Execution Copy
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BEAR XXXXXXX ASSET BACKED SECURITIES, INC.,
Depositor
EMC MORTGAGE CORPORATION,
Seller and Master Servicer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2000
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ASSET-BACKED CERTIFICATES, SERIES 2000-2
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Table of Contents
Page
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ARTICLE I.
DEFINITIONS
Section 1.01. Defined Terms...............................................................................1
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans...............................................................30
Section 2.02. Acceptance by Trustee of the Mortgage Loans................................................31
Section 2.03. Representations, Warranties and Covenants of the Master Servicer and the Seller............33
Section 2.04. Representations and Warranties of the Depositor............................................43
Section 2.05. Delivery of Opinion of Counsel in Connection with Substitutions and Repurchases............44
Section 2.06. Authentication and Delivery of Certificates................................................45
Section 2.07. Covenants of the Master Servicer...........................................................45
ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans..................................................46
Section 3.02. Subservicing; Enforcement of the Obligations of Master Servicer............................47
Section 3.03. Rights of the Depositor, the Trustee in Respect of the Master Servicer.....................47
Section 3.04. Trustee to Act as Master Servicer..........................................................47
Section 3.05. Collection of Mortgage Loan Payments; Certificate Account; Distribution Account............48
Section 3.06. Collection of Taxes, Assessments and Similar Items; Escrow Accounts........................51
Section 3.07. Access to Certain Documentation and Information Regarding the Mortgage Loans...............51
Section 3.08. Permitted Withdrawals from the Certificate Account and the Distribution Account............51
Section 3.09. [Reserved.]................................................................................53
Section 3.10. Maintenance of Hazard Insurance............................................................53
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements..................................54
Section 3.12. Realization Upon Defaulted Mortgage Loans; Determination of Excess Proceeds and
Realized Losses; Repurchase of Certain Mortgage Loans...................................55
Section 3.13. Trustee to Cooperate; Release of Mortgage Files............................................58
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Section 3.14. Documents, Records and Funds in Possession of Master Servicer to be Held for the
Trustee.................................................................................59
Section 3.15. Servicing Compensation.....................................................................59
Section 3.16. Access to Certain Documentation............................................................60
Section 3.17. Annual Statement as to Compliance..........................................................60
Section 3.18. Annual Independent Public Accountants' Servicing Statement; Financial Statements...........60
ARTICLE IV.
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances...................................................................................61
Section 4.02. Reduction of Servicing Compensation in Connection with Prepayment Interest
Shortfalls..............................................................................61
Section 4.03. REMIC Distributions........................................................................62
Section 4.04. Distributions..............................................................................62
Section 4.04A. Allocation of Realized Losses..............................................................65
Section 4.05. Monthly Statements to Certificateholders...................................................65
Section 4.06. REMIC Designations and Allocations.........................................................68
ARTICLE V.
THE CERTIFICATES
Section 5.01. The Certificates...........................................................................74
Section 5.02. Certificate Register; Registration of Transfer and Exchange of Certificates................75
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates..........................................78
Section 5.04. Persons Deemed Owners......................................................................79
Section 5.05. Access to List of Certificateholders' Names and Addresses..................................79
Section 5.06. Book-Entry Certificates....................................................................79
Section 5.07. Notices to Depository......................................................................80
Section 5.08. Definitive Certificates....................................................................80
Section 5.09. Maintenance of Office or Agency............................................................81
ARTICLE VI.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER
Section 6.01. Respective Liabilities of the Depositor, the Master Servicer and the Seller................82
Section 6.02. Merger or Consolidation of the Depositor, the Master Servicer or the Seller................82
Section 6.03. Limitation on Liability of the Depositor, the Seller, the Master Servicer and
others..................................................................................82
Section 6.04. Limitation on Resignation of Master Servicer...............................................83
Section 6.05. Errors and Omissions Insurance; Fidelity Bonds.............................................83
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ARTICLE VII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 7.01. Events of Default..........................................................................84
Section 7.02. Trustee to Act; Appointment of Successor...................................................85
Section 7.03. Notification to Certificateholders.........................................................86
ARTICLE VIII.
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee..........................................................................87
Section 8.02. Certain Matters Affecting the Trustee......................................................88
Section 8.03. Trustee Not Liable for Mortgage Loans......................................................89
Section 8.04. Trustee May Own Certificates...............................................................90
Section 8.05. Trustee's Fees and Expenses................................................................90
Section 8.06. Eligibility Requirements for Trustee.......................................................90
Section 8.07. Resignation and Removal of Trustee.........................................................91
Section 8.08. Successor Trustee..........................................................................91
Section 8.09. Merger or Consolidation of Trustee.........................................................92
Section 8.10. Appointment of Co-Trustee or Separate Trustee..............................................92
Section 8.11. Tax Matters................................................................................93
Section 8.12. Periodic Filings...........................................................................95
ARTICLE IX.
TERMINATION
Section 9.01. Termination upon Liquidation or Repurchase of all Mortgage Loans...........................97
Section 9.02. Final Distribution on the Certificates.....................................................97
Section 9.03. Additional Termination Requirements........................................................98
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.................................................................................100
Section 10.02. Recordation of Agreement; Counterparts....................................................101
Section 10.03. Governing Law.............................................................................101
Section 10.04. Intention of Parties......................................................................101
Section 10.05. Notices...................................................................................102
Section 10.06. Severability of Provisions................................................................103
Section 10.07. Assignment................................................................................103
Section 10.08. Limitation on Rights of Certificateholders................................................103
Section 10.09. Inspection and Audit Rights...............................................................104
Section 10.10. Certificates Nonassessable and Fully Paid.................................................104
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Exhibits
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Exhibit A-1 Form of Class AF-1 Certificates
Exhibit A-2 Form of Class AF-2 Certificates
Exhibit A-3 Form of Class AF-3 Certificates
Exhibit A-4 Form of Class AF-4 Certificates
Exhibit A-5 Form of Class A-IO Certificates
Exhibit A-6 Form of Class AV-1 Certificates
Exhibit A-7 Form of Class M-1 Certificates
Exhibit A-8 Form of Class M-2 Certificates
Exhibit A-9 Form of Class B Certificates
Exhibit A-10 Form of Class B-IO Certificates
Exhibit A-11 Form of Class XP Certificates
Exhibit A-12 Form of Class R Certificate
Exhibit A-13 Form of Class R-1 Certificate
Exhibit A-14 Form of Class R-2 Certificate
Exhibit A-15 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
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POOLING AND SERVICING AGREEMENT, dated as of November 1, 2000, 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 master servicer (in such capacity, the
"Master Servicer"), and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
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 elect that the Trust Fund be treated for Federal income tax purposes as
three separate real estate mortgage investment conduits (each a "REMIC").
The Trust Fund shall be named, and may be referred to as, the "Bear
Xxxxxxx Asset Backed Securities, Inc. Asset-Backed Certificates 2000-2"
(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 defined 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:
Accrual Period: With respect to the Certificates which bear a fixed
rate of interest and any Distribution Date, the calendar month immediately
preceding such Distribution Date. With respect to the Certificates which bear an
adjustable rate of interest and any Distribution Date, the period commencing on
the immediately preceding Distribution Date (or, in the case of the first
Distribution Date, the Closing Date) and ending on the day immediately preceding
such Distribution Date. All calculations of interest on the Certificates which
bear a fixed rate of interest will be made on the basis of a 360-day year
consisting of twelve 30-day months, and all calculations of interest on the
Certificates which bear an adjustable rate of interest will be made on the basis
of the actual number of days elapsed in the related Accrual Period and in a
360-day year.
Adjustable Rate Mortgage Loans: The group of Mortgage Loans identified
in the related Mortgage Loan Schedule as having a Mortgage Rate which is
adjustable from time to time, including any Mortgage Loans delivered in
replacement thereof.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, each date on
which the related Mortgage Rate is subject to adjustment, as provided in the
related Mortgage Note.
Advance: The aggregate of the advances required to be made by the
Master Servicer with respect to any Distribution Date pursuant to Section 4.01,
the amount of any such advances being equal to the aggregate of payments of
interest and (other than with respect to Simple Interest Loans) principal (net
of the Servicing Fees) on the Mortgage Loans that were due during the related
Due Period and not received as of the close of business on the related
Determination Date less the aggregate amount of any such delinquent payments
that the Master Servicer has determined would constitute a Nonrecoverable
Advance were an advance to be made with respect thereto. For purposes of this
definition, an REO Property shall continue to be a Mortgage Loan with an
amortization schedule and periodic adjustments to the Mortgage Rate thereon, if
applicable, in accordance with the Mortgage Note until it becomes a Liquidated
Loan.
Aggregate Groups I and II Net Rate Cap: For any Distribution Date,
(I) (A) (1) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Loan Group I and Loan Group II multiplied by (2) the excess of
the aggregate Stated Principal Balance of the Mortgage Loans in Loan
Group I and Loan Group II as of the last day of the related Due Period
over the Certificate Notional Balance of the Class A-IO Certificates,
plus
(B) (1) the excess of the weighted average of the Net Mortgage Rates of
the
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Mortgage Loans in Loan Group I and Loan Group II over the Pass-Through
Rate of the Class A-IO Certificates, multiplied by (2) the Certificate
Notional Balance of the Class A-IO Certificates; divided by
(II) the Stated Principal Balance of the Mortgage Loans in Loan Group I and
Loan Group II as of the last day of the related Due Period.
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 the Certificate 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 A-IO, Class B-IO and Residual
Certificates) the sum of the Realized Losses with respect to the Mortgage Loans
or the Mortgage Loans in a particular Loan Group, as applicable, 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 with respect to the Class B Certificates, Class M-2 Certificates and
Class M-1 Certificates in that order so long as their respective Certificate
Principal Balances have not been reduced to zero, 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 the
aggregate Stated Principal Balance of all of the Mortgage Loans as of the last
day of the related Due Period and, with respect to the Class A-I Group, the
Class A-II Group or the Class A-III Group, the amount, if any, by which (i) the
aggregate Certificate Principal Balance of all of the Certificates in the
respective Class A Group (after all distributions of principal on such
Distribution Date) exceeds the aggregate Stated Principal Balance of all of the
Mortgage Loans is Loan Group I, Loan Group II or Loan Group III, respectively,
as of the last day of the related Due Period, provided that any Applied Realized
Loss Amount allocable to the Class A-II Group shall be allocated among the Class
AF-2, Class AF-3 and Class AF-4 Certificates pro rata based upon their
respective Certificate Principal Balances (after all distributions of principal
on such Distribution Date).
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.
Balance Ratio: The meaning provided in Section 4.06(c).
Bankruptcy Code: Title 11 of the United States Code.
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Book-Entry Certificates: Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of which
is reflected on the books of the Depository or on the books of a person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.06). As of the Closing
Date, each Class of Regular Certificates (other than the Class B-IO and Class XP
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 City of New York, New York or the city
in which the Corporate Trust Office of the Trustee is located are authorized or
obligated by law or executive order to be closed.
Certificate: Any 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-15.
Certificate Account: The separate Eligible Account created and
initially maintained by the Master Servicer pursuant to Section 3.05(b) with a
depository institution in the name of the Master Servicer for the benefit of the
Trustee on behalf of the Certificateholders and designated "EMC Mortgage
Corporation in trust for registered holders of Bear Xxxxxxx Asset Backed
Securities, Inc., Asset-Backed Certificates, Series 2000-2." Funds in the
Certificate Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
Certificate Notional Balance: As to any Class A-IO Certificate and (a)
any Distribution Date until, but not including the Distribution Date in May,
2003, the lesser of $23,908,000 and the aggregate Stated Principal Balance of
the Mortgage Loans in both Loan Group I and Loan Group II as of the last day of
the related Due Period and (b) thereafter, zero.
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, Class B-IO or Residual 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 4.04, 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 or a Class A Group shall mean the
Certificate Principal Balances of all Certificates in such Class or all
Certificates in such Class A Group, as the case may be.
Certificate Register: The register maintained pursuant to Section 5.02
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 5.01 hereof.
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Class A Group: Any of the Class A-I Group, Class A-II Group and Class
A-III Group.
Class A Principal Distribution Amount: With respect to any Distribution
Date, the excess of (A) the aggregate Certificate Principal Balance of all of
the Senior Certificates immediately prior to such Distribution Date over (B) the
lesser of (I) 51.20% of the Stated Principal Balances of the Mortgage Loans as
of the last day of the related Due Period and (II) the Stated Principal Balances
of the Mortgage Loans as of the last day of the related Due Period less the OC
Floor.
Class AF-1 Certificate: Any Certificate designated as a "Class AF-1
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to the Percentage Interest of distributions provided for
the Class AF-1 Certificates as set forth herein.
Class AF-1 Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, the lesser of (i) 7.47% per annum and (ii) the
Class AF-1 Rate Cap for such Distribution Date, and on any Distribution Date
after such Optional Termination Date, the lesser of (i) 7.97% per annum and (ii)
the Class AF-1 Rate Cap for such Distribution Date.
Class AF-1 Rate Cap: With respect to any Accrual Period for the Class
AF-1 Certificates through the applicable Accrual Period for such Class relating
to the Distribution Date in May, 2003, the Aggregate Groups I and II Net Rate
Cap and thereafter, the Group I Net Rate Cap.
Class AF-2 Certificate: Any Certificate designated as a "Class AF-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 AF-2 Certificates as set forth herein.
Class AF-2 Margin: As of any Distribution Date, 0.15% per annum.
Class AF-2 Pass-Through Rate: For the first Distribution Date, 6.76625%
per annum. As of any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR plus the Class AF-2 Margin and (ii) the Class AF-2 Rate Cap for such
Distribution Date.
Class AF-2 Rate Cap: With respect to any Accrual Period for the Class
AF-2 Certificates through the applicable Accrual Period for such Class relating
to the Distribution Date in May, 2003, the Aggregate Groups I and II Net Rate
Cap and thereafter, the Group II Net Rate Cap.
Class AF-3 Certificate: Any Certificate designated as a "Class AF-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 AF-3 Certificates as set forth herein.
Class AF-3 Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, 7.34% per annum, and on any Distribution Date
after such Optional Termination Date, 7.84% per annum.
Class AF-4 Certificate: Any Certificate designated as a "Class AF-4
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 AF-4 Certificates as set forth herein.
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Class AF-4 Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, 7.81% per annum, and on any Distribution Date
after such Optional Termination Date, 8.31% per annum.
Class A-I Group: The Class A-1 Certificates.
Class A-II Group: The Class A-2 Certificates, Class A-3 Certificates
and Class A-4 Certificates.
Class A-III Group: The Class AV-1 Certificates.
Class A-IO Certificate: Any Certificate designated as a "Class A-IO
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 A-IO Certificates as set forth herein.
Class A-IO Net Rate Cap: For any Distribution Date, the weighted
average of the Net Mortgage Rates of the Mortgage Loans in both Loan Group I and
Loan Group II.
Class A-IO Pass-Through Rate: On any Distribution Date, the lesser of
(i) 8.00% per annum and (ii) the Class A-IO Net Rate Cap for such Distribution
Date.
Class AV-1 Certificate: Any Certificate designated as a "Class AV-1
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 AV-1 Certificates as set forth herein.
Class AV-1 Margin: As of any Distribution Date on or prior to the
Optional Termination Date, 0.25% per annum and, as of any Distribution Date
after such Optional Termination Date, 0.50% per annum.
Class AV-1 Pass-Through Rate: For the first Distribution Date, 6.86625%
per annum. As of any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR plus the applicable Class AV-1 Margin and (ii) the Class AV-1 Rate Cap for
such Distribution Date.
Class AV-1 Rate Cap: For any Distribution Date, the percentage obtained
by multiplying (a) the Group III Net Rate Cap by (b) a fraction the numerator of
which is 30 and the denominator of which is the actual number of days elapsed
during the related Accrual Period.
Class B Certificate: Any Certificate designated as a "Class B
Certificate" on the face thereof, in the form of Exhibit A-9 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class B Certificates as set forth herein.
Class B Pass-Through Rate: On any Distribution Date on or prior to the
Optional Termination Date, the lesser of (i) 9.00% per annum and (ii) the
Subordinated Certificates Rate Cap for such Distribution Date and, on any
Distribution Date after the Optional Termination Date, the lesser of (i) 9.50%
per annum and (ii) the Subordinated Certificates Rate Cap for such Distribution
Date.
