EMC Mortgage
Corporation as seller and master servicer (in its capacity as seller, the
"Seller" and in its capacity as master servicer, the "Master Servicer") and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentation and surrender of this Class R-1
Certificate at the Corporate Trust Office.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions of Section 6.02 of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Certificate may be transferred without delivery to
the Trustee of a Transfer Affidavit of the proposed transferee in the form
described in the Agreement, (iii) each person holding or acquiring an Ownership
Interest in this Certificate must agree not to transfer an Ownership Interest in
this Certificate if it has actual knowledge that the proposed transferee is not
a Permitted Transferee and (iv) 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.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
-------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
------------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________, or, if mailed by check, to ____________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by _____________________________________,
the assignee named above, or ___________________________________, as its agent.
FORM OF CLASS R-3 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE MASTER SERVICER A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN") OR A TRUSTEE OF SUCH PLAN OR
ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON BEHALF OF ANY PLAN, OR A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE AND THE MASTER SERVICER BY THE TRANSFEREE OF A BOOK-ENTRY
CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR IN THE
AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE VOID AND
OF NO EFFECT.
Certificate No.: R-3-
Cut-off Date: November 1, 2001
First Distribution Date: December 26, 2001
Initial Principal
Balance of
this Certificate
("Denomination"): $50
Initial Certificate
Principal Balance of
Class R-3
Certificates: $50
Latest Possible
Maturity Date: October 27, 2032
CUSIP: 07384Y BV7
Interest Rate: N/A
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional, fixed- and adjustable-rate mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties (the "Trust Assets").
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Master Servicer, or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor most of the Trust Assets are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered
owner of the Percentage Interest evidenced by this Certificate in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by Bear Xxxxxxx Asset Backed Securities, Inc. (the "Depositor").
The Trust Fund was created pursuant to a Pooling and Servicing Agreement dated
as of November 1, 2001 (the "Agreement") among the Depositor, EMC Mortgage
Corporation as seller and master servicer (in its capacity as seller, the
"Seller" and in its capacity as master servicer, the "Master Servicer") and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentation and surrender of this Class R-1
Certificate at the Corporate Trust Office.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions of Section 6.02 of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Certificate may be transferred without delivery to
the Trustee of a Transfer Affidavit of the proposed transferee in the form
described in the Agreement, (iii) each person holding or acquiring an Ownership
Interest in this Certificate must agree not to transfer an Ownership Interest in
this Certificate if it has actual knowledge that the proposed transferee is not
a Permitted Transferee and (iv) 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.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2001
LaSalle Bank National
Association not in its
individual capacity, but
solely as Trustee
By:
-----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
LaSalle Bank National Association
not in its individual
capacity, but solely
as Trustee
By:
------------------------------
Authorized Signatory
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-3
ASSET-BACKED CERTIFICATES, SERIES 2001-3
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities Trust 2001-3, Asset-Backed Certificates,
Series 2001-3, issued in multiple Classes (the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Seller and the Trustee with the consent of
the Holders of each Class or Classes of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class or Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor, the Master Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee, or any such agent shall be
affected by any notice to the contrary.
Subject to Section 10.03 of the Agreement, the obligations and responsibilities
of the Depositor, the Master Servicer, the Seller and the Trustee created under
the Agreement with respect to the Trust Fund shall terminate upon the earlier of
(a) the purchase by the Master Servicer of all of the Mortgage Loans and REO
Properties remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Mortgage Loan (other than in respect of
REO Property), (ii) accrued interest thereon at the applicable Mortgage Rate,
(iii) the appraised value of any REO Property in the Trust Fund (up to the
Stated Principal Balance of the related Mortgage Loan), such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee and (iv) any unreimbursed Servicing Advances and the principal portion
of any unreimbursed Advances made on the Mortgage Loans and any out-of-pocket
costs of the Master Servicer, and including any unreimbursed out-of-pocket costs
and expenses of the Trustee, in each case incurred prior to the exercise of such
purchase right and (b) the later of (i) the maturity or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. Xxxxx, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties described in
clause (a) above shall be conditioned upon the Stated Principal Balances of the
Mortgage Loans, at the time of any such repurchase, aggregating ten percent or
less of the aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________
for the account of ___________________________________________________________,
account number _______________, or, if mailed by check, to ____________________
________________________________________________________________. Applicable
statements should be mailed to _______________________________________________.
