EXECUTION
STRUCTURED ASSET SECURITIES CORPORATION, as Depositor,
XXXXXX BROTHERS HOLDINGS INC., as Seller,
THE MURRAYHILL COMPANY, as Loss Mitigation Advisor,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
and
FEDERAL HOME LOAN MORTGAGE CORPORATION, as Guarantor
---------------------------
TRUST AGREEMENT
Dated as of May 1, 2001
---------------------------
AMORTIZING RESIDENTIAL COLLATERAL TRUST
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-BC4
Table of Contents
Page
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Article I. DEFINITIONS............................................................................................8
Section 1.01 Definitions..................................................................................8
Section 1.02 Calculations Respecting Mortgage Loans......................................................38
Section 1.03 Calculations Respecting Accrued Interest....................................................38
Article II. DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES.......................................................38
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans........................38
Section 2.02 Acceptance of Trust Fund by Trustee: Review of Documentation for Trust Fund.................41
Section 2.03 Representations and Warranties of the Depositor.............................................43
Section 2.04 Discovery of Breach.........................................................................44
Section 2.05 Repurchase, Purchase or Substitution of Mortgage Loans......................................45
Section 2.06 Grant Clause................................................................................46
Article III. THE CERTIFICATES....................................................................................46
Section 3.01 The Certificates............................................................................46
Section 3.02 Registration................................................................................47
Section 3.03 Transfer and Exchange of Certificates.......................................................47
Section 3.04 Cancellation of Certificates................................................................50
Section 3.05 Replacement of Certificates.................................................................50
Section 3.06 Persons Deemed Owners.......................................................................50
Section 3.07 Temporary Certificates......................................................................51
Section 3.08 Appointment of Paying Agent.................................................................51
Section 3.09 Book-Entry Certificates.....................................................................51
Article IV. ADMINISTRATION OF THE TRUST FUND.....................................................................53
Section 4.01 The Trustee Remittance Report...............................................................53
Section 4.02 Cancellation of MGIC Insurance Policy.......................................................53
Section 4.03 Reports to Certificateholders...............................................................53
Section 4.04 Certificate Account.........................................................................56
Article V. DISTRIBUTIONS TO HOLDERS OF CERTIFICATES..............................................................59
Section 5.01 Distributions Generally.....................................................................59
Section 5.02 Distributions from the Certificate Account..................................................60
Section 5.03 The Guarantee...............................................................................67
Section 5.04 Allocation of Losses........................................................................67
Section 5.05 Advances by the Trustee.....................................................................67
Section 5.06 Basis Risk Reserve Fund.....................................................................68
Article VI. CONCERNING THE TRUSTEE; EVENTS OF DEFAULT............................................................69
Section 6.01 Duties of Trustee...........................................................................69
Section 6.02 Certain Matters Affecting the Trustee.......................................................71
Section 6.03 Trustee Not Liable for Certificates.........................................................72
i
Section 6.04 Trustee May Own Certificates................................................................72
Section 6.05 Eligibility Requirements for Trustee........................................................72
Section 6.06 Resignation and Removal of Trustee..........................................................73
Section 6.07 Successor Trustee...........................................................................74
Section 6.08 Merger or Consolidation of Trustee..........................................................74
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian....................................74
Section 6.10 Authenticating Agents.......................................................................76
Section 6.11 Indemnification of Trustee..................................................................77
Section 6.12 Fees and Expenses of Trustee................................................................77
Section 6.13 Collection of Monies........................................................................77
Section 6.14 Trustee To Act; Appointment of Successor....................................................77
Section 6.15 Additional Remedies of Trustee Upon Event of Default........................................78
Section 6.16 Waiver of Defaults..........................................................................78
Section 6.17 Notification to Holders.....................................................................78
Section 6.18 Directions by Certificateholders and Duties of Trustee During Event of Default..............79
Section 6.19 Action Upon Certain Failures of the Servicer and Upon Event of Default......................79
Article VII. PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND........................................79
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation of All
Mortgage Loans..............................................................................79
Section 7.02 Procedure Upon Termination of Trust Fund....................................................80
Section 7.03 Additional Trust Fund Termination Requirements..............................................81
Article VIII. RIGHTS OF CERTIFICATEHOLDERS.......................................................................81
Section 8.01 Limitation on Rights of Holders.............................................................81
Section 8.02 Access to List of Holders...................................................................82
Section 8.03 Acts of Holders of Certificates.............................................................83