Class B Principal Distribution Amount: With respect to any Distribution
Date, the excess of (i) the sum of (A) the aggregate Certificate Principal
Balance of all of the Senior
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Certificates (after taking into account distribution of the Class A Principal
Distribution Amount on such Distribution Date), (B) the Certificate Principal
Balance of the Class M-1 Certificates (after taking into account distribution of
the Class M-1 Principal Distribution Amount on such Distribution Date), (C) the
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), and (D) the Certificate Principal Balance of the Class B
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(A) 88.00% of the aggregate Stated Principal Balance of all of the Mortgage
Loans as of the last day of the related Due Period and (B) the aggregate Stated
Principal Balance of all of the Mortgage Loans as of the last day of the related
Due Period less the OC Floor; provided, however, that after the Certificate
Principal Balances of the Senior Certificates, the Class M-1 Certificates and
the Class M-2 Certificates have been reduced to zero, the Class B Principal
Distribution Amount for such Distribution Date will equal 100% of the Principal
Distribution Amount for such Distribution Date.
Class B-IO Certificate: Any Certificate designated as a "Class B-IO
Certificate" on the face thereof, in the form of Exhibit A-10 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,
the sum of (a) the amount allocable to the Class B-IO Certificates as provided
in Section 4.06(c), note 4, for such Distribution Date and all prior
Distribution Dates, and (b) $13,450,587.37 (representing the Initial
Overcollateralization Amount), less (c) the aggregate of all amounts distributed
with respect to the Class B-IO Certificates on prior Distribution Dates.
Class M-1 Certificate: Any Certificate designated as a "Class M-1
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 M-1 Certificates as set forth herein.
Class M-1 Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, the lesser of (i) 8.04% per annum and (ii) the
Subordinated Certificates Rate Cap for such Distribution Date and, on any
Distribution Date after such Optional Termination Date, the lesser of (i) 8.54%
per annum and (ii) the Subordinated Certificates Rate Cap for such Distribution
Date.
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Certificate
Principal Balance of all of the Senior Certificates (after taking into account
distributions of the Class A Principal Distribution Amount for such Distribution
Date) and (B) the Certificate Principal Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 65.20%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period and (B) the aggregate Stated Principal Balance of
all of the Mortgage Loans as of the last day of the related Due Period less the
OC Floor.
Class M-2 Certificate: Any Certificate designated as a "Class M-2
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 M-2 Certificates as set forth herein.
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Class M-2 Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, the lesser of (i) 8.28% per annum and (ii) the
Subordinated Certificates Rate Cap and, on any Distribution Date after such
Optional Termination Date, the lesser of (i) 8.78% per annum and (ii) the
Subordinated Certificates Rate Cap.
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Certificate
Principal Balance of all the Senior Certificates (after taking into account
distributions of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account distributions of the Class M-1 Principal Distribution
Amount for such Distribution Date) and (C) the Certificate Principal Balance of
the Class M-2 Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 77.20% of the aggregate Stated Principal Balance of all of the
Mortgage Loans as of the last day of the related Due Period and (B) the
aggregate Stated Principal Balance of all of the Mortgage Loans as of the last
day of the related Due Period less the OC Floor.
Class R Certificate: Any Certificate designated a "Class R Certificate"
on the face thereof, in substantially the form set forth in Exhibit A-12 hereto,
and evidencing ownership of the Class R-1, Class R-2 and Class R-3 Certificates.
The holder of a Class R Certificate can, on request, cause the Trust to issue in
its place separate Class R-1, Class R-2 and Class R-3 Certificates.
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-13 hereto, and evidencing ownership of the residual interest in REMIC I and
representing the right to the Percentage Interest of 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-14 hereto, and evidencing ownership of the residual interest in REMIC II and
representing the right to the Percentage Interest of 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-15 hereto, and evidencing ownership of the residual interest in REMIC III and
representing the right to the Percentage Interest of distributions provided for
the Class R-3 Certificate as set forth herein.
Class XP Certificate: Any Certificate designated as a "Class XP
Certificate" on the face thereof, in the form of Exhibit A-11 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class XP Certificates as set forth herein.
Closing Date: November 30, 2000.
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
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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 monthly Servicing Fee, to be applied to the interest portion of a
Prepayment Interest Shortfall on such Mortgage Loan pursuant to Section 4.02
hereof.
Corporate Trust Office: The designated office of the Trustee where at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located, for Certificate transfer purposes, at the Xxxxx Fargo
Center, Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000. Attention: Bear
Xxxxxxx, ABS 2000-2, and for all other purposes at 00000 Xxxxxx Xxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Bear Xxxxxxx Asset Backed Securities,
Inc. Series 2000-2, or at such other address as the Trustee may designate from
time to time.
Cumulative Loss Event: A Cumulative Loss Event shall have occurred and
be continuing if, for any Distribution Date set forth below, Cumulative Net
Losses exceed the applicable percentage of the aggregate Certificate Principal
Balances of the Offered Certificates as of the Closing Date:
Distribution Dates Percentages
------------------ -----------
37th - 48th.............. 3.50%
49th - 60th.............. 4.50%
61st - 72nd.............. 5.00%
73rd and thereafter........ 5.50%
Cumulative Net Losses: As of any date of determination, the sum of the
amounts by which the Stated Principal Balance of each Mortgage Loan that became
a Liquidated Loan from the Cut-off Date through the end of the calendar month
preceding such date of determination exceeds any Liquidation Proceeds with
respect thereto.
Current Interest: As of any Distribution Date, with respect to
Certificates of each Class other than the Class XP, Class B-IO and Residual
Certificates, 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.
Cut-off Date: November 1, 2000.
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,
in the case of Mortgage Loans other than the Simple Interest Loans, scheduled
payments of principal due on or before the Cut-off Date, whether
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or not received (and in the case of Simple Interest Loans, scheduled payments of
principal due on or before the Cut-off Date only if received), 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 5.06.
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) 45% 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
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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(c) in the name of the Trustee
for the benefit of the Certificateholders and designated "Xxxxx Fargo Bank
Minnesota, National Association, in trust for registered holders of Bear Xxxxxxx
Asset Backed Securities, Inc., Asset-Backed Certificates, Series 2000-2". 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, on or
before 1:00 p.m. Central time on 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 2000.
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 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
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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.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificate: Each of the Class M-1, Class M-2, Class
B, Class B-IO, Class XP and Residual Certificates.
Event of Default: As defined in Section 7.01 hereof.
Excess Cashflow: With respect to any Distribution Date, an amount equal
to the sum of (a) the Excess Overcollaterization Amount and (b) the Remaining
Excess Spread, in each case for such Distribution Date.
Excess Overcollaterazation Amount: With respect to any Distribution
Date, the excess, if any, of the Overcollaterazation Amount for such
Distribution Date over the Specified Overcollaterazation Amount for such
Distribution Date.
Excess Proceeds: With respect to any Liquidated Loan, any Liquidation
Proceeds that are in excess of the sum of (i) the unpaid principal balance of
such Liquidated Loan as of the date of such liquidation plus (ii) interest at
the Net Mortgage Rate from the Due Date as to which interest was last paid or
advanced to Certificateholders (and not reimbursed to the Master Servicer) up to
the first day of the month in which such Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Loan outstanding
during each Due Period as to which such interest was not paid or advanced.
Expense Fee Rate: 0.515% per annum.
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.
Excess Spread: With respect to any Distribution Date, the excess, if
any, of (i) the Net Interest Funds for such Distribution Date over (ii) required
distributions of interest on the Offered Certificates on such Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Xxxxxxx Mac: Federal Home Loan Mortgage Corporation, or any successor
thereto.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
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Fixed Rate Mortgage Loans: The group of Mortgage Loans identified in
the related Mortgage Loan Schedule as having a Mortgage Rate which is fixed for
the life of the related Mortgage, including any Mortgage Loans delivered in
replacement thereof.
Xxxxxx Xxx: Xxxxxx Xxx (formerly, Federal National Mortgage
Association), or any successor thereto.
Gross Margin: The percentage set forth in the related Mortgage Note for
the Adjustable Rate Mortgage Loans to be added to the Index for use in
determining the Mortgage Rate on each Adjustment Date, and which is set forth in
the Mortgage Loan Schedule for the Adjustable Rate Mortgage Loans.
Group I Net Rate Cap: For any Distribution Date, the weighted average
of the Net Mortgage Rates of the Mortgage Loans in Loan Group I.
Group II Net Rate Cap: For any Distribution Date, the weighted average
of the Net Mortgage Rates of the Mortgage Loans in Loan Group II.
Group III Net Rate Cap: For any Distribution Date, the weighted average
of the Net Mortgage Rates of the Mortgage Loans in Loan Group III.
Index: As to any Adjustable Rate Mortgage Loan on any Adjustment Date
related thereto, the index for the adjustment of the Mortgage Rate set forth as
such in the related Mortgage Note. The Master Servicer hereby agrees that should
the Index become unavailable, the Master Servicer, on behalf of the Trustee,
will select a new index that is based upon comparable information.
Initial Adjustment Date: As to any Adjustable Rate Mortgage Loan, the
first Adjustment Date following the origination of such Mortgage Loan.
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: The excess of the aggregate
Stated Principal Balances of the Mortgage Loans as of the Cut-off Date over the
Certificate Principal Balances of the Certificates as of the Closing Date.
Initial Mortgage Rate: As to each Mortgage Loan, the Mortgage Rate in
effect prior to the Initial Adjustment Date.
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 Insurance Policies.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Insurance Policy or any other insurance policy covering a
Mortgage Loan, 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
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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 Carryforward Amount: As of any Distribution Date and with
respect to each Class of Certificates other than the Class B-IO, Class XP and
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 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 Certificates which
bear an adjustable rate of interest for the first Accrual Period, November 28,
2000. With respect to the Certificates which bear an adjustable rate of interest
and any Accrual Period thereafter, the second LIBOR Business Day preceding the
commencement of such Accrual Period.
Interest Funds: With respect to each Loan Group, the sum, without
duplication, of (i) all scheduled interest (and in the case of Simple Interest
Loans, 30 days of interest) collected during the related Due Period with respect
to the related Mortgage Loans less the related Servicing Fee, (ii) all Advances
relating to interest with respect to the related Mortgage Loans, (iii) all
Compensating Interest with respect to the related Mortgage Loans and (iv)
Liquidation Proceeds with respect to the related Mortgage Loans collected during
the related Prepayment Period (to the extent such Liquidation Proceeds relate to
interest), less all amounts relating to interest reimbursed with respect to the
related Due Period pursuant to Section 3.08(a).
Latest Possible Maturity Date: The Distribution Date 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 3.12) in the related Prepayment Period that it has received all amounts
it expects to receive in connection with such liquidation.
Liquidation Proceeds: Amounts, including 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 amounts
received in connection with any condemnation or
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partial release of a Mortgaged Property and any other proceeds received in
connection with an REO Property, less the sum of related unreimbursed Advances,
Servicing Fees and Servicing Advances.
Loan Group: Any of Loan Group I, Loan Group II or Loan Group III.
Loan Group I: The Mortgage Loans included as such on the Mortgage Loan
Schedule, all of which are Fixed Rate Mortgage Loans.
Loan Group II: The Mortgage Loans included as such on the Mortgage Loan
Schedule, all of which are Fixed Rate Mortgage Loans.
Loan Group III: The Mortgage Loans included as such on the Mortgage
Loan Schedule, all of which are Adjustable Rate Mortgage Loans.
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 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 Servicer: EMC Mortgage Corporation, a Delaware corporation, and
its successors and assigns, in its capacity as master servicer hereunder.
Maximum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, the maximum rate of interest set forth as such in the related Mortgage
Note.
Minimum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, the minimum rate of interest set forth as such in the related Mortgage
Note.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.05.
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 Loan Repurchase Price: The price, calculated as set forth in
Section 9.01, to be paid in connection with the repurchase of the Mortgage Loans
pursuant to Section 9.01.
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
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Trustee as part of the Trust Fund and from time to time subject to this
Agreement, the initial Mortgage Loan Schedule being attached hereto as Exhibit
B, setting forth the following information with respect to each Mortgage Loan
and divided into Loan Groups:
(i) the loan number;
(ii) [Reserved];
(iii) the Appraised Value;
(iv) the Initial Mortgage Rate;
(v) the maturity date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the first payment date of the Mortgage Loan;
(ix) the Scheduled Payment in effect as of the Cut-off
Date;
(x) the Loan-to-Value Ratio or Combined Loan-to-Value
Ratio, as applicable, at origination;
(xi) a code indicating whether the residential dwelling at
the time of origination was represented to be
owner-occupied;
(xii) a code indicating whether the residential dwelling is
either (a) a detached single family dwelling (b) a
condominium unit or (c) a two- to four-unit
residential property;
(xiii) with respect to each Adjustable Rate Mortgage Loan;
(a) the frequency of each Adjustment Date;
(b) the next Adjustment Date;
(c) the Maximum Mortgage Rate;
(d) the Minimum Mortgage Rate;
(e) the Mortgage Rate as of the Cut-off Date;
(f) the related Periodic Rate Cap;
(g) the Gross Margin; and
(h) the purpose of the Mortgage Loan.
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Such schedule shall also set forth the total of the amounts described under
(vii) above for all of the Mortgage Loans.
Mortgage Loans: Such of the Fixed Rate Mortgage Loans and Adjustable
Rate 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 Note: The original executed note or other evidence of
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time.
Mortgaged Property: The underlying property securing a Mortgage Loan.
Mortgagor: The obligors on a Mortgage Note.
Net Interest Funds: As to any Distribution Date and a Loan Group, the
Interest Funds for such Loan Group minus the Trustee Fee calculated on the basis
of the Mortgage Loans in such Loan Group and other amounts reimbursable to the
Trustee pursuant to Section 3.08(b).
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less the sum of the Servicing Fee Rate and
the Trustee Fee Rate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Nonrecoverable Advance: Any portion of a Servicing Advance or 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 the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
OC Floor: 0.50% of the Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
Offered Certificates: The Class AF-1 Certificates, Class AF-2
Certificates, Class AF-3 Certificates, Class AF-4 Certificates, Class A-IO
Certificates, Class AV-1 Certificates, Class M-1 Certificates, Class M-2
Certificates and Class B Certificates.
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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 calculated for the first Accrual Period shall equal 6.61625% 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 6.04 or 10.01,
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 each Loan Group created
hereunder as a result of the purchase of all of the Mortgage Loans pursuant to
the last sentence of Section 9.01 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 Stated Principal Balance of all of the Mortgage Loans as of the Cut-off
Date.
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.
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Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) 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 the aggregate Stated Principal Balances of the Mortgage
Loans as of the last day of the related Due Period over the Certificate
Principal Balances of the Certificates on such date (after taking into account
the payment of principal other than any Extra Principal Distribution Amount on
such Certificates on such Distribution Date).
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, Class XP and Residual Certificates, the respective interest
rates subject to the respective interest rate caps as set forth in Section 5.01.
Percentage Interest: With respect to any Certificate of the related
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 such Class.
Periodic Rate Cap: As to each Adjustable Rate Mortgage Loan and the
related Mortgage Note, the provision therein that limits permissible increases
and decreases in the Mortgage Rate on any Adjustment Date except that the
Initial Adjustment Dates for certain of the 2/28 Mortgage Loans and 3/27
Mortgage Loans are subject to a provision that limits permissible increases and
decreases in the Mortgage Rates as provided in the related Mortgage Notes.
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;
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(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
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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 the
Certificate 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 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
Class R 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
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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 (which shall not
be an expense of the Trustee) that states that the Transfer of an Ownership
Interest in a Class R Certificate to such Person may cause the Trust Fund to
fail to qualify as a REMIC at any time that 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, 2.04, 3.12
or 9.01 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
preceding the month in which such Distribution Date occurs.
Principal Distribution Amount: With respect to each Distribution Date,
the sum of (x) the Principal Funds for such Distribution Date plus (y) any Extra
Principal Distribution Amount for such Distribution Date less (z) any Excess
Overcollateralization Amount for such Distribution Date.