This information is provided by _____________________________________,
the assignee named above, or ___________________________________, as its agent.
Exhibit B
Mortgage Loan Schedule
(see schedule on file with the Trustee)
EXHIBIT C-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of November 1, 2001
among Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor,
EMC Mortgage Corporation, as Seller and Master Servicer, and
LaSalle Bank National ASSOCIATION AS TRUSTEE; ASSET-BACKED
CERTIFICATES, SERIES 2001-3
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed in the attached list of exceptions) it has reviewed
the related Mortgage File and has determined that, except as noted on the
attached exception report, the Mortgage File contains an original Mortgage Note
or a lost note affidavit as provided in Section 2.01 of the Pooling and
Servicing Agreement.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
LaSalle Bank National Association,
as Trustee
By:
-----------------------------------
Name:
Title:
EXCEPTION REPORT TO INITIAL CERTIFICATION OF TRUSTEE
EXHIBIT C-2
FORM OF INTERIM CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of November 1, 2001
among Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor,
EMC Mortgage Corporation, as Seller and Master Servicer, and
LaSalle Bank National ASSOCIATION, AS TRUSTEE; ASSET-BACKED
CERTIFICATES, SERIES 2001-3
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that, except
as otherwise noted on the attached exception report, that as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or listed on the attachment hereto) it has reviewed the related Mortgage
File and the Mortgage Loan Schedule and has determined that: (i) all documents
required to be included in the Mortgage File pursuant to Section 2.01 of the
Pooling and Servicing Agreement are in its possession; (ii) such documents have
been reviewed by it and appear regular on their face, have, where applicable,
been executed and relate to such Mortgage Loan; and (iii) based on examination
by it, and only as to such documents, the information set forth in the Mortgage
Loan Schedule as to Mortgagor Name, original principal balance and loan number
respecting such Mortgage Loan is correct and accurately reflects the information
in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representation that any documents specified in clauses (iv) and (vi) of Section
2.01 should be included in any Mortgage File. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
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.
LaSalle Bank National Association,
as Trustee
By:
---------------------------
Name:
Title:
EXCEPTION REPORT TO INTERIM CERTIFICATION OF TRUSTEE
EXHIBIT C-3
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
Re: Pooling and Servicing Agreement dated as of November 1, 2001
among Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor,
EMC Mortgage Corporation, as Seller and Master Servicer, and
LaSalle Bank National ASSOCIATION, AS TRUSTEE; ASSET-BACKED
CERTIFICATES, SERIES 2001-3
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that, except
as otherwise noted on the attached exception report, that as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or listed on the attachment hereto) each document required to be recorded
has been returned from the recording office with evidence of recording thereon
and it has received either an original or a copy of such document, as required
pursuant to Section 2.01, PROVIDED, HOWEVER, that with respect to those
documents described in clauses (iv) and (vi) of Section 2.01, only those
documents actually delivered to us pursuant to such clauses.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representation that any documents specified in clauses (iv) and (vi) of Section
2.01 should be included in any Mortgage File. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
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.
LaSalle Bank National Association,
as Trustee
By:
--------------------------------------
Name:
Title:
EXCEPTION REPORT TO FINAL CERTIFICATION OF TRUSTEE
EXHIBIT D
TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________, the proposed
Transferee of an Ownership Interest in a [Class R-1] [Class R-2] [Class R-3]
Certificate (the "Class R Certificate") issued pursuant to the Pooling and
Servicing Agreement, dated as of November 1, 2001 (the "Agreement"), by and
among Bear Xxxxxxx Asset Backed Securities, Inc., as depositor (the
"Depositor"), EMC Mortgage Corporation, as seller and master servicer (in its
capacity as seller, the "Seller" and its capacity as the master servicer, the
"Master Servicer"), and LaSalle Bank National Association, as trustee (the
"Trustee"). Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Class R Certificate either (i) for its own account or
(ii) as nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Class R Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Class R Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Class R Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 6.02(c) of the Agreement and the
restrictions noted on the face of the Class R Certificate. The Transferee
understands and agrees that any breach of any of the representations included
herein shall render the Transfer to the Transferee contemplated hereby null and
void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Class R Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit E to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the Class R
Certificate.