Principal Funds: With respect to any Distribution Date, the sum,
without duplication, of (i) the scheduled principal (or in the case of the
Simple Interest Loans, the actual principal) collected during the related Due
Period or Advanced (other than in the case of Simple Interest Loans) on or
before the related Master Servicer Advance Date, (ii) Principal Prepayments
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 with respect to the related Prepayment Period, (iv) the aggregate of
all Substitution Adjustment Amounts for the related Determination Date in
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connection with the substitution of Mortgage Loans pursuant to Section 2.03(c)
and (v) all Liquidation Proceeds collected during the related Prepayment Period
(to the extent such Liquidation Proceeds relate to principal) less all amounts
relating to principal reimbursed with respect to the related Due Period pursuant
to Section 3.08(a).
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, 2.04, 3.12 and 9.01 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 21,
2000 relating to the public offering of the Offered Certificates.
PUD: A Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan (x) required to be
repurchased by the Seller or purchased by the Master Servicer, as applicable,
pursuant to Section 2.02 or 2.03 hereof or by the Depositor pursuant to Section
2.04 hereof or (y) that the Master Servicer has a right to purchase pursuant to
Section 3.12 hereof, an amount equal to the sum of (i) 100% of the unpaid
principal balance (or, if such purchase or repurchase, as the case may be, is
effected by the Seller (and the Seller is the Master Servicer) or by the Master
Servicer, the Stated Principal Balance) of the Mortgage Loan as of the date of
such purchase and (ii) accrued interest thereon at the applicable Mortgage Rate
(or, if such purchase or repurchase, as the case may be, is effected by the
Seller (and the Seller is the Master Servicer) or by the Master Servicer, at the
Net Mortgage Rate) from (a) the date through which interest was last paid by the
Mortgagor (or, if such purchase or repurchase, as the case may be, is effected
by the Seller (and the Seller is the Master Servicer) or by the Master Servicer,
the date through which interest was last advanced and not reimbursed by the
Master Servicer) to (b) the first day of the month in which the Purchase Price
is to be distributed to Certificateholders.
Rating Agency: Moody's 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
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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 the Certificates which bear a fixed rate
of interest, the Class B-IO, Class XP and Residual Certificates and (a) the
first Distribution Date, the Closing Date; and (b) with respect to any other
Distribution Date the close of business on the last Business Day of the month
preceding the month in which the applicable Distribution Date occurs. With
respect to any Distribution Date and the Certificates which bear an adjustable
rate of interest, the Business Day preceding such Distribution Date.
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
outstanding balance of the 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, 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 outstanding
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 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 or
any affiliate thereof and (iii) which have been designated as such by the
Trustee.
Regular Certificate: Any Certificate other than a Residual Certificate.
Remaining Excess Spread: With respect to any Distribution Date is 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 4.06(a).
REMIC I Certificates: The REMIC I Regular Interests and the Class R-1
Certificate.
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REMIC I Regular Interests: As defined in Section 4.06(b).
REMIC II: The segregated pool of assets described in Section 4.06(a).
REMIC II Certificates: The REMIC II Regular Interests and the Class R-2
Certificate.
REMIC II Regular Interests: As defined in Section 4.06(c).
REMIC III: The segregated pool of assets described in Section 4.06(a).
REMIC III Certificates: The REMIC III Regular Interests and the Class
R-3 Certificate.
REMIC III Regular Interests: As defined in Section 4.06(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 4.04(p).
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)
with respect to any Fixed Rate Mortgage Loan, have a Mortgage Rate not less than
or no more than 1% per annum higher than the Mortgage Rate of the Deleted
Mortgage Loan and, with respect to any Adjustable Rate Mortgage Loan: (a) have a
Maximum Mortgage Rate no more than 1% per annum higher or 1% per annum lower
than the Maximum Mortgage Rate of the Deleted Mortgage Loan; (b) have a Minimum
Mortgage Rate no more than 1% per annum higher or 1% per annum lower than the
Minimum Mortgage Rate of the Deleted Mortgage Loan; and (c) have the same Index
and Periodic Rate Cap as that of the Deleted Mortgage Loan and a Gross Margin
not more than 1% per annum higher or 1% per annum lower than that of the Deleted
Mortgage Loan; (iii) have the same or higher credit quality characteristics than
that of the Deleted Mortgage Loan; (iv) be accruing interest at a rate not more
than 1% per annum higher or 1% per annum lower than that of the Deleted Mortgage
Loan; (v) have a Loan-to-Value Ratio or Combined Loan-to-Value Ratio, as
applicable, no higher than that of the Deleted Mortgage Loan; (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 or visa versa; (viii) provide
for a prepayment charge on terms substantially similar to those of the
prepayment charge, if any, of the Deleted Mortgage Loan; (ix) have the same lien
priority as the Deleted Mortgage Loan; (x) constitute the
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same occupancy type as the Deleted Mortgage Loan or be owner occupied; and (xi)
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
Master Servicer to the Trustee, substantially in the form of Exhibit H. Each
Request for Release furnished to the Trustee by 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 Master Servicer.
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 Certificate: The Class R Certificate, which represents each of
the Class R-1, Class R-2 and Class R-3 Certificates until the Class R
Certificate is exchanged for a Class R-1, Class R-2 and Class R-3 Certificate,
and then each of the Class R-1, Class R-2 and Class R-3 Certificates.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also 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, 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 Mortgage Corporation, a Delaware corporation, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Senior Certificates: The Class AF-1 Certificates, Class AF-2
Certificates, Class AF-3 Certificates, Class AF-4 Certificates, Class A-IO
Certificates and Class AV-1 Certificates.
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 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 hereunder,
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,
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without limitation, realtors' commissions) and (iv) compliance with the
obligations under Section 3.10 (including advances made because of the existence
of any deductible clause on any forced place insurance).
Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to 1/12th of the Servicing Fee Rate multiplied by the Stated
Principal Balance of such Mortgage Loan or, in the event of any payment of
interest that accompanies a Principal Prepayment in full made by the Mortgagor,
interest at the Servicing Fee Rate on the Stated Principal Balance of such
Mortgage Loan for the period covered by such payment of interest.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
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 Section 3.05(a) hereof 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 a daily accrual
of interest.
Specified Overcollateralization Amount: Prior to the Stepdown Date,
6.00% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, and on and after the Stepdown Date, 12.00% of the Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period, subject to a
minimum amount equal to the OC Floor; provided that, if on any Distribution Date
a Trigger Event has occurred, the Specified Overcollateralization Amount shall
not be reduced to the applicable percentage of the then current Stated Principal
Balance of the Mortgage Loans until the Distribution Date on which a Trigger
Event no longer exists.
Specified Senior Enhancement Percentage: 48.80%.
Startup Day: The Startup Day for each REMIC formed hereunder shall be
the Closing Date.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property and any Distribution Date, the Cut-off Date Principal Balance
thereof minus the sum of (a) in the case of each Mortgage Loan other than a
Simple Interest Loan, the principal portion of the Scheduled Payments due with
respect to such Mortgage Loan during each Due Period ending prior to such
Distribution Date (and irrespective of any delinquency in their payment) and
(ii) in the case of each Simple Interest Loan, the principal portion of the
Scheduled Payments that were received by the Master Servicer as of the close of
business on the Determination Date related to such Distribution Date and (b) 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 3.12 with respect to such
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Mortgage Loan, that were received by the Master Servicer as of the close of
business on the last day of the Prepayment Period related to such Distribution
Date. The Stated Principal Balance of any Mortgage Loan that becomes a
Liquidated Loan will be zero immediately following the Prepayment Period in
which such Mortgage Loan becomes a Liquidated Loan. References herein to the
Stated Principal Balance of a Loan Group at any time shall mean the aggregate
Stated Principal Balance of all Mortgage Loans in such Loan Group at such time.
Stepdown Date: The later to occur of (i) the Distribution Date in
December 2003 or (ii) the first Distribution Date on which the Senior
Enhancement Percentage (calculated for this purpose only after taking into
account distributions of principal on the related Mortgage Loans on such
Distribution Date, but prior to any applications of Principal Funds to the
Certificates) is greater than or equal to the Specified Senior Enhancement
Percentage.
Subordinated Certificates: The Class M-1, Class M-2, Class B, Class
B-IO and Residual Certificates.
Subordinated Certificates Rate Cap: For any Distribution Date
(a) with respect to any Accrual Period for the Class M-1,
Class M-2 and Class B Certificates through the Accrual Period relating
to the Distribution Date in May, 2003, the lesser of (i) the Aggregate
Groups I and II Net Rate Cap and (ii) the Group III Net Rate Cap, and
(b) thereafter, the least of (i) the Group I Net Rate Cap,
(ii) the Group II Net Rate Cap and (iii) the Group III Net Rate Cap.
Subservicer: As defined in Section 3.02(a).
Subservicing Agreement: As defined in Section 3.02(a).
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03(c).
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.
3/27 Mortgage Loan: A Mortgage Loan having a Mortgage Rate that is
fixed for 36 months after origination thereof before such Mortgage Rate becomes
subject to adjustment.
Transfer Affidavit: As defined in Section 5.02(c).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
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Trigger Event: With respect to any Distribution Date after the Stepdown
Date, a Trigger Event exists if either a Cumulative Loss Event or 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 (except with respect to Simple Interest Loans) all
interest accruing and principal due with respect thereto after the Cut-off Date
(and with respect to the Simple Interest Loans interest and principal received
after the Cut-off Date) to the extent not applied in computing the Cut-off Date
Principal Balance thereof, exclusive of interest not required to be deposited in
the Certificate Account pursuant to Section 3.05(b)(ii); (ii) the Certificate
Account and the Distribution Account 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 conversion, voluntary
or involuntary, of any of the foregoing into cash or other liquid property.
Trustee: Xxxxx Fargo Bank Minnesota, 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 any Distribution Date and Loan Group, an amount
equal to the product of 1/12th of the Trustee Fee Rate and the aggregate Stated
Principal Balance of the Mortgage Loans in such Loan Group as of the first day
of the related Due Period.
Trustee Fee Rate: 0.015% per annum.
Turbo Amount: As defined in Section 4.06(c).
2/28 Mortgage Loan: A Mortgage Loan having a Mortgage Rate that is
fixed for 24 months after origination thereof before such Mortgage Rate becomes
subject to adjustment.
Unpaid Realized Loss Amount: As of any Distribution Date, and each
Class of Certificates other than the Class A-IO, Class B-IO, Class XP and
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 95% to the Offered Certificates, 4%
to the Class B-IO Certificates and 1% to the Residual Certificates, with the
allocation among the Certificates other than the Class B-IO and Residual
Certificates to be in proportion to the Certificate Principal Balance (and, so
long as the Class A-IO Certificates are outstanding, its Class Notional Balance)
of each Class relative to the Certificate Principal Balance (or Certificate
Notional Balance) of all other such Classes, and with the allocation among the
Residual Certificates being one-third of 1% to each of the Class R-1, Class R-2
and Class
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X-0 Xxxxxxxxxxxx. Voting Rights will be allocated among the Certificates of each
such Class in accordance with their respective Percentage Interests.
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ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.
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 Mortgage Loans, including all interest and
principal received and receivable by the Seller on or with respect to the
Mortgage Loans after the Cut-off Date, other than (except with respect to Simple
Interest Loans) interest and principal due on or before the Cut-off Date.
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 for the benefit of
the Certificateholders, the following documents or instruments with respect to
each Mortgage Loan so assigned: (i) the original Mortgage Note, including any
riders thereto, endorsed without recourse to the order of "Xxxxx Fargo Bank
Minnesota, National Association, as Trustee for certificateholders of Bear
Xxxxxxx Asset Backed Securities, Inc. Asset Backed Certificates, Series 2000-2,"
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, (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 "Xxxxx Fargo
Bank Minnesota, National Association, as Trustee for certificateholders of
Bear Xxxxxxx Asset Backed Securities, Inc. Asset Backed Certificates, Series
2000-2," (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, 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
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assignments thereof have been delivered or are being delivered to recording
offices for recording and have not been returned to the Seller in time to permit
their delivery as specified above, the Seller 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 Seller
may deliver a lost note affidavit and indemnity 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 Seller, 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
Certificate Account on the Closing Date. In the case of the documents referred
to in clause (x) above, the Seller shall deliver such documents to the Trustee
promptly after they are received. The Master Servicer 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 Trustee 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 the Master Servicer, at the Master Servicer's expense, to
cause each such previously unrecorded assignment to be submitted for recording
as specified above. 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 Trustee shall, if not so completed, complete the assignment of the
related Mortgage in the manner specified in clause (iii) above.
Section 2.02. Acceptance by Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt of, subject to its
further review and the exceptions it notes pursuant to the procedures described
below, the documents (or certified copies thereof) delivered to it 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 as Trustee 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 and indemnity in lieu
thereof. No later than 45 days after the Closing Date (or, with respect to any
Replacement Mortgage Loan, within 5 Business Days after the receipt by the
Trustee thereof), 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 and 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
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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 subclauses (b)(iv) and (b)(vi) of Section 2.01, the
Trustee's obligations shall extend only to documents actually delivered pursuant
to such subclauses). 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 to the effect that such defect does not
materially or adversely affect the interests of Certificateholders in such
Mortgage Loan within 60 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 Trustee's notification 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 (or with
respect to any Replacement Mortgage Loan, within 5 Business Days after the
receipt by the Trustee thereof) , 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 and Master Servicer, a Final
Certification substantially in the form annexed hereto as Exhibit C-3. In
conducting such review, the Trustee will ascertain whether (i) 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(b) (provided, however, that with
respect to those documents described in subclauses (b)(iv) and (b)(vi) of
Section 2.01, the Trustee's obligations shall extend only to documents actually
delivered pursuant to such subclauses); and (ii) an original title insurance
policy (or if a master title policy has been issued by the title insurer, a
mortgagee's certificate of title insurance), if available, or a copy thereof,
whenever a title insurance binder or commitment or other assurance of title was
originally delivered to the Trustee. If the Trustee finds any document discussed
in clauses (i) or (ii) of the preceding sentence 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, if the Final Certification is to be delivered within the next 45
days, or otherwise 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 to the effect that such defect does not materially
or adversely affect the interests of Certificateholders in such Mortgage Loan
within 60 days from the date of notice from the Trustee of the defect and if the
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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 Trustee's notification 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,
to the Trustee. Upon deposit of the Purchase Price in the Certificate Account
and receipt of a Request for Release, the Trustee shall release to the Seller
the related Mortgage File and 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
certification of the deposit of the Purchase Price in the Certificate Account
was received by the Trustee. 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.
Section 2.03. Representations, Warranties and Covenants of the
Master Servicer and the Seller.
(a) The Master Servicer hereby represents and warrants to the
Depositor and the Trustee as follows, as of the Closing Date:
(i) The Master Servicer 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 Master Servicer 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) The Master Servicer 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 the part of the Master Servicer 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 Master
Servicer, enforceable against the Master Servicer in accordance with
its terms, except that (a) the enforceability hereof may be limited by
bankruptcy, insolvency,
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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
Master Servicer, the servicing of the Mortgage Loans by the Master
Servicer 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 Master Servicer and will not (A) result in a material breach of
any term or provision of the charter or by-laws of the Master Servicer
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 Master Servicer
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 Master
Servicer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Master Servicer; and the
Master Servicer 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 Master Servicer's
ability to perform or meet any of its obligations under this Agreement.
(iv) The Master Servicer is an approved servicer 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 Master
Servicer's knowledge, threatened, against the Master Servicer that
would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Master Servicer
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 the execution, delivery
and performance by the Master Servicer of, or compliance by the Master
Servicer with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval, authorization or
order is required, the Master Servicer has obtained the same.
(b) The Seller hereby represents and warrants to the Depositor
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
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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 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 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.
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(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) Except for approximately 3.82% of the Mortgage Loans in
Loan Group I, approximately 3.34% of the Mortgage Loans in Loan Group III and
approximately 5.32% of the Mortgage Loans in Loan Group II (each by Stated
Principal Balance as of the Cut-off Date), all payments required to be made
prior to the Cut-off Date have been made and no Mortgage Loan is delinquent
thirty-one (31) 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 the 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 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 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
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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, in the case of a Mortgage Loan that is not a first priority lien,
with the outstanding principal balance of any 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. Each
Mortgage Loan has in place a fully-paid life of loan flood certification from a
Xxxxxx Mae or Xxxxxxx Mac approved vendor, assigned in care of the Master
Servicer or its designee, which provides for notification to the Master Servicer
or its designee, of changes in designated flood areas which would affect such
Mortgage Loan.
(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 not a first 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-
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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 the related servicing rights and the related
Originator or the Seller was the custodian of the related escrow 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 (I)(1) and (2) above) the Seller (as assignee), its
successors and assigns as to the first priority lien of the Mortgage, if
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. 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, 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.