8. The Transferee's taxpayer identification number is _____.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(3O).
10. The Transferee is aware that the Class R Certificate may be
"noneconomic residual interests" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax. In addition, as the
holder of a noneconomic residual interest, the Transferee may incur tax
liabilities in excess of any cash flows generated by the interest and the
Transferee hereby represents that it intends to pay taxes associated with
holding the residual interest as they become due.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ____ day of _____________, 20__.
[NAME OF TRANSFEREE]
By:
-----------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
---------------------------
[Assistant Secretary]
Personally appeared before me the above-named _____________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________ of the Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of _______, 20__.
______________________________
----------------------------------------
NOTARY PUBLIC
My Commission expires the ___ day of
______________, 20__.
EXHIBIT 1 TO EXHIBIT D
CERTAIN DEFINITIONS
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to the
Class [R-1] [R-2] [R-3] Certificate, (iv) rural electric and telephone
cooperatives described in section 1381(a)(2)(C) of the Code, (v) a Person that
is not a citizen or resident of the United States, a corporation, partnership,
or other entity (treated as a corporation or a partnership for federal income
tax purposes) created or organized in or under the laws of the United States,
any state thereof or the District of Columbia (other than a partnership that has
any direct or indirect foreign partners), or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have authority to control all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI, and (vi) any other Person so designated by the Trustee based upon an
Opinion of Counsel that states the Transfer of an Ownership Interest in a Class
[R-1] [R-2] [R-3] Certificate to such Person may cause the Trust Fund to fail to
qualify as a REMIC at any time that certain Certificates are Outstanding. The
terms "United States," "State" and "International Organization" shall have the
meanings set forth in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Residual Certificate": Any of the Class R-1, Class R-2 or Class R-3
Certificates.
EXHIBIT 2 TO EXHIBIT D
SECTION 6.02(C) OF THE AGREEMENT
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate (which for purposes of this Section includes an interest in
a Class R-1, Class R-2 or Class R-3 Certificate or in each such Class as a
result of holding an Ownership Interest in a Class R Certificate) shall be
deemed by the acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions, and the rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(i) 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.
(ii) No Ownership Interest in a Residual Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of a Residual Certificate unless, in addition to the
certificates required to be delivered to the Trustee under subparagraph (b)
above, the Trustee shall have been furnished with an affidavit (a "TRANSFER
AFFIDAVIT") of the initial owner or the proposed transferee in the form
attached hereto as Exhibit D.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not to
Transfer its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section
6.02(c) 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
6.02(c), 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 be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 6.02(b) and this
Section 6.02(c) 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, Transferor Certificate and
either the Rule 144A Letter or the Investment Letter. 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 Permitted
Transferee of such Certificate.
(v) The Master Servicer shall make available within 60 days of written
request from the Trustee, all information necessary to compute any tax
imposed under Section 860E(e) of the Code as a result of a Transfer of an
Ownership Interest in a Residual Certificate to any Holder who is not a
Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 6.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trustee, the Seller or the Master
Servicer to the effect that the elimination of such restrictions will not cause
REMIC I, REMIC II and/or REMIC III, as applicable to fail to qualify as a REMIC
at any time that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement that, based on an Opinion of Counsel
furnished to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Residual Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate that is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE FOR
CLASS B-IO, CLASS R-1, CLASS R-2 AND CLASS R-3 CERTIFICATES
Date:
Bear Xxxxxxx Asset Backed Securities, Inc.,
as Depositor
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
LaSalle Bank National Association,
as Trustee
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Ref: Bear Xxxxxxx, ABS 2001-3
Re: Bear Xxxxxxx Asset Backed Securities, Inc. Asset-Backed
Certificates, Series 2001-3
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class [B-IO] [R-1] [R-2]
[R-3] Certificates, we certify that (a) we understand that the Certificates have
not been registered under the Securities Act of 1933, as amended (the "Act"),
and are being disposed by us in a transaction that is exempt from the
registration requirements of the Act, (b) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, in a
manner that would be deemed, or taken any other action that would result in, a
violation of Section 5 of the Act and (c) if we are disposing of a Class [B-IO]
[R-1] [R-2] [R-3] Certificate, we have no knowledge the Transferee is not a
Permitted Transferee. All capitalized terms used herein but not defined herein
shall have the meanings assigned to them in the Pooling and Servicing Agreement
dated as of November 1, 2001, among Bear Xxxxxxx Asset Backed Securities, Inc.,
as Depositor, EMC Mortgage Corporation, as Seller and Master Servicer, and
LaSalle Bank National Association, as Trustee.
Very truly yours,
-------------------------------------
Name of Transferor
By:
----------------------------------
Name:
Title:
EXHIBIT F
FORM OF INVESTMENT LETTER (NON-RULE 144A) FOR
CLASS B-IO, CLASS R-1, CLASS R-2 AND CLASS R-3 CERTIFICATES
Date:________________
Bear Xxxxxxx Asset Backed Securities, Inc.,
as Depositor
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association,
as Trustee
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Ref: Bear Xxxxxxx, ABS 2001-3
Re: Bear Xxxxxxx Asset Backed Securities, Inc. Asset-Backed
Certificates, Series 2001-3
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the Class [B-IO] [R-1] [R-2]
[R-3] Certificates in the Denomination of $_____________ (the "Certificates"),
we certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, nor
a plan subject to Section 4975 of the Internal Revenue Code of 1986 (each of the
foregoing, a "PLAN"), nor are we acting on behalf of any Plan or we have
provided to the Trustee an Opinion of Counsel satisfactory to the Trustee and
the Master Servicer to the effect that the purchase or holding of such ERISA
Restricted Certificate will not result in any prohibited transactions under
ERISA or Section 4975 of the Code and will not subject the Trustee or the Master
Servicer to any obligation in addition to those expressly undertaken in the
Pooling and Servicing Agreement referred to below, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of the Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action that
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of the Certificate has executed and delivered to you a certificate to
substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement"), among Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor,
EMC Mortgage Corporation, as Seller and Master Servicer, and LaSalle Bank
National Association, as Trustee. All capitalized terms used herein but not
defined herein shall have the meanings assigned to them in the Agreement.
Very truly yours,
--------------------------------------
Name of Transferee
By:
----------------------------------
Name:
Title:
EXHIBIT G
FORM OF RULE 144A LETTER FOR
CLASS B-IO, CLASS R-1, CLASS R-2 AND CLASS R-3 CERTIFICATES
Date:______________
Bear Xxxxxxx Asset Backed Securities, Inc.,
as Depositor
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association,
as Trustee
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Ref: Bear Xxxxxxx, ABS 2001-3
Re: Bear Xxxxxxx Asset Backed Securities, Inc. Asset-Backed
Certificates, Series 2001-3
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of the Class [B-IO] [R-1]
[R-2] [R-3] Certificates (the "Certificates") we certify that (a) we understand
that the Certificates are not being registered under the Securities Act of 1933,
as amended (the "Act"), or any state securities laws and are being transferred
to us in a transaction that is exempt from the registration requirements of the
Act and any such laws, (b) we have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits and risks of
investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase of
the Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are not an
employee benefit plan that is subject to the Employee Retirement Income Security
Act of 1974, as amended, nor a plan subject to Section 4975 of the Internal
Revenue Code of 1986 (each of the foregoing, a "PLAN"), nor are we acting on
behalf of any Plan or we have provided to the Trustee an Opinion of Counsel
satisfactory to the Trustee and the Master Servicer to the effect that the
purchase or holding of such ERISA Restricted Certificate will not result in any
prohibited transactions under ERISA or Section 4975 of the Code and will not
subject the Trustee or the Master Servicer to any obligation in addition to
those expressly undertaken in the Pooling and Servicing Agreement referred to
below, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, and (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2. We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that the Certificates 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 Securities Act. All capitalized terms used
herein but not defined herein shall have the meanings assigned to them in the
Pooling and Servicing Agreement dated as of November 1, 2001, among Bear Xxxxxxx
Asset Backed Securities, Inc., as Depositor, EMC Mortgage Corporation, as Seller
and Master Servicer, and LaSalle Bank National Association, as Trustee.