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(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, 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. No escrow deposits or escrow payments or other charges or payments due the
Seller have been capitalized under any Mortgage or the related Mortgage Note.
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.
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(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 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, as applicable, by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to Xxxxxx Mae and Xxxxxxx Mac. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan.
(FF) [Reserved].
(GG) The 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 planned unit development as defined by Xxxxxx Mae or a
manufactured dwelling which conforms with Xxxxxx Xxx 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) With respect to the Adjustable Rate Mortgage Loans, on
each Adjustment Date, the Mortgage Rate shall be adjusted to equal the
respective Index plus the respective Gross Margin (in the case of the Six-Month
LIBOR Mortgage Loans rounded up or down to the nearest 0.125%), subject to the
Periodic Rate Cap and the Maximum Mortgage Rate as set forth in the respective
Mortgage Note. None of the Mortgage Loans contain a provision allowing the
Mortgagor to convert the Mortgage Note from an adjustable rate mortgage loan to
a fixed rate mortgage loan. 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
sub-prime credit underwriting guidelines.
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(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.
(LL) As of the Cut-off Date, none of the Mortgage Loans in
Loan Group I was subject to the Home Ownership and Equity Protection Act of 1994
("HOEPA") or was out of compliance with any comparable state law (to the extent
applicable). The Seller has procedures in place to ensure compliance with the
requirements of HOEPA and any comparable state law (to the extent applicable)
and the Initial Mortgage Loans in Loan Group 1 were originated in compliance
with such procedures and requirements.
(MM) No proceeds from any Mortgage Loan in Loan Group I were
used to finance single-premium credit, life and disability insurance policies.
(NN) No Mortgage Loan imposes a Prepayment Charge for a term
in excess of five years.
(c) Upon discovery by any of the parties hereto of a breach of
a representation or warranty set forth in Section 2.03(a) or (b) 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. Any breach of a representation or warranty contained in
clauses (LL), (MM) and/or (NN) above, shall be deemed to affect materially and
adversely the interests of the Certificateholders. Each of the Master Servicer
and the Seller (each, a "Representing Party") hereby covenants with respect to
the representations and warranties set forth in Sections 2.03(a) and (b),
respectively, that within 90 days of the discovery of a breach of any
representation or warranty set forth herein 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. Any
Representing Party liable for a breach under this Section 2.03 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 Master Servicer to amend the Mortgage
Loan Schedule, any Representing Party liable for a breach under this Section
2.03 shall, unless it cures such breach in a timely fashion pursuant to this
Section 2.03, promptly notify the Master Servicer whether such Representing
Party intends either to repurchase, or to substitute for, the Mortgage Loan
affected by such breach. With respect to the representations and warranties
described in this Section that are made to the best of the Representing Party'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 Representing Party's lack of
knowledge with respect to the substance of such representation or warranty, the
Representing Party
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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 delivering such Replacement Mortgage Loan shall deliver to the Trustee
for the benefit of the Certificateholders the 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 delivering such Replacement Loan on such
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the Scheduled Payment due on any Deleted
Mortgage Loan for the related Due Period and thereafter the Seller shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer 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 and the Master
Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon
such substitution, the Replacement Mortgage Loan or Loans shall be subject to
the terms of this Agreement in all respects, and the Seller delivering such
Replacement Mortgage Loan 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) with respect to such
Mortgage Loan. Upon any such substitution and the deposit to the Certificate
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 Representing Party the Mortgage File relating to such Deleted Mortgage
Loan and held for the benefit of the Certificateholders and shall execute and
deliver at the Master Servicer's direction such instruments of transfer or
assignment as have been prepared by the Master Servicer, 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) 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 Certificate 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 Certificate Account
pursuant to Section 3.08 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
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recourse, as shall be necessary to transfer title from the Trustee for the
benefit of the Certificateholders and transfer the Trustee'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.
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(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
with respect to each Mortgage Loan as of the Closing Date, and following the
transfer of the Mortgage Loans to it by the Seller, the Depositor had good title
to the Mortgage Loans and the 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 two immediately preceding paragraphs shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of a breach of any of the foregoing representations and
warranties set forth in the immediately preceding paragraph (referred to herein
as a "breach"), which breach materially and adversely affects the interest of
the Certificateholders, the party discovering such breach shall give prompt
written notice to the others and to each Rating Agency. The Depositor hereby
covenants with respect to the representations and warranties made by it in this
Section 2.04 that within 90 days of the earlier of the discovery by it or
receipt of written notice by it from any party of a breach of any representation
or warranty set forth herein made 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, shall
repurchase or replace the affected Mortgage Loan or Loans in accordance with the
procedure set forth in Section 2.03(c).
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, 2.03
or 2.04 shall be made unless the Representing Party making such repurchase or
substitution 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,
2.03 or 2.04) upon the earlier of (a) the occurrence of a default or imminent
default with respect to such 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.
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(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. Authentication 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, authenticated 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, the
Trustee as follows:
(a) the Master Servicer 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
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) The Master Servicer 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.
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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 (other than a
waiver of a Prepayment Charge) 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 the Trust Fund
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.
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
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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 or
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 none of them is obligated to supervise the performance of the
Master Servicer hereunder or otherwise.
Section 3.04. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no
longer be the Master Servicer hereunder (including by reason of an Event of
Default), the Trustee or its designee shall pursuant to Section 7.02 thereupon
assume all of the rights and obligations of the Master Servicer hereunder
arising thereafter (except that the Trustee shall not be (i) liable for losses
of the Master Servicer pursuant to Section 3.10 hereof or any acts or omissions
of the predecessor Master Servicer hereunder, (ii) obligated to make Advances if
it is prohibited from doing so by applicable law, (iii) obligated to effectuate
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
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to Section 2.03, or (v) deemed to have made any representations and warranties
hereunder, including pursuant to Section 2.03 or the first paragraph of Section
6.02 hereof. If the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of termination following any Event of Default),
the Trustee (or any other successor servicer) may, at its option, succeed to any
rights and obligations of the Master Servicer under any subservicing agreement
in accordance with the terms thereof; provided that the Trustee (or any other
successor 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 Master Servicer thereunder; and the Master Servicer shall not
thereby be relieved of any liability or obligations under the subservicing
agreement arising prior to the date of such succession.
The Master Servicer shall, upon request of the Trustee, but at
the expense of the 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;
Certificate 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 or penalty interest (other than a Prepayment
Charge) in connection with the prepayment of a Mortgage Loan and (ii) extend the
due dates for payments due on a Mortgage Note for a period not greater than 125
days. In the event of any such arrangement, the Master Servicer shall make
Advances on the related Mortgage Loan 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 4.01. 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 Fixed Rate Mortgage Loan, such reduced Mortgage Rate shall in
no event be lower than 7.50% and (ii) in the case of an Adjustable Rate Mortgage
Loan, only if the related Mortgage 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.
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(b) The Master Servicer shall establish and maintain a
Certificate Account 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 related 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;
(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 and any Substitution Adjustment
Amount;
(viii) all Advances made by the Master Servicer pursuant to
Section 4.01;
(ix) all Prepayment Charges collected by the Master Servicer;
and
(x) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Master
Servicer into the Certificate Account shall be exclusive, it being understood
and agreed that, without limiting the generality of the foregoing, payments in
the nature of late payment charges 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 Certificate Account, to withdraw such
amount from the Certificate 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 Certificate Account,
that describes the amounts deposited in error in the Certificate Account. The
Master Servicer shall maintain adequate records with respect to all withdrawals
made pursuant to this Section. All funds deposited in the Certificate Account
shall be held in trust for the Certificateholders until withdrawn in accordance
with Section 3.08.
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(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) $100 provided to the Trustee on the Closing Date to be
used to pay principal on Class XP Certificates on the Distribution Date
in July, 2005, 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 the Certificate Account or
the Distribution Account shall invest the funds in each such account, as
directed by the Master Servicer in the case of the Certificate Account and as
directed by the Trustee in the case of the Distribution Account, in Permitted
Investments which shall mature not later than (i) in the case of the Certificate
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 Certificate 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 Certificate Account,
all income and gain net of any losses realized from any such investment shall be
for the benefit of the Master Servicer as 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
Certificate Account or the Distribution Account in respect of any such
investments shall be deposited by the Master Servicer into the Certificate
Account or by the Trustee into the
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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 Certificate 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; Escrow Accounts.
To the extent required by the related Mortgage Note, the
Master Servicer shall establish and maintain one or more accounts (each, an
"Escrow 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 an Escrow Account in violation of applicable law.
Withdrawals of amounts so collected from the Escrow 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 Escrow Account or to clear and terminate
the Escrow Account at the termination of this Agreement in accordance with
Section 9.01 hereof. The Escrow 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 Certificate
Account and the Distribution Account.
(a) The Master Servicer may from time to time make withdrawals
from the Certificate 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 Servicing Fee for the period with
respect to
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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 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 3.12, 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
6.03 hereof;
(viii) to withdraw pursuant to Section 3.05 any amount
deposited in the Certificate Account and not required to be deposited
therein; and
(ix) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01 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
Certificate Account and remit to the Trustee the amount of Interest Funds,
Principal Funds and the Prepayment Charges 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 Certificate Account pursuant to subclauses
(i), (ii), (iv), (v) and (vi) above. Prior to making any withdrawal from the
Certificate 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
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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
8.11). 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 8.05, 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 9.01 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. 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 Certificate 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
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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 Certificate 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.
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(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 Rate, the Minimum Rate, the Gross Margin, the
Periodic Rate Cap, the 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; Repurchase of Certain Mortgage Loans.
(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 Certificate 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
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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 Certificate 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.
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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 Certificate 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 Certificate 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) 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 Mortgage Loan that is 91 days or more
delinquent at a price equal to the Purchase Price. The Purchase Price for any
Mortgage Loan purchased hereunder shall be deposited in the Certificate Account
and the Trustee, upon receipt of a Request for Release from the Master Servicer,
shall release or cause to be released to the purchaser of such Mortgage Loan the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment prepared by the purchaser of such Mortgage Loan, in each case
without recourse, as shall be necessary to vest in the purchaser of such
Mortgage Loan any Mortgage Loan released pursuant hereto and the purchaser of
such Mortgage Loan shall succeed to all the Trustee's right, title and interest
in and to such Mortgage Loan and all security and documents related thereto.
Such assignment shall be an assignment outright and not for security.
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The purchaser of such Mortgage Loan 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.
(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 Certificate Account, the Distribution
Account or the 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 Certificate 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
Certificate Account,
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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
Certificate 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 Certificate Account or Distribution
Account or in any Escrow 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 Certificate Account
out of each payment of interest on a Mortgage Loan included in the Trust Fund an
amount equal to its Servicing Fee at the applicable 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 (but not Prepayment Charges),
all income and gain net of any losses realized from Permitted Investments with
respect to funds in or credited to the Certificate Account shall be retained by
the Master Servicer to the extent not required to be deposited in the
Certificate 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
maintenance
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of the other forms of insurance coverage 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.
The Master Servicer shall deliver to the Depositor and the
Trustee within 120 days after June 30 of each year commencing June 30, 2001, 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 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.
Section 3.18. Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
Within 120 days after June 30 of each year, beginning with
June 30, 2001, the Master Servicer at its expense shall cause a nationally
recognized firm of independent public accountants (who may also render other
services to the Master Servicer, the Seller or any affiliate thereof) that is a
member of the American Institute of Certified Public Accountants to furnish a
report to the Trustee, Depositor and the Seller in compliance with the Uniform
Single Attestation Program for Mortgage Bankers. Copies of such report shall be
provided by the Trustee to any Certificateholder upon request at the Master
Servicer's expense, provided such report is delivered by the Master Servicer to
the Trustee.
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ARTICLE IV.
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.
Subject to the conditions of this Article IV, the Master
Servicer, as required below, shall make an Advance and deposit such Advance in
the Certificate Account. Each such Advance shall be remitted to the Certificate
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 Certificate Account that any Amount Held for Future
Distributions has been used by the Master Servicer in discharge of its
obligation to make any such Advance and (ii) transfer such funds from the
Certificate Account to the Distribution Account. Any funds so applied and
transferred shall be replaced by the Master Servicer by deposit in the
Certificate 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 Certificate 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 4.01.
Section 4.02. Reduction of Servicing Compensation in
Connection with Prepayment Interest Shortfalls.
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 Servicing Fee for
such Distribution Date, deposit into the Certificate Account, as a reduction of
the 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; and in case of such deposit,
the Master Servicer shall not be entitled to any recovery or reimbursement from
the Depositor, the Trustee, the Trust Fund or the Certificateholders.
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Section 4.03. REMIC Distributions.
On each Distribution Date the Trustee shall allocate
distributions to the REMIC I Regular Interests, the REMIC II Regular Interests,
and the REMIC III Regular Interests, in accordance with Section 4.06 hereof.
Section 4.04. Distributions.
(a) On the Distribution Date in July, 2005, an amount equal to
$100 shall be distributed on the Class XP Certificates to reduce the Certificate
Principal Balance thereof to zero. On each Distribution Date, the Trustee shall
make the following allocations from the Distribution Account (i) on any
Distribution Date on or before the July 2005 Distribution Date an amount equal
to the Prepayment Charges received in the related Prepayment Period shall be
distributed to the Class XP Certificates, and (ii) an amount equal to the Net
Interest Funds and Principal Funds for such Distribution Date shall be
distributed in the following order of priority:
First, to pay accrued and unpaid interest on the Offered Certificates,
in the following order of priority:
1. From Net Interest Funds in respect of Loan Group I and Loan
Group II, in proportion to the amounts of Net Interest Funds
relating to each such Loan Group, to the Class A-IO
Certificates, the Current Interest and any Interest Carry
Forward Amount for such Class;
2. (a) From remaining Net Interest Funds in respect of Loan Group
I, to the Class AF-1 Certificates, the Current Interest and
any Interest Carry Forward Amount for such Class, (b) from
remaining Net Interest Funds in respect of Loan Group II, to
each Class in the Class A-II Group, Current Interest and any
Interest Carry Forward Amount for such Class, on a pro rata
basis in accordance with the amount of accrued interest due
thereon, and (c) from Net Interest Funds in respect of Loan
Group III, to the Class AV-1 Certificates, the Current
Interest and any Interest Carry Forward Amount for such Class;
3. From remaining Net Interest Funds in respect of Loan Group I,
Loan Group II and Loan Group III, to the Class M-1
Certificates, the Class M-2 Certificates and the Class B
Certificates, sequentially, in that order, the Current
Interest and any Interest Carry Forward Amount 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 second (D) through eighth, below.
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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.
Second, 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 Senior Certificates entitled to payments of principal
as follows: the Principal Distribution Amount to (a) the Class
AF-1 Certificates, (b) the Class AF-2 Certificates, Class AF-3
Certificates and Class AF-4 Certificates, sequentially, in
that order, and (c) the Class AV-1 Certificates, pro rata,
based on the Principal Funds for such Distribution Date from
each of Loan Group I, Loan Group II and Loan Group III,
respectively, in each case until the Certificate Principal
Balance of the respective Class is 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;
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 Senior Certificates entitled to payments of principal,
as follows: from the Principal Distribution Amount, the Class
A Principal Distribution Amount to (a) the Class AF-1
Certificates, (b) Class AF-2 Certificates, the Class AF-3
Certificates and the Class AF-4 Certificates, sequentially, in
that order, and (c) the Class AV-1 Certificates, pro rata,
based on the Principal Funds for such Distribution Date from
each of Loan Group I, Loan Group II and Loan Group III,
respectively, in each case until the Certificate Principal
Balance of the respective Class is 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;
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; and
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(C) Notwithstanding the provisions of clauses second (A) and (B), if on any
Distribution Date all of the Senior Certificates of a Class A Group or
Groups are no longer outstanding, the pro rata portion of the Class A
Principal Distribution Amount otherwise allocable to such Class A Group
or Groups will be allocated to the remaining Class A Group or Groups,
pro rata in accordance with the aggregate Certificate Principal
Balances of the outstanding Senior Certificates of the Class A Group or
Groups to which such funds are allocated, except that the pro rata
portion of the Class A Principal Distribution Amount otherwise
allocable to the Class A-II Group or Class A-III Group shall be payable
to the Class AF-1 Certificates only if no other Classes of Senior
Certificates are outstanding; and
(D) Notwithstanding the provisions of clauses second (A) and (B), if on any
Distribution Date the pro rata portion of the Class A Principal
Distribution Amount allocated to a Class A Group is insufficient to pay
to the related Senior Certificates the principal to which they are
entitled under clause second (B) (1), any Excess Cashflow will be
allocated in an amount equal to the lesser of the deficiency and the
aggregate amount of such Excess Cashflow, and if the pro rata portion
of the Class A Principal Distribution Amount is insufficient in more
than one Class A Group, then pro rata based upon the respective amounts
of such deficiencies, except that Excess Cashflow shall be payable to
the Class AF-1 Certificates only if no other Classes of Senior
Certificates are outstanding
Third, to the Senior Certificates as follows: from any remaining Excess
Cashflow, pro rata based on the Principal Funds for such Distribution Date from
each of Loan Group I, Loan Group II and Loan Group III to (a) the Class AF-1
Certificates an amount equal to any Unpaid Realized Losses for such Class for
such Distribution Date, (b) the Class AF-2 Certificates, the Class AF-3 and the
Class AF-4 Certificates, sequentially, in that order, an amount equal to any
Unpaid Realized Losses for the applicable Class for such Distribution Date and
(c) the Class AV-1 Certificates an amount equal to any Unpaid Realized Losses
for such Class for such Distribution Date.