--------------------------------------
Name of Buyer
By:
-----------------------------------
Name:
Title:
ANNEX 1 TO EXHIBIT G
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1 As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2 In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("RULE 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $__________1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
___ BANK. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the
State or territorial banking commission or similar official
or is a foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, A COPY OF WHICH
IS ATTACHED HERETO.
___ SAVINGS AND LOAN. The Buyer (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ BROKER-DEALER. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency
of a State, territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA PLAN. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ INVESTMENT ADVISOR. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ SMALL BUSINESS INVESTMENT COMPANY. The Buyer is a small
business investment company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ BUSINESS DEVELOPMENT COMPANY. The Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
___ TRUST FUND. The Buyer is a trust fund whose trustee is a
bank or trust company and whose participants are exclusively
State or Local Plans or ERISA Plans as defined above, and no
participant of the Buyer is an individual retirement account
or an H.R. 10 (Xxxxx) plan.
--------
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
3 The term "SECURITIES" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4 For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5 The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6 Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
----------------------------------------
Name of Buyer
By:
-------------------------------------
Name:
Title:
Date:
----------------------------------
ANNEX 2 TO EXHIBIT G
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "BUYER") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1 As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("RULE 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2 In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $____________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $__________ in securities (other than
the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3 The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4 The term "SECURITIES" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii) bank deposit notes and certificates of deposit,
(iii) loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5 The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6 Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
---------------------------------------
Name of Buyer or Adviser
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------------
Name of Buyer
EXHIBIT H
REQUEST FOR RELEASE OF DOCUMENTS
To: LaSalle Bank National Association,
as Trustee
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Ref: Inventory Control
Re: Pooling and Servicing Agreement (the "Agreement"), dated as
of November 1, 2001, among Bear Xxxxxxx Asset Backed
Securities, Inc., as Depositor, EMC Mortgage Corporation, as
Seller and Master Servicer, and Lasalle Bank National
Association, as trustee (The "Trustee")
-----------------------------------------------------------
In connection with the administration of the Mortgage Loans held by
you as Trustee for the Trust Fund pursuant to the above-captioned Agreement, we
request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated. [In connection with
a substitution of a Mortgage Loan, we hereby certify to you that the mortgage
loan to be substituted therefor meets all requirements of the Agreement with
respect to a Replacement Mortgage Loan.]
MORTGAGE LOAN NUMBER:
MORTGAGOR NAME, ADDRESS & ZIP CODE:
REASON FOR REQUESTING DOCUMENTS (CHECK ONE):
____ 1. Mortgage Paid in Full (and all amounts received or to be
received in connection with such payment have been or will be remitted to the
Master Servicer for deposit in the Certificate Account)
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation (Repurchases, etc.)
____ 5. Nonliquidation Reason:________________________________
Address to which Trustee should
Deliver the Mortgage File
_______________________________
_______________________________
_______________________________
By:
---------------------------
(authorized signer)
Issuer:
------------------------
Address:
------------------------
--------------------------------
Date:
------------------------
Trustee
LaSalle Bank National Association
Please acknowledge the execution of the above request by your signature and date
below:
------------------------------ -------------
Signature Date
Documents returned to Trustee
----------------------------- ------------
Trustee Date
Exhibit I
DTC LETTER OF REPRESENTATIONS
(Available upon request, on file with the Trustee)
Exhibit J
SCHEDULE OF MORTGAGE LOANS WITH LOST NOTES
(Available upon request, on file with the Trustee)