Fourth, from any remaining Excess Cashflow, to the Class M-1
Certificates an amount equal to any Unpaid Realized Losses for such Class for
such Distribution Date;
Fifth, from any remaining Excess Cashflow, to the Class M-2
Certificates any amount equal to Unpaid Realized Losses for such Class for such
Distribution Date;
Sixth, from any remaining Excess Cashflow, to the Class B Certificates
any amount equal to Unpaid Realized Losses 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; and
Eighth, any remaining amounts to the Class R Certificate in respect of
the applicable Class of Residual Certificates based on the REMIC in which such
amounts remain; and if the Class R Certificate has been exchanged for the Class
R-1, Class R-2 and Class R-3 Certificates, to such applicable Class based on the
related REMIC in which such amounts remain.
(b) Subject to Section 9.02 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
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holder at a bank or other entity having appropriate facilities therefor, if (i)
such Holder has so notified the Trustee at least 5 Business Days prior to the
related Record Date and (ii) such Holder shall hold Regular Certificates with
aggregate principal denominations of not less than $1,000,000 or evidencing a
Percentage Interest aggregating 10% or more with respect to such Class 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 9.02 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 18th day of
each month or, if such 18th day is not a Business Day, on the next preceding
Business Day, the Master Servicer shall deliver a report to the Trustee in the
form of a computer readable magnetic tape (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 such as to
permit the Trustee to prepare the Monthly Statement to Certificateholders and
make the required distributions for the related Distribution Date (the
"Remittance Report"). The Trustee shall, provide to the Master Servicer a
monthly Statement of the account activity in the Distribution Account by the
15th day of the month following the Distribution Date.
Section 4.04A. Allocation of Realized Losses
Any Realized Losses with respect to the Mortgage Loans in the
aggregate or the Mortgage Loans in a particular Loan Group, as applicable, shall
be applied on each Distribution Date after the distributions provided for in
Section 4.04 in reduction of the Certificate Principal Balance of the Class or
Classes of Certificates as provided in the definition of Applied Realized Loss
Amount.
Section 4.05. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall
prepare and make available to each Holder of a Class of Certificates of the
Trust Fund, 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 of principal 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 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 and of the Mortgage Loans in each Loan Group for the
following Distribution Date;
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(v) the related amount of the Servicing Fees paid to or
retained by the Master Servicer;
(vi) the Pass-Through Rate for each Class of Offered
Certificates with respect to the current Accrual Period;
(vii) any interest carryforward amount for each Class of
Offered Certificates;
(viii) [reserved];
(ix) the amount of Advances for each Loan Group included in
the distribution on such Distribution Date;
(x) the cumulative amount of Applied Realized Loss Amounts to
date and, in addition, if the Certificate Principal Balances of the
Class M-1, Class M-2 and Class M-3 Certificates have all been reduced
to zero, the cumulative amount of Applied Realized Loss Amounts
allocated to each of the Class A-I Group, Class A-II Group and Class
A-III Group;
(xi) the number and aggregate principal amounts of Mortgage
Loans in each Loan Group (A) Delinquent (exclusive of Mortgage Loans in
foreclosure) (1) 31 to 60 days, (2) 61 to 90 days, (3) 91 or more days
and (4) in bankruptcy, and (B) in foreclosure and delinquent (1) 31 to
60 days, (2) 61 to 90 days, (3) 91 or more days and (4) in bankruptcy,
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 in each Loan Group, 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 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 such Distribution
Date;
(xiv) the Realized Losses for each Loan Group during the
related Prepayment Period and the cumulative Realized Losses for each
Loan Group through the end of the preceding month; and
(xv) whether a Trigger Event exists.
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 and its fax-on-demand service. The Trustee's fax-on-demand
service may be accessed by calling (000) 000-0000. The Trustee's internet
website shall initially be located at "xxx.xxxxxxx.xxx". Assistance in using the
website or the fax-on-demand service 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
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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 and notify or send a copy of each statement provided
pursuant to this Section 4.05 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), (a)(ii) and (a)(vi) of this Section 4.05 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
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(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 pursuant to Section 8.11.
Section 4.06. 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, the
Certificate Account, the Distribution Account, any REO Property, and any
proceeds of the foregoing. The REMIC I Regular Interests (other than the Class
XP Certificates) 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 Im, Class IIm,
Class IIIm, Class OO, Class LL and Class MM interests and the Class XP
Certificates (together, the "REMIC I Regular Interests"), which (i) (other than
Class XP Certificates) 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 (other than the Class
XP Certificates) shall be recorded on the records of REMIC I as being issued to
and held by the Trustee on behalf of REMIC II.
1% of the principal payments on the Mortgage Loans in Loan
Group I will be paid to (and 1% of the Realized Losses on the Mortgage Loans in
Loan Group I will be allocated to ) Class Im; 1% of the principal payments on
the Mortgage Loans in Loan Group II will be paid to (and 1% of the Realized
Losses on the Mortgage Loans in Loan Group I and Loan Group II will be allocated
to ) Class IIm; and 1% of the principal payments on the Mortgage Loans in Loan
Group III will be paid to (and 1% of the Realized Losses on the Mortgage Loans
in Loan Group III will be allocated to ) Class IIIm. 99% of the principal
payments on the Mortgage Loan in Loan Group I and Loan Group II will be paid to
(and 99% of the Realized Losses on the Mortgage Loans in Loan Group I and Loan
Group II will be allocated to) Class MM, until paid in full and then to Class
OO. 99% of the principal payments on the Mortgage Loans in Loan Group III will
be paid to (and 99% of the Realized Losses on the Mortgage Loans in Loan Group
III will be allocated to) Class LL. Notwithstanding the above, the principal on
the Class XP will be paid only as provided in Section 4.04.
The REMIC I Certificates will have the following designations,
initial principal balances and pass-through rates:
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Pass-
REMIC I Initial Principal Through
Certificates Balance Rate
------------ ------- ----
Im $ 1,421,753.72 (1)
IIm $ 969,053.50 (2)
IIIm $ 533,378.65 (3)
LL $ 52,804,486.44 (3)
MM $212,781,915.06 (5)
OO $ 23,908,000.00 (5)
XP $ 100.00 (4)
R-1 $ 0.00 0%(6)
(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 in Loan Group I as of the last
day of the related Due Period.
(2) 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 in Loan Group II as of the last
day of the related Due Period.
(3) 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 in Loan Group III as of the last
day of the related Due Period.
(4) The Class XP Certificates shall be entitled to receive all Prepayment
Charges collected with respect to the Mortgage Loans in each Loan
Group. Such Prepayment Charges shall not be available for distribution
with respect to any other Class of REMIC I Certificates. The
Prepayment Charges received by the Class XP Certificates shall not be
applied to the Certificate Principal Balance of those Certificates.
(5) 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 in Loan Groups I and II as of the
last day of the related Due Period.
(6) 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. It is expected that there
will not be any distributions on the Class R-1 Certificate.
(c) REMIC II will be evidenced by (x) the Class a-IO, Class
1m, Class 2m,
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Class 3m, Class AF-1m, Class AF-2m, Class AF-3m, Class AF-4m, Class AV-1m, Class
M-1m, Class M-2m, Class B-1m and Class QQ interests (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 QQ REMIC II Regular Interest which equals 1% of the
Turbo Amount (and, to the extent 1% of the Turbo Amount exceeds the interest
payable on the Class QQ REMIC II Regular Interest, a pro rata portion of the
interest payable on the Class 1m, Class 2m and Class 3m REMIC II Regular
Interests equal to such excess) will be payable as a reduction of the principal
balances of the Class AF-1m, Class AF-2m, Class AF-3m, Class AF-4m, Class AV-1m,
Class M-1m, Class M-2m and Class B-1m REMIC II Regular Interests in the same
manner in which the Turbo Amount is allocated among the Class AF-1, Class AF-2,
Class AF-3, Class AF-4, Class AV-1, Class M-1, Class M-2 and Class B
Certificates, respectively (and will be accrued and added to principal on the
Class QQ, Class 1m, Class 2m and Class 3m REMIC II Regular Interests in the same
proportion as interest payable on such REMIC II Regular Interests is used to
reduce principal on other REMIC II Regular Interests as just described).
Principal payments on the REMIC I Regular Interests held by
REMIC II shall be allocated 99% to the Class QQ, Class 1m, Class 2m and Class 3m
REMIC II Regular Interests, and 1% to the Class AF-1m, Class AF-2m, Class AF-3m,
Class AF-4m, Class AV-1m, Class M-1m, Class M-2m and Class B-1m REMIC II Regular
Interests, until paid in full. The aggregate amount of principal allocated to
the Class AF-1m, Class AF-2m, Class AF-3m, Class AF-4m, Class AV-1m, Class M-1m,
Class M-2m and Class B-1m REMIC II Regular Interests shall be apportioned among
such classes in the same manner as principal is payable with respect to the
Class AF-1, Class AF-2, Class AF-3, Class AF-4, Class AV-1, Class M-1, Class M-2
and Class B Certificates, respectively . The aggregate amount of principal
allocated to the Class QQ, Class 1m, Class 2m and Class 3m REMIC II Regular
Interests shall be allocated and apportioned among such REMIC II Regular
Interests first, to the Class 1m, Class 2m and Class 3m REMIC II Regular
Interests the least amount of principal necessary which can be applied to such
REMIC II Regular Interests so that the ratio of the principal balance of the
Class 1m, Class 2m and Class 3m REMIC II Regular Interests to each other equals
the respective ratios of the the principal balances of the Mortgage Loans in
Loan Group I, Loan Group II and Loan Group III to each other (the "Balance
Ratio"), and second, to the Class QQ REMIC II Regular Interests. Notwithstanding
the above, principal payments on REMIC I Regular Interests that are attributable
to the Excess Overcollateralization Amount shall be allocated to the Class QQ,
Class 1m, Class 2m and Class 3m REMIC II Regular Interests (allocated first to
the Class QQ REMIC II Regular Interests until paid in full, and second to the
Class 1m, Class 2m and Class 3m REMIC II Regular Interests, apportioned among
such Interests such that the Balance Ratio is maintained, until paid in full).
The REMIC II Certificates will have the following designations
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and pass-through rates, and distributions of principal and interest thereon
shall be allocated to the Certificates in the following manner:
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Pass- Allocation
REMIC II Initial Principal Through of
Certificates Balance Rate Interest
------------ ------- ---- --------
1m $ 142,175.37 (1) (3),(4)
2m $ 96,905.35 (1) (3),(4)
3m $ 53,337.87 (1) (3),(4)
AF-1m $ 1,094,750.00 (2) (3),(4)
AF-2m $ 377,760.00 (2) (3),(4)
AF-3m $ 171,090.00 (2) (3),(4)
AF-4m $ 197,490.00 (2) (3),(4)
AV-1m $ 410,700.00 (2) (3),(4)
M-1m $ 204,690.00 (2) (3),(4)
M-2m $ 175,450.00 (2) (3),(4)
B-1m $ 157,910.00 (2) (3),(4)
QQ $283,336,328.78 (2) (3),(4)
a-IO $ 23,908,000.00* (6) A-IO
R-2 $ 0.00(5) 0%(5) ---
---------------
* Notional
(1) For the first 30 Distribution Dates, the pass-through rate on the Class
1m and Class 2m Certificates will equal the weighted average rate on
the Class MM and Class OO Certificates, after first subtracting 8% from
the pass-through rates of the Class OO Certificates for the first 30
Distribution Dates (or, if less, the amount of interest paid on the
Class OO Certificates for such Distribution Date, expressed as a per
annum interest rate). Thereafter (and in the case of the Class 3m
Certificates, on all Distribution Dates), the pass-through rates of the
Class 1m, Class 2m and Class 3m Certificates shall equal the
pass-through rates on the Class Im, Class IIm and Class IIIm
Certificates, respectively.
(2) 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 MM, Class LL and Class OO Certificates after first
subtracting 8% from the pass-through rates of the Class OO Certificates
for the first 30 Distribution Dates (or, if less, the amount of
interest paid on the Class OO Certificates for such Distribution Date,
expressed as a per annum interest rate).
(3) Except as provided in note (4) below, interest will be allocated among
the Class AF-1, Class AF-2, Class AF-3, Class AF-4, Class M-1, Class
M-2, Class B and Class AV-1 Certificates in the same proportion as
interest is payable on such Certificates.
(4) Any interest with respect to this REMIC II Regular Interest -- in
excess of the product of (i) 100 times the weighted average coupon of
the Class 1m, Class 2m, Class3m, Class
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AF-1m, Class AF-2m, Class AF-3m, Class AF-4m, Class AV-1m, Class M-1m,
Class M-2m, Class B-1m, and Class QQ REMIC II Regular Interests, where
each of such classes, other than the Class 1m, Class 2m, Class 3m, and
Class QQ REMIC II Regular Interests, is first subject to a cap and
floor equal to the Pass-Through Rates of the Class AF-1, Class AF-2,
Class AF-3, Class AF-4, Class AV-1, Class M-1, Class M-2 and Class B
Certificates, respectively, and the Class 1m, Class 2m, Class 3m and
Class QQ REMIC II Regular Interests are each 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 4.04.
(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. It is expected that there
will not be any distributions on the Class R-2 Certificate.
(6) The Class a-IO REMIC II Regular Interests shall for the first 30
Distribution Dates be entitled to a specified portion of interest equal
to the lesser of 8% and the interest on the Class OO Certificates, and
shall be entitled to no interest thereafter.
(d) The Class AF-1, Class AF-2, Class AF-3, Class AF-4, Class
AV-1, 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. It is expected that there will not be any distributions on the
Class R-3 Certificate. The terms of the REMIC III Regular Interests are set out
in Section 5.01, except that the notional balance of the Class B-IO Certificate
shall equal $13,450,587.37 (the Initial Overcollateralization Amount).
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ARTICLE V.
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms attached
hereto as Exhibits A-1 through A-15. 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
----------------- ---------------------- ----------------------- ---------------------- ------------------
AF-1 $25,000 $1,000 $109,475,000 7.47%(1)(2)
AF-2 $25,000 $1,000 $37,760,000 Adjustable(3)
AF-3 $25,000 $1,000 $17,109,000 7.34%(1)
AF-4 $25,000 $1,000 $19,749,000 7.81%(1)
A-IO $25,000 $1,000 $23,908,000* 8.00%(4)
AV-1 $25,000 $1,000 $41,070,000 Adjustable(5)
M-1 $25,000 $1,000 $20,469,000 8.04%(1)(6)
M-2 $25,000 $1,000 $17,545,000 8.28%(1)(6)
B $25,000 $1,000 $15,791,000 9.00%(1)(6)
XP $100 N/A $100 N/A
B-IO 10% 1% X/X X/X
X 000% X/X X/X X/X
X-0 (7) 100% N/A N/A N/A
R-2 (7) 100% N/A N/A N/A
R-3 (7) 100% N/A N/A N/A
--------------
* Notional
(1) On any Distribution Date after the Optional Termination Date, the
Pass-Through Rate will increase by 0.50% per annum.
(2) Subject to the Class AF-1 Rate Cap.
(3) For the first Distribution Date, 6.76625% per annum. As of any Distribution
Date thereafter, the lesser of (i) One-Month LIBOR plus 0.15% per annum and
(ii) the Class AF-2 Rate Cap for such Distribution Date.
(4) Subject to the Class A-IO Net Rate Cap.
(5) For the first Distribution Date, 6.86625% per annum. As of any Distribution
Date thereafter, the lesser of (i) One-Month LIBOR plus (a) as of any
Distribution Date on or prior to the Optional Termination Date, 0.25% per
annum and (b) as of any Distribution Date after such Optional Termination
Date, 0.50% per annum and (ii) the Class AV-1 Rate Cap for such
Distribution Date.
(6) Subject to the Subordinated Certificates Rate Cap.
(7) To be issued upon the exchange of the Class R Certificate.
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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 a
certificate of authentication substantially in the form set forth in Exhibits
A-1 through A-15 attached hereto executed by the Trustee by manual signature,
and such certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. 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 5.02. 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 5.09 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 XP, Class B-IO or Residual
Certificate shall be made unless such Transfer is made pursuant to an effective
registration statement under the Securities Act
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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 XP, Class B-IO or Residual
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 XP, Class B-IO or Residual
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 shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee, 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, or a Person acting on behalf of any such plan or using
the assets of any such plan, or (ii) in the case of any such ERISA Restricted
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan, 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 this Agreement, which Opinion of Counsel shall not
be an expense of the Trustee or the Master Servicer. For purposes of clause (i)
of the preceding sentence, such representation shall be deemed to have been made
to the Trustee by the transferee's acceptance of an ERISA Restricted Certificate
(or the acceptance by a Certificate Owner of the beneficial interest in any such
Class of ERISA Restricted Certificates) unless the Trustee shall have received
from the transferee an alternative representation acceptable in form and
substance to the Master Servicer and the Depositor. Notwithstanding anything
else to the contrary herein, any purported transfer of an ERISA Restricted
Certificate to or on behalf of an employee benefit plan subject to Section 406
of ERISA and/or a plan subject to Section 4975 of the Code without the delivery
to the Trustee and the Master Servicer of an Opinion of Counsel satisfactory to
the Trustee and the Master Servicer as described above shall be void and of no
effect; provided that the restriction set forth in this sentence shall not be
applicable if there has
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been delivered to the Trustee and the Master Servicer an Opinion of Counsel
meeting the requirements of clause (ii) of the first sentence of this paragraph.
The Trustee shall not 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 the Trustee shall have no
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. The Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA Restricted Certificate that is in fact not
permitted by this Section 5.02(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 so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements. The
Trustee shall be entitled, but not obligated, to recover from any Holder of any
ERISA Restricted Certificate that was in fact an employee benefit plan subject
to Section 406 of ERISA or a plan subject to Section 4975 of the Code or a
Person acting on behalf of any such plan at the time it became a Holder or, at
such subsequent time as it became such a plan or Person acting on behalf of such
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 such 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 (which for purposes of this Section 5.02 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 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
I.
(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 5.02(c) shall be absolutely null and
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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 5.02(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 5.02(b) and this Section
5.02(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 5.02(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 5.02 shall not be an expense of the
Trust Fund, the Trustee, the Depositor, the Seller or the Master Servicer.
Section 5.03. 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
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issuance of any new Certificate under this Section 5.03, 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 5.03 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 5.03 shall be canceled and destroyed by the Trustee in accordance with
its standard procedures without liability on its part.
Section 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master
Servicer or 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 Master Servicer, the Trustee nor any agent of the
Master Servicer or the Trustee shall be affected by any notice to the contrary.
Section 5.05. 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 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 5.06. Book-Entry Certificates.
The Regular Certificates (other than the Class XP and 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 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 5.08. Unless and until
definitive, fully registered Certificates ("Definitive Certificates") have been
issued to the Certificate Owners of such Certificates pursuant to Section 5.08:
(a) the provisions of this Section shall be in full force and
effect;
(b) the Depositor, the Master Servicer 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;
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(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 5.08, 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 5.07. Notices to Depository.
Whenever any notice or other communication is required to be
given to Certificateholders of the 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 5.08. 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
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and of the availability of Definitive Certificates to Certificate Owners of such
Class 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 authenticate 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 5.09. 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 in New York City or at the
Corporate Trust Office 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.
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ARTICLE VI.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER
Section 6.01. 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 6.02. 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 6.03. 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
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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 Certificate
Account as provided by Section 3.08 hereof.
Section 6.04. 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 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 6.05. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall, for so long as it acts as servicer under
this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
servicer hereunder, 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.
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ARTICLE VII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment required to be made under the
terms of this Agreement, which failure shall continue unremedied for five
calendar days and, with respect to a payment required to be made under
Section 4.01 hereof, for one calendar day, 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 or, so long as the Master
Servicer is also the Seller, the Seller to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Master Servicer or so long as the Master Servicer is also the Seller,
of the Seller contained in this Agreement or any representation or warranty
shall prove to be untrue, 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
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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 Master
Servicer appointed pursuant to Section 7.02). The Trustee or such successor
Master Servicer shall thereupon make any Advance described in Section 4.01
hereof subject, in the case of the Trustee, to Section 3.04 hereof. The Trustee
is hereby authorized and empowered to execute and deliver, on behalf of the
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 the 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 VIII. 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 Trustee of all cash amounts which shall at the time be credited
to the Certificate Account, or thereafter be received with respect to the
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 a Master Servicer
hereunder, such 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 such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
such Master Servicer would have been entitled pursuant to Sections 3.08(a)(i)
through (viii), and any other amounts payable to such Master Servicer hereunder
the entitlement to which arose prior to the termination of its activities
hereunder.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 hereof, the Trustee shall, to the extent
provided in Section 3.04, be the successor to the Master Servicer in its
capacity as servicer under this Agreement and 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 the obligation to make advances pursuant to Section 4.01. 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 the Master Servicer had continued to act hereunder.
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 4.01 hereof 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 that is willing to service the Mortgage Loans and
executes and delivers 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
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and liabilities of the Master Servicer (other than liabilities of the Master
Servicer under Section 6.03 hereof incurred prior to termination of the Master
Servicer under Section 7.01), with like effect as if originally named as a party
to this Agreement; and provided further that each Rating Agency acknowledges
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 7.02,
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 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 the 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
Mortgage Loans properly and effectively, to the extent not paid by the
terminated Master Servicer, shall be payable to the Trustee pursuant to Section
8.05.
Any successor to the Master Servicer as servicer shall give notice to
the Mortgagors of such change of servicer and shall, during the term of its
service as servicer maintain in force the policy or policies that the Master
Servicer is required to maintain pursuant to Section 6.05.
Section 7.03. 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.
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ARTICLE VIII.
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however, that the Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished to it
hereunder. If any such instrument is found not to conform to the requirements of
this Agreement in a material manner, the Trustee shall take action as it deems
appropriate to have the instrument corrected.
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 misconduct, its negligent failure to perform its obligations
in compliance with this Agreement, or any liability that would be imposed by
reason of its willful misfeasance or bad faith; provided that:
(i) prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default that may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable, individually
or as Trustee, except for the performance of such duties and obligations as
are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and 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 that it reasonably believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the Trustee shall not be liable, individually or as Trustee, for
an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless the Trustee was negligent or
acted in bad faith or with willful misfeasance;
(iii) the Trustee shall not be liable, individually or as Trustee,
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of each Class of
Certificates evidencing not less than 25% of the Voting Rights of such
Class relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Agreement; and
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(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's corporate trust department 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.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) the Trustee shall not be liable, individually or as Trustee, 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;
(iv) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of each
Class of Certificates evidencing not less than 25% of the Voting Rights of
such Class;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys provided, however, that the Trustee may not
appoint any agent to perform its custodial or paying agent functions under
this Agreement without the express written consent of the Master Servicer,
which consent will not be unreasonably withheld. The Trustee shall not be
liable or responsible for the actions or omissions to act 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;
(vi) the Trustee shall not be required to expend its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is not
assured to it;
(vii) the Trustee shall not be liable, individually or as Trustee, for
any loss on any investment of funds pursuant to this Agreement (other than
as issuer of the investment security);
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(viii) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have received
written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder 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 that 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's corporate trust department has actual knowledge (which has not
been cured), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise,
as a prudent person would exercise under the circumstances in the conduct
of his own affairs;
(x) Should the Trustee deem the nature of any action required on its
part, other than a payment or transfer under Subsection 3.05(c) or Section
3.08(b), to be unclear, the Trustee may require prior to such action that
it be provided by the Master Servicer with reasonable further instructions;
(xi) 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;
(xii) 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; and
(xiii) The Trustee shall have no duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the
repurchase of any Mortgage Loan by the Seller pursuant to this Agreement or
the eligibility of any Mortgage Loan for purposes of this Agreement.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by the Trustee without
the possession of any of the Certificates, or the production thereof at the
trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of the Certificates, subject to the provisions of
this Agreement.
Section 8.03. Trustee Not Liable for Mortgage Loans.
The recitals contained herein shall be taken as the statements of the
Depositor, the Seller or the Master Servicer, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of any
Mortgage Loan or related document other than with respect to the Trustee's
execution and authentication of the Certificates. The Trustee shall not be
accountable for the use or application by the Depositor or the Master Servicer
of any funds paid to the Depositor or the Master Servicer in
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respect of the Mortgage Loans or deposited in or withdrawn from the Certificate
Account by the Depositor or the Master Servicer.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
Section 8.05. Trustee's Fees and Expenses.
The Trustee shall be entitled to the Trustee Fee as compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee. The Trustee shall also be entitled
to its reasonable expenses, disbursements and advances incurred or made by the
Trustee on behalf of the Trust Fund in accordance with any of the provisions of
this Agreement, other than such expenses, disbursements and advances incurred in
the ordinary course of the exercise and performance of the Trustee's powers and
duties hereunder, and except any such expense, disbursement or advance as may
arise from its negligence, bad faith or willful misconduct. The Trustee and any
director, officer, employee or agent of the Trustee shall be indemnified by the
Trust Fund and held harmless against any loss, liability or expense (i) incurred
in connection with any legal action relating to this Agreement or the
Certificates, or in connection with the performance of any of the Trustee's
duties hereunder, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder or by reason of reckless disregard of the Trustee's
obligations and duties hereunder, (ii) resulting from any error in any tax or
information return prepared by the Master Servicer or (iii) incurred by the
Trustee in connection with a violation with respect to any Mortgage Loan of the
Home Ownership and Equity Protection Act of 1994, as amended. Such indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee hereunder. Amounts payable to the Trustee under this Section or
Section 7.02 shall be paid from the Distribution Account pursuant to Section
3.08(b).
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall, at all times, be a corporation or
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 of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating that would not cause any of the Rating Agencies to reduce their
respective ratings of any Class of Certificates below the ratings issued on the
Closing Date (or having provided such security from time to time as is
sufficient to avoid such reduction). If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07 hereof. The corporation or
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national banking association serving as Trustee may have normal banking and
trust relationships with the Depositor, the Seller and the Master Servicer and
their respective affiliates; provided that such corporation cannot be an
affiliate of the Master Servicer other than the Trustee in its role as successor
to the Master Servicer.
Section 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (1) giving written notice of resignation to the Depositor and
the Master Servicer and by mailing notice of resignation by first class mail,
postage prepaid, to the Certificateholders at their addresses appearing on the
Certificate Register and each Rating Agency, not less than 60 days before the
date specified in such notice when, subject to Section 8.08, such resignation is
to take effect, and (2) acceptance of appointment by a successor trustee in
accordance with Section 8.08 and meeting the qualifications set forth in Section
8.06. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice or 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 8.06 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 triplicate, one copy of which instrument shall be delivered to
the Trustee, one copy of which shall be delivered to the Master Servicer and one
copy of which shall be delivered to 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 triplicate, 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 the Master Servicer
one complete set to the Trustee so removed and one complete set to the successor
so appointed. Notice of any removal of the Trustee shall be given to each Rating
Agency by the Successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.08 hereof.
Section 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an
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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 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 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 8.08, 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 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to substantially all of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section 8.06 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 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust 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 8.10, 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 8.06 and
no notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
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(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 to the 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 VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
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 8.11. 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 and that in such
capacity it shall: (a) 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
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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 will 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) 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) 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) provide information necessary for the computation of tax imposed
on the transfer of a Class R 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) to the extent that they are 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) 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) pay, from the sources specified in the
last paragraph of this Section 8.11, 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) sign or cause to be signed federal, state or local income tax
or information returns; (j) 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, 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
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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) (x) the Master
Servicer, in the case of any such minimum tax, and (y) 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 Senior 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 Certificate (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 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.
Section 8.12. Periodic Filings.
Within 15 days after each Distribution Date, the Trustee shall, in
accordance with industry standards, file with the Securities and Exchange
Commission via the Electronic Data Gathering and Retrieval System (XXXXX), a
Form 8-K with a copy of the statement to the Certificateholders for such
Distribution Date as an exhibit thereto. Prior to January 31, 2001, the Trustee
shall, in accordance with industry standards and only if so instructed by the
Depositor, file a Form 15 Suspension Notification with respect to the Trust
Fund, if applicable. Prior to March 30 of each year in which such reporting
shall be required with respect to the Trust Fund, beginning in 2001, the Trustee
shall file a Form 10-K, in substance conforming to industry standards, with
respect to the Trust Fund. The Depositor hereby grants to the Trustee a limited
power of attorney to execute and file each such document on behalf of the
Depositor. Such power of attorney shall continue until either the earlier of (i)
receipt by the Trustee from the Depositor of written termination of such
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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 Securities and
Exchange Commission. The Trustee shall have no responsibility to file any items
other than those specified in this section, provided 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 shall not be reimbursable from the Trust Fund.
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ARTICLE IX.
TERMINATION
Section 9.01. Termination upon Liquidation or Repurchase of all
Mortgage Loans.
Subject to Section 9.03, 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 Net 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 prior to the exercise
of such repurchase right, any accrued and unpaid Trustee Fees and any
unreimbursed costs and expenses of the Trustee payable pursuant to Section 8.05
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 9.02. 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 Certificate Account, 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 9.01, at least 20 days prior to the
date notice is to be mailed to the affected Certificateholders, the Master
Servicer shall notify the Depositor and the Trustee of the date the Master
Servicer intends to terminate the Trust Fund and of the applicable repurchase
price of the Mortgage Loans and REO Properties.
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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, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and no later than the 15th day of the month immediately preceding the month
of such final distribution. Any such notice 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 Master Servicer 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 the Certificate 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 the Mortgage Files for the Mortgage
Loans.
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 4.04 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 9.03. Additional Termination Requirements.
(a) Upon exercise by the Master Servicer of its purchase option as
provided in Section 9.01, 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
9.03 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:
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(1) The Master Servicer shall establish a 90-day liquidation period and
notify the Trustee thereof, which 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
9.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Master Servicer.
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ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Seller and the Trustee, 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 Certificate 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 Trustee, the Depositor, the Master Servicer and the
Seller 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 have been provided an Opinion of Counsel, which opinion shall be an
expense of the party requesting such opinion 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 Depositor,
the Master Servicer, the Seller and the Trustee and the Holders of each Class of
Certificates affected thereby evidencing not less than 51% of the Voting Rights
of such Class 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) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in (i), without the consent of the Holders of Certificates of such
Class evidencing 66% or more of the Voting Rights of such Class 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
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shall not be an expense of the Trustee, to the effect that such amendment will
not 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 have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
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 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Master Servicer at its expense.
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 10.03. 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 10.04. 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,
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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. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for the
benefit of the Certificateholders.
Section 10.05. 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, 2.04 and 3.12; 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 4.04;
(ii) Each annual statement as to compliance described in Section 3.17;
and
(iii) Each annual independent public accountants' servicing report
described in Section 3.18.
-102-
(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 and 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 Depositor and the Trustee by the Master Servicer
in writing; (iv) in the case of the Trustee, at each Corporate Trust Office or
such other address as the Trustee may hereafter furnish to the Depositor or the
Master Servicer; (v) as it relates to the Mortgage Files, to the Trustee at
Xxxxx Fargo Bank Minnesota, National Association, 0000 00xx Xxxxxx X.X.,
Xxxxxxxxxxx, XX 00000-0000, Attention: Inventory Control and (vi) 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 10.06. 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 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Section 6.02, this Agreement may not be assigned by the
Master Servicer, the Seller or the Depositor.
Section 10.08. 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
-103-
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 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09. Inspection and Audit Rights.
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 10.09 shall be borne by the party requesting
such inspection; all other such expenses shall be borne by the Master Servicer.
Section 10.10. 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.
* * *
-104-
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/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Authorized Agent
EMC MORTGAGE CORPORATION,
as Seller and Master Servicer
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: President
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
-105-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of November, 2000, before me, a notary public in and
for said State, appeared Xxxxxxxx Xxxxxxxxx, 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 Xxxxxxx
-------------------
Notary Public
[Notarial Seal]
-106-
STATE OF MARYLAND )
) ss.:
COUNTY OF BALTIMORE )
On this 30th day of November, 2000, before me, a notary public in and
for said State, appeared Xxxxx X. Xxxxxxxxx, personally known to me on the basis
of satisfactory evidence to be a Vice President of Xxxxx Fargo Bank Minnesota,
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/ Xxxxxx X. Xxxxxx
---------------------
Notary Public
[Notarial Seal]
-107-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of November, 2000, before me, a notary public in and
for said State, appeared Xxxxxx 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 Xxxxxxx
-------------------
Notary Public
[Notarial Seal]
-108-
Exhibit A-1
FORM OF CLASS AF-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").
A-1-1
Certificate No. : AF-1-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Principal
Balance of
this Certificate
("Denomination") : $109,475,000
Initial Certificate
Principal Balance of
Class AF-1
Certificates : $109,475,000
Latest Possible
Maturity Date : August 25, 2030
CUSIP : 07383G BF2
Interest Rate : 7.47% (subject to increase to 7.97% after the
Optional Termination Date and subject to the Class
AF-1 Rate Cap)
A-1-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class AF-1 Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional, sub-prime mortgage loans (the
"Mortgage Loans") secured by first and second liens on one- to
four-family residential properties.
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of the Class
AF-1 Certificates at any time may be less than the Certificate Principal Balance
of the Class AF-1 Certificates as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class AF-1
Certificates) 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, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class AF-1
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the 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 and such Certificateholder shall hold a Percentage
Interest aggregating 10% or more of a Class of Regular Certificates or of
Certificates with an
A-1-3
aggregate Initial Certificate Principal Balance of $1,000,000 or more, 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 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.
* * *
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By:
----------------------
Authorized Signatory
A-1-5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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.
As provided in the Agreement, the Pass-Through Rate of the Class AF-1
Certificates is subject to the Class AF-1 Rate Cap. On any Distribution Date
after the Optional Termination Date, the Pass-Through Rate of the Class AF-1
Certificates will increase by 0.50% per annum.
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.
A-1-6
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-1-7
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
A-1-8
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.
X-0-0
Xxxxxxx X-0
FORM CLASS AF-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").
A-2-1
Certificate No. : AF-2-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Principal
Balance of
this Certificate
("Denomination") : $37,760,000
Initial Certificate
Principal Balance of
Class AF-2
Certificates : $37,760,000
Latest Possible
Maturity Date : August 25, 2030
CUSIP : 07383G BG0
Interest Rate : Adjustable (for the first Distribution Date
6.76625% per annum; thereafter, the lesser of (i)
one-month LIBOR plus 0.15% per annum and (ii)
the Class AF-2 Rate Cap)
A-2-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class AF-2 Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional, sub-prime mortgage loans (the
"Mortgage Loans") secured by first and second liens on one- to
four-family residential properties.
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of the Class
AF-2 Certificates at any time may be less than the Certificate Principal Balance
of the Class AF-2 Certificates as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class AF-2
Certificates) 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, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class AF-2
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the 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 and such Certificateholder shall hold a Percentage
Interest aggregating 10% or more of a Class of Regular Certificates or of
Certificates with an
A-2-3
aggregate Initial Certificate Principal Balance of $1,000,000 or more, 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 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.
* * *
A-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By:
----------------------
Authorized Signatory
A-2-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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.
As provided in the Agreement, the Pass-Through Rate of the Class AF-2
Certificates is equal to LIBOR (as determined pursuant to the Agreement) plus a
margin of 0.15% and is subject to the Class AF-2 Rate Cap.
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.
A-2-6
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-2-7
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
A-2-8
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.
X-0-0
Xxxxxxx X-0
FORM OF CLASS AF-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").
A-3-1
Certificate No. : AF-3-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Principal
Balance of
this Certificate
("Denomination") : $17,109,000
Initial Certificate
Principal Balance of
Class AF-3
Certificates : $17,109,000
Latest Possible
Maturity Date : August 25, 2030
CUSIP : 07383G BH8
Interest Rate : 7.34% (subject to increase to 7.84%
after the Optional Termination Date)
A-3-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class AF-3 Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional, sub-prime mortgage loans (the
"Mortgage Loans") secured by first and second liens on one- to
four-family residential properties.
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of the Class
AF-3 Certificates at any time may be less than the Certificate Principal Balance
of the Class AF-3 Certificates as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class AF-3
Certificates) 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, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class AF-3
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the 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 and such Certificateholder shall hold a Percentage
Interest aggregating 10% or more of a Class of Regular Certificates or of
Certificates with an
A-3-3
aggregate Initial Certificate Principal Balance of $1,000,000 or more, 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 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.
* * *
A-3-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By: ______________________
Authorized Signatory
A-3-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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.
On any Distribution Date after the Optional Termination Date, the
Pass-Through Rate of the Class AF-3 Certificates will increase by 0.50% per
annum.
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 or the
A-3-6
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 in a Loan
Group described in clause (a) above shall be conditioned upon the aggregate
Stated Principal Balance of the Mortgage Loans in such Loan Group, at the time
of any such repurchase, aggregating ten percent or less of the aggregate Cut-off
Date Principal Balance of the Mortgage Loans in such Loan Group.
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.
A-3-7
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
A-3-8
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.
X-0-0
Xxxxxxx X-0
FORM OF CLASS AF-4 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").
A-4-1
Certificate No. : AF-4-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Principal
Balance of
this Certificate
("Denomination") : $19,749,000
Initial Certificate
Principal Balance of
Class AF-4
Certificates : $19,749,000
Latest Possible
Maturity Date : August 25, 2030
CUSIP : 07383G BJ4
Interest Rate : 7.81% (subject to increase to 8.31%
after the Optional Termination Date)
A-4-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class AF-4 Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional, sub-prime mortgage loans (the
"Mortgage Loans") secured by first and second liens on one- to
four-family residential properties.
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of the Class
AF-4 Certificates at any time may be less than the Certificate Principal Balance
of the Class AF-4 Certificates as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class AF-4
Certificates) 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, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class AF-4
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the 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 and such Certificateholder shall hold a Percentage
Interest aggregating 10% or more of a Class of Regular Certificates or of
Certificates with an
A-4-3
aggregate Initial Certificate Principal Balance of $1,000,000 or more, 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 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.
* * *
A-4-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By: ______________________
Authorized Signatory
A-4-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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.
On any Distribution Date after the Optional Termination Date, the
Pass-Through Rate of the Class AF-4 Certificates will increase by 0.50% per
annum.
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 or the
A-4-6
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-4-7
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
A-4-8
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.
X-0-0
Xxxxxxx X-0
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.
A-5-1
Certificate No. : A-IO-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Notional Principal
Balance of
this Certificate
("Denomination") : $23,908,000
Initial Notional
Principal Balance of
Class A-IO
Certificates : $23,908,000
Latest Possible
Maturity Date : May 25, 2003
CUSIP : 07383G BK1
Interest Rate : 8.00% (subject to the Class A-IO Net Rate Cap)
A-5-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class A-IO Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional, sub-prime mortgage loans (the
"Mortgage Loans") secured by first and second liens on one- to
four-family residential properties.
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
The Class A-IO Certificates are an interest only class. They do not
have a principal balance and interest accrues on the Certificate Notional
Balance. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-IO
Certificates) 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, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class A-IO
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the 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 and such Certificateholder shall hold a Percentage
Interest aggregating 10% or more of a Class of Regular Certificates or of
Certificates with an aggregate Initial Certificate Principal Balance of
$1,000,000 or more, or, if not, by check mailed
A-5-3
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 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.
* * *
A-5-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By:
----------------------
Authorized Signatory
A-5-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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.
As provided in the Agreement, the Pass-Through Rate of the Class A-IO
Certificates is subject to the Class A-IO Net Rate Cap.
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 or the
A-5-6
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-5-7
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
A-5-8
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.
X-0-0
Xxxxxxx X-0
FORM OF CLASS AV-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").
A-6-1
Certificate No. : AV-1-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Principal
Balance of
this Certificate
("Denomination") : $41,070,000
Initial Certificate
Principal Balance of
Class AV-1
Certificates : $41,070,000
Latest Possible
Maturity Date : August 25, 2030
CUSIP : 07383G BL9
Interest Rate : Adjustable (for the first Distribution Date,
6.86625% per annum. As of any Distribution Date
thereafter, the lesser of (i) one-month LIBOR plus (a) as
of any Distribution Date on or prior to the
Optional Termination Date, 0.25% per annum and (b) as
of any Distribution Date after such Optional
Termination Date, 0.50% per annum and (ii) the Class
AV-1 Rate Cap for such Distribution Date.)
A-6-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class AV-1 Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional, sub-prime mortgage loans (the
"Mortgage Loans") secured by first and second liens on one- to
four-family residential properties.
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of the Class
AV-1 Certificates at any time may be less than the Certificate Principal Balance
of the Class AV-1 Certificates as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class AV-1
Certificates) 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, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class AV-1
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the 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 and such Certificateholder shall hold a Percentage
A-6-3
Interest aggregating 10% or more of a Class of Regular Certificates or of
Certificates with an aggregate Initial Certificate Principal Balance of
$1,000,000 or more, 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
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.
* * *
A-6-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual
capacity, but solely
as Trustee
By:
-----------------------
Authorized Signatory
A-6-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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.
As provided in the Agreement, the Pass-Through Rate of the Class AV-1
Certificates is equal to the lesser of (i) one-month LIBOR (as determined
pursuant to the Agreement) plus a margin of 0.25% before or on the Optional
Termination Date and 0.50% after the Optional Termination Date and (ii) the
Class AV-1 Rate Cap.
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.
A-6-6
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-6-7
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
A-6-8
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.
X-0-0
Xxxxxxx X-0
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 EITHER A REPRESENTATION THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN. SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE OR BY THE ACCEPTANCE BY A BENEFICIAL
OWNER OF THE BENEFICIAL INTEREST REPRESENTED HEREBY UNLESS THE TRUSTEE SHALL
HAVE RECEIVED FROM THE TRANSFEREE AN ALTERNATIVE REPRESENTATION ACCEPTABLE IN
FORM AND SUBSTANCE TO THE MASTER SERVICER AND THE DEPOSITOR. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT
TO THE CODE WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE
MASTER SERVICER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
A-7-1
Certificate No. : M-1-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Principal
Balance of
this Certificate
("Denomination") : $20,469,000
Initial Certificate
Principal Balance of
Class M-1
Certificates : $20,469,000
Latest Possible
Maturity Date : August 25, 2030
CUSIP : 07383G BM7
Interest Rate : 8.04% (subject to increase to 8.54% after the
Optional Termination Date and subject to the
Subordinated Certificates Rate Cap)
A-7-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class M-1 Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional, sub-prime mortgage loans (the
"Mortgage Loans") secured by first and second liens on one- to
four-family residential properties.
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of the Class
M-1 Certificates at any time may be less than the Certificate Principal Balance
of the Class M-1 Certificates as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class M-1
Certificates) 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, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class M-1
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the 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
A-7-3
Business Days prior to the related Record Date and such Certificateholder shall
hold a Percentage Interest aggregating 10% or more of a Class of Regular
Certificates or of Certificates with an aggregate Initial Certificate Principal
Balance of $1,000,000 or more, 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
or such other location specified in the notice to Certificateholders of such
final distribution.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA and/or Section 4975 of the Code, nor a person
acting on behalf of any such plan or using the assets of any such plan, or (ii)
in the case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA and/or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Master Servicer to the effect that
the purchase or holding of such 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 undertaken
in this Agreement, which Opinion of Counsel shall not be an expense of the
Trustee or the Master Servicer. Such representation shall be deemed to have been
made to the Trustee by the transferee's acceptance of a Certificate of this
Class (or by the acceptance by a beneficial owner of the beneficial interest
represented by this Certificate) unless the Trustee shall have received from the
transferee an alternative representation acceptable in form and substance to the
Master Servicer and the Depositor. Notwithstanding anything else to the contrary
herein, any purported transfer of a Certificate of this Class to or on behalf of
an employee benefit plan subject to Section 406 of ERISA and/or a plan subject
to Section 4975 of the Code without an Opinion of Counsel satisfactory to the
Trustee and the Master Servicer as described above shall be void and of no
effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
A-7-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By:
----------------------
Authorized Signatory
A-7-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed Certificates, Series
2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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.
As provided in the Agreement, the Pass-Through Rate of the Class M-1
Certificates is subject to the Subordinated Certificates Rate Cap. On any
Distribution Date after the Optional Termination Date, the Pass-Through Rate of
the Class M-1 Certificates will increase by 0.50% per annum.
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
A-7-6
payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-7-7
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
A-7-8
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.
X-0-0
Xxxxxxx X-0
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 EITHER A REPRESENTATION THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN. SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE OR BY THE ACCEPTANCE BY A BENEFICIAL
OWNER OF THE BENEFICIAL INTEREST REPRESENTED HEREBY UNLESS THE TRUSTEE SHALL
HAVE RECEIVED FROM THE TRANSFEREE AN ALTERNATIVE REPRESENTATION ACCEPTABLE IN
FORM AND SUBSTANCE TO THE MASTER SERVICER AND THE DEPOSITOR. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT
TO THE CODE WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE
MASTER SERVICER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
A-8-1
Certificate No. : M-2-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Principal
Balance of
this Certificate
("Denomination") : $17,545,000
Initial Certificate
Principal Balance of
Class M-2
Certificates : $17,545,000
Latest Possible
Maturity Date : August 25, 2030
CUSIP : 07383G BN5
Interest Rate : 8.28% (subject to increase to 8.78% after the
Optional Termination Date and subject to the
Subordinated Certificates Rate Cap)
A-8-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class M-2 Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional, sub-prime mortgage loans (the
"Mortgage Loans") secured by first and second liens on one- to
four-family residential properties.
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of the Class
M-2 Certificates at any time may be less than the Certificate Principal Balance
of the Class M-2 Certificates as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class M-2
Certificates) 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, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class M-2
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the 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
A-8-3
Business Days prior to the related Record Date and such Certificateholder shall
hold a Percentage Interest aggregating 10% or more of a Class of Regular
Certificates or of Certificates with an aggregate Initial Certificate Principal
Balance of $1,000,000 or more, 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
or such other location specified in the notice to Certificateholders of such
final distribution.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA and/or Section 4975 of the Code, nor a person
acting on behalf of any such plan or using the assets of any such plan, or (ii)
in the case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA and/or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Master Servicer to the effect that
the purchase or holding of such 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 undertaken
in this Agreement, which Opinion of Counsel shall not be an expense of the
Trustee or the Master Servicer. Such representation shall be deemed to have been
made to the Trustee by the transferee's acceptance of a Certificate of this
Class (or by the acceptance by a beneficial owner of the beneficial interest
represented by this Certificate) unless the Trustee shall have received from the
transferee an alternative representation acceptable in form and substance to the
Master Servicer and the Depositor. Notwithstanding anything else to the contrary
herein, any purported transfer of a Certificate of this Class to or on behalf of
an employee benefit plan subject to Section 406 of ERISA and/or a plan subject
to Section 4975 of the Code without an Opinion of Counsel satisfactory to the
Trustee and the Master Servicer as described above shall be void and of no
effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
A-8-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By:
----------------------
Authorized Signatory
A-8-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed Certificates, Series
2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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.
As provided in the Agreement, the Pass-Through Rate of the Class M-2
Certificates is subject to the Subordinated Certificates Rate Cap. On any
Distribution Date after the Optional Termination Date, the Pass-Through Rate of
the Class M-2 Certificates will increase by 0.50% per annum.
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
A-8-6
payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-8-7
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
A-8-8
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.
X-0-0
Xxxxxxx X-0
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 EITHER A REPRESENTATION THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN. SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE OR BY THE ACCEPTANCE BY A BENEFICIAL
OWNER OF THE BENEFICIAL INTEREST REPRESENTED HEREBY UNLESS THE TRUSTEE SHALL
HAVE RECEIVED FROM THE TRANSFEREE AN ALTERNATIVE REPRESENTATION ACCEPTABLE IN
FORM AND SUBSTANCE TO THE MASTER SERVICER AND THE DEPOSITOR. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT
TO THE CODE WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE
MASTER SERVICER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
A-9-1
Certificate No. : B-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Principal
Balance of
this Certificate
("Denomination") : $15,791,000
Initial Certificate
Principal Balance of
Class B
Certificates : $15,791,000
Latest Possible
Maturity Date : August 25, 2030
CUSIP : 07383G BP0
Interest Rate : 9.00% (subject to increase to 9.50% after the
Optional Termination Date and subject to the
Subordinated Certificates Rate Cap)
A-9-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class B Certificates with respect to a Trust Fund consisting primarily
of a pool of conventional, sub-prime mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties.
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance of the Class B
Certificates at any time may be less than the Certificate Principal Balance of
the Class B Certificates as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Class B Certificates) 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, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class B
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the 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
A-9-3
Business Days prior to the related Record Date and such Certificateholder shall
hold a Percentage Interest aggregating 10% or more of a Class of Regular
Certificates or of Certificates with an aggregate Initial Certificate Principal
Balance of $1,000,000 or more, 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
or such other location specified in the notice to Certificateholders of such
final distribution.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA and/or Section 4975 of the Code, nor a person
acting on behalf of any such plan or using the assets of any such plan, or (ii)
in the case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA and/or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Master Servicer to the effect that
the purchase or holding of such 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 undertaken
in this Agreement, which Opinion of Counsel shall not be an expense of the
Trustee or the Master Servicer. Such representation shall be deemed to have been
made to the Trustee by the transferee's acceptance of a Certificate of this
Class (or by the acceptance by a beneficial owner of the beneficial interest
represented by this Certificate) unless the Trustee shall have received from the
transferee an alternative representation acceptable in form and substance to the
Master Servicer and the Depositor. Notwithstanding anything else to the contrary
herein, any purported transfer of a Certificate of this Class to or on behalf of
an employee benefit plan subject to Section 406 of ERISA and/or a plan subject
to Section 4975 of the Code without an Opinion of Counsel satisfactory to the
Trustee and the Master Servicer as described above shall be void and of no
effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
A-9-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By: ______________________
Authorized Signatory
A-9-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates designated as
Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed Certificates, Series
2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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.
As provided in the Agreement, the Pass-Through Rate of the Class B-1
Certificates is subject to the Subordinated Certificates Rate Cap. On any
Distribution Date after the Optional Termination Date, the Pass-Through Rate of
the Class B-1 Certificates will increase by 0.50% per annum.
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
A-9-6
payable in connection therewith.
The Depositor, the Master Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-9-7
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
A-9-8
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.
A-9-9
Exhibit A-10
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.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT
TO THE CODE WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE
MASTER SERVICER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
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").
A-10-1
Certificate No. : B-IO-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Percentage Interest
evidenced by
this Certificate : 100.0%
Percentage Interest
evidenced by all Class B-IO
Certificates : 100.0%
Latest Possible
Maturity Date : August 25, 2030
CUSIP : N/A
Interest Rate : N/A
A-10-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class B-IO Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional, sub-prime mortgage loans (the
"Mortgage Loans") secured by first and second liens on one- to
four-family residential properties
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that 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, 2000 (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
Xxxxx Fargo Bank Minnesota, 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 does not have a 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 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 the Agreement, as Exhibit J (the "Transferor
Certificate") and (x) deliver a letter in substantially the form of either
Exhibit K (the "Investment Letter") of the Agreement or Exhibit L (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 a Class B-IO Certificate and any prospective
A-10-3
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. 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 a Class B-IO Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA and/or Section 4975 of the Code, nor a person
acting on behalf of any such plan or using the assets of any such plan, or (ii)
in the case of any such Class B-IO Certificate presented for registration in the
name of an employee benefit plan subject to ERISA and/or Section 4975 of the
Code (or comparable provisions of any subsequent enactments), or a trustee of
any such plan or any other person acting on behalf of any such plan, an Opinion
of Counsel satisfactory to the Trustee and the Master Servicer to the effect
that the purchase or holding of such Class B-IO 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 undertaken in this Agreement, which Opinion of Counsel shall not be an
expense of the Trustee or the Master Servicer. Notwithstanding anything else to
the contrary herein, any purported transfer of a Class B-IO Certificate to or on
behalf of an employee benefit plan subject to Section 406 of ERISA and/or a plan
subject to Section 4975 of the Code without an Opinion of Counsel satisfactory
to the Trustee and the Master Servicer as described above shall be void and of
no effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
A-10-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By:
________________________________
Authorized Signatory
A-10-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2000-2, 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 of Certificates affected by such amendment
evidencing not less than 51% of the Voting Rights of such Class. 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 or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
A-10-6
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-10-7
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
A-10-8
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.
A-10-9
Exhibit A-11
FORM OF CLASS XP CERTIFICATE
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
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.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT
TO THE CODE WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE
MASTER SERVICER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
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").
A-11-1
Certificate No. : XP-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Initial Principal
Balance of
this Certificate
("Denomination") : $100.00
Initial Certificate
Principal Balance of
Class XP-1
Certificates : $100.00
Latest Possible
Maturity Date : July 25, 2005
CUSIP : N/A
Interest Rate : N/A
A-11-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class XP Certificates with respect to a Trust Fund consisting primarily
of a pool of conventional, sub-prime mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that 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, 2000 (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
Xxxxx Fargo Bank Minnesota, 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 does not bear interest. In addition to payment of the
principal balance, until such balance has been reduced to zero, it is entitled
to receive on each Distribution Date distributions of its Percentage Interest of
all Prepayment Charges received by the Trust Fund in the immediately preceding
prepayment period.
No Transfer of a Class XP 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 the Agreement, as Exhibit J (the "Transferor
Certificate") and (x) deliver a letter in substantially the form of either
Exhibit K (the "Investment Letter") of the Agreement or Exhibit L (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
A-11-3
Depositor shall provide to any Holder of a Class R 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. 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 R 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.
* * *
A-11-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By:______________________________
Authorized Signatory
A-11-5
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2000-2, 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 a each Class of Certificates affected by such
amendment evidencing not less than 51% of the Voting Rights of such Class. 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 or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
A-11-6
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-11-7
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
A-11-8
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.
A-11-9
Exhibit A-12
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE A
"RESIDUAL INTEREST" IN THREE "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 AND THE RIGHTS REPRESENTED HEREBY ARE SUBORDINATE IN RIGHT OF
PAYMENT TO CERTAIN CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
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.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE
ASSETS OF ANY SUCH PLAN, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT
TO THE CODE WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE
MASTER SERVICER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
A-12-1
Certificate No. : R-1
Cut-off Date : November 1, 2000
First Distribution Date : December 25, 2000
Percentage Interest
evidenced by
this Certificate : 100%
Percentage Interest
evidenced by all Class R
Certificates : 100.0%
Latest Possible
Maturity Date : August 25, 2030
CUSIP : N/A
Interest Rate : N/A
A-12-2
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
evidencing a percentage interest in the distributions allocable to the
Class R Certificates with respect to a Trust Fund consisting primarily
of a pool of conventional, sub-prime mortgage loans (the "Mortgage
Loans") secured by first and second liens on one- to four-family
residential properties
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that 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, 2000 (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
Xxxxx Fargo Bank Minnesota, 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
Certificate at the Corporate Trust Office or an office or agency maintained by
the Trustee in New York, New York.
No Transfer of a Class R 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 the Agreement, as Exhibit J (the "Transferor
Certificate") and (x) deliver a letter in substantially the form of either
Exhibit K (the "Investment Letter") of the Agreement or Exhibit L (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 a Class R Certificate
A-12-3
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. 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 R 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 a Class R Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA and/or Section 4975 of the Code, nor a person
acting on behalf of any such plan or using the assets of any such plan, or (ii)
in the case of any such Class R Certificate presented for registration in the
name of an employee benefit plan subject to ERISA and/or Section 4975 of the
Code (or comparable provisions of any subsequent enactments), or a trustee of
any such plan or any other person acting on behalf of any such plan, an Opinion
of Counsel satisfactory to the Trustee and the Master Servicer to the effect
that the purchase or holding of such Class R Certificate will not result in any
prohibited transactions under provisions of ERISA or Section 4975 of the Code
and will not subject the Trustee or the Master Servicer to any obligation in
addition to those undertaken in this Agreement, which Opinion of Counsel shall
not be an expense of the Trustee or the Master Servicer. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class R
Certificate to or on behalf of an employee benefit plan subject to Section 406
of ERISA and/or a plan subject to Section 4975 of the Code without an Opinion of
Counsel satisfactory to the Trustee and the Master Servicer as described above
shall be void and of no effect.
Each Holder of this Class R Certificate will be deemed to have agreed
to be bound by the restrictions of Section 5.02 of the Agreement, including but
not limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class R Certificate must be a Permitted Transferee,
(ii) no Ownership Interest in this Class R Certificate may be transferred
without delivery to the Trustee of (a) a transfer affidavit of the proposed
transferee and (b) a transfer certificate of the transferor, each of such
documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class R Certificate must
agree to require a transfer affidavit and to deliver a transfer certificate to
the Trustee as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class R Certificate must agree not to
transfer an Ownership Interest in this Class R Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
A-12-4
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.
* * *
A-12-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 30, 2000
XXXXX FARGO BANK MINNESOTA,
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
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely
as Trustee
By:___________________________________
Authorized Signatory
A-12-6
[Reverse of Certificate]
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.
Asset-Backed Certificates, Series 2000-2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2000-2, 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 a each Class of Certificates affected by such
amendment evidencing not less than 51% of the Voting Rights of such Class. 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 or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
A-12-7
Subject to Section 9.03 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 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 Net 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 accrued and unpaid Trustee Fees and unreimbursed
out-of-pocket costs and expenses of the Trustee 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 aggregate Stated Principal
Balance 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.
A-12-8
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
A-12-9
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.
A-12-10
Exhibit A-13
(Please see Exhibit A-12)
A-13-1
Exhibit A-14
(Please see Exhibit A-12)
A-14-1
Exhibit A-15
(Please see Exhibit A-12)
A-15-1
Exhibit B
Mortgage Loan Schedule
(see schedule on file with the Trustee)
B-1-1
EXHIBIT C-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of November 1, 2000 among
Bear Xxxxxxx Asset Backed Securities, Inc., as Depositor, EMC
Mortgage Corporation as Seller and Master Servicer and Xxxxx Fargo
Bank Minnesota, National Association as Trustee; Asset-Backed
Certificates, Series 2000-2
------------------------------------------------------------------
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 Mortgage File and has determined that 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 are in its possession.
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.
C-1-1
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.
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By:
--------------------------------
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF INTERIM CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of November 1,
2000 among Bear Xxxxxxx Asset Backed Securities, Inc.,
as Depositor, EMC Mortgage Corporation as Seller and
Master Servicer and Xxxxx Fargo Bank Minnesota, National
Association as Trustee; Asset-Backed Certificates,
Series 2000-2
--------------------------------------------------------
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 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.
C-2-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
Xxxxx Fargo Bank Minnesota, National
Association
as Trustee
By:
---------------------------------
Name:
Title:
C-2-2
EXHIBIT C-3
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
Re: Pooling and Servicing Agreement dated as of November 1,
2000 among Bear Xxxxxxx Asset Backed Securities, Inc.,
as Depositor, EMC Mortgage Corporation as Seller and
Master Servicer and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee; Asset-Backed Certificates,
Series 2000-2
--------------------------------------------------------
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) (i) 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; and (ii) an
original title insurance policy (or if a master title policy has been issued by
the title insurer, a mortgagee's certificate of title insurance), if available,
or a copy thereof, whenever a title insurance binder or commitment or other
assurance of title was originally delivered.
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.
C-3-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
Xxxxx Fargo Bank Minnesota, National
Association,
as Trustee
By:
---------------------------------
Name:
Title:
C-3-2
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] [Class R-1] [Class R-2]
[Class R-3] Certificate (the "Certificate") issued pursuant to the Pooling and
Servicing Agreement, dated as of November 1, 2000 (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 Xxxxx Fargo Bank Minnesota, 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 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 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 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.)
D-1
5. The Transferee has reviewed the provisions of Section 5.02(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 Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 5.02(c) of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the Transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit 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.
* * *
D-2
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 _____________, 19__.
[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 _______, 19__.
------------------------------
---------------------------------
NOTARY PUBLIC
My Commission expires the ___ day
of _______________, 19__.
D-3
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] [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] [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.
D-4
EXHIBIT 2 TO EXHIBIT D
Section 5.02(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 5.02(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 5.02(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 5.02(b) and this Section 5.02(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
D-5
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,
upon receipt 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 5.02(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.
D-6
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE FOR
CLASS B-IO, CLASS XP, CLASS R, 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
Xxxxx Fargo Bank Minnesota, National Association
as Trustee
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000
Ref: Bear Xxxxxxx, ABS 2000-2
Re: Bear Xxxxxxx Asset Backed Securities, Inc. Asset-Backed
Certificates, Series 2000-2
---------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class __ 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 [R] [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, 2000, among Bear
Xxxxxxx Asset Backed Securities, Inc., as Depositor, EMC Mortgage Corporation as
Seller and Master Servicer and Xxxxx Fargo Bank Minnesota, National Association,
as Trustee.
Very truly yours,
----------------------------------
Name of Transferor
By:
-------------------------------
Name:
Title:
E-1
EXHIBIT F
FORM OF INVESTMENT LETTER [NON-RULE 144A] FOR
CLASS B-IO, CLASS XP, CLASS R, 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
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000
Ref: Bear Xxxxxxx, ABS 2000-2
Re: Bear Xxxxxxx Asset Backed Securities, Inc. Asset-Backed
Certificates, Series 2000-2
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the Class __ 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
F-1
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, 2000 (the "Agreement"), among Bear Xxxxxxx Asset Backed
Securities, Inc., as Depositor, EMC Mortgage Corporation as Seller and Master
Servicer and Xxxxx Fargo Bank Minnesota, 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:
F-2
EXHIBIT G
FORM OF RULE 144A LETTER FOR
CLASS B-IO, CLASS XP, CLASS R, 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
Xxxxx Fargo Bank Minnesota, National Association
as Trustee
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000
Ref: Bear Xxxxxxx, ABS 2000-2
Re: Bear Xxxxxxx Asset Backed Securities, Inc. Asset-Backed
Certificates, Series 2000-2
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of the Class __ 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
G-1
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, 2000, among Bear Xxxxxxx
Asset Backed Securities, Inc., as Depositor, EMC Mortgage Corporation as Seller
and Master Servicer and Xxxxx Fargo Bank Minnesota, National Association, as
Trustee.
------------------------------------
Name of Buyer
By:
---------------------------------
Name:
Title:
G-2
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.
-------------
(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.
G-3
___ 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.
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.
G-4
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:
-------------------------------
G-5
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.
G-6
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
Date:
-------------------------------
G-7
EXHIBIT H
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank Minnesota, National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, XX 00000-0000
Attn: Inventory Control
Re: Pooling and Servicing Agreement (the "Agreement"), dated as of
November 1, 2000, among Bear Xxxxxxx Asset Backed Securities,
Inc., as Depositor, EMC Mortgage Corporation, as Seller and Master
Servicer, and Xxxxx Fargo Bank Minnesota, 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
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:
----------------------------------------
----------------------------------------
----------------------------------------
H-1
By:
-------------------------------------
(authorized signer)
Issuer:
---------------------------------
Address:
--------------------------------
----------------------------------------
Date:
-----------------------------------
Trustee
Xxxxx Fargo Bank Minnesota, National Association
Please acknowledge the execution of the above request by your signature and date
below:
------------------------------ -------------
Signature Date
Documents returned to Trustee
----------------------------- -------------
Trustee Date
H-2
Exhibit I
DTC LETTER OF REPRESENTATIONS
(Available Upon Request)
I-1
Exhibit J
SCHEDULE OF MORTGAGE LOANS WITH LOST NOTES
(Available Upon Request)
J-1