Article IX. ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.......................................................83
Section 9.01 Trustee To Retain Possession of Certain Insurance Policies and Documents....................83
Section 9.02 Preparation of Tax Returns and Other Reports................................................84
Section 9.03 Release of Mortgage Files...................................................................85
Section 9.04 Special Servicing of Delinquent Mortgage Loans..............................................85
Section 9.05 Duties of the Loss Mitigation Advisor.......................................................86
Section 9.06 Limitation Upon Liability of the Loss Mitigation Advisor....................................86
Article X. REMIC ADMINISTRATION..................................................................................86
Section 10.01 REMIC Administration........................................................................86
Section 10.02 Prohibited Transactions and Activities......................................................88
Section 10.03 Indemnification with Respect to Certain Taxes and Loss of REMIC Status......................89
Section 10.04 REO Property................................................................................89
ii
Article XI. MISCELLANEOUS PROVISIONS.............................................................................90
Section 11.01 Binding Nature of Agreement; Assignment.....................................................90
Section 11.02 Entire Agreement............................................................................90
Section 11.03 Amendment...................................................................................90
Section 11.04 Voting Rights...............................................................................91
Section 11.05 Provision of Information....................................................................91
Section 11.06 Governing Law...............................................................................92
Section 11.07 Notices.....................................................................................92
Section 11.08 Severability of Provisions..................................................................92
Section 11.09 Indulgences; No Waivers.....................................................................92
Section 11.10 Headings Not To Affect Interpretation.......................................................93
Section 11.11 Benefits of Agreement.......................................................................93
Section 11.12 Conflicts...................................................................................93
Section 11.13 Counterparts................................................................................93
Section 11.14 Transfer of Servicing.......................................................................93
Section 11.15 Special Notices to the Rating Agencies......................................................94
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B [Reserved]
Exhibit C Request for Release of Documents and Receipt
Exhibit D-1 Residual Certificate Transfer Affidavit (Transferee)
Exhibit D-2 Residual Certificate Transfer Affidavit (Transferor)
Exhibit E Servicing Agreement (Option One Mortgage Corporation)
Exhibit F Form of Rule 144A Transfer Certificate
Exhibit G Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit H Form of ERISA Transfer Affidavit
Exhibit I Custodial Agreement (U.S. Bank Trust, National Association)
Exhibit J Form of Trustee Remittance Report
Exhibit K [Reserved]
Exhibit L [Reserved]
Exhibit M Form of Loss Mitigation Advisory Agreement, dated as of May 1,
2001, between The Murrayhill Company, as Loss Mitigation Advisor, and the Servicer
Schedule A Mortgage Loan Schedule
iii
This TRUST AGREEMENT, dated as of May 1, 2001 (the "Agreement"), is by
and among STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as
depositor (the "Depositor"), XXXXXX BROTHERS HOLDINGS INC., as seller (the
"Seller"), THE MURRAYHILL COMPANY, a Colorado corporation, as loss mitigation
advisor (the "Loss Mitigation Advisor"), XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee"), and the
FEDERAL HOME LOAN MORTGAGE CORPORATION, as guarantor (the "Guarantor").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Seller, and at
the Closing Date is the owner of the Mortgage Loans and the other property being
conveyed by it to the Trustee hereunder for inclusion in the Trust Fund. On the
Closing Date, the Depositor will acquire the Certificates from the Trust Fund,
as consideration for its transfer to the Trust Fund of the Mortgage Loans and
the other property constituting the Trust Fund. The Depositor has duly
authorized the execution and delivery of this Agreement to provide for the
conveyance to the Trustee of the Mortgage Loans and the other property
constituting the Trust Fund. All covenants and agreements made by the Seller in
the Mortgage Loan Sale and Assignment Agreement and by the Depositor and the
Trustee herein with respect to the Mortgage Loans and the other property
constituting the Trust Fund are for the benefit of the Holders from time to time
of the Certificates and the Guarantor. The Depositor, the Seller, the Trustee,
the Guarantor and the Loss Mitigation Advisor are entering into this Agreement,
and the Trustee is accepting the Trust Fund created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
As provided herein, the Trustee shall elect that each of the segregated
pools of assets of the Trust Fund described below be treated for federal income
tax purposes as comprising three real estate mortgage investment conduits (each
a "REMIC" or, in the alternative, REMIC 1, REMIC 2 and REMIC 3, REMIC 3 also
being referred to as the "Upper Tier REMIC"). Each Certificate, other than the
Class A-IO Certificate, the Class X Certificate, the Class R Certificate and the
Class P Certificate, represents ownership of a regular interest in the Upper
Tier REMIC for purposes of the REMIC Provisions. The Class A-IO Certificate and
the Class X Certificate each represent ownership of two regular interests in the
Upper Tier REMIC as described in notes 7 and 9, respectively, of the table below
for such REMIC. In addition, each Certificate, other than the Class R, Class
A-IO, Class X, and Class P Certificates, represents the right to receive
payments with respect to any Basis Risk Shortfalls from the Basis Risk Reserve
Fund pursuant to Section 5.06. The Class R Certificate represents ownership of
the sole class of residual interest in each of REMIC 1, REMIC 2 and the Upper
Tier REMIC for purposes of the REMIC Provisions. The Upper Tier REMIC shall hold
as its assets the several classes of uncertificated Lower Tier Interests in
REMIC 2, other than the Class LT2-R Interest, and each such Lower Tier Interest
is hereby designated as a regular interest in REMIC 2 for purposes of the REMIC
Provisions. REMIC 2 shall hold as its assets the several classes of
uncertificated Lower Tier Interests in REMIC 1, other than the Class LT1-R
Interest, and each such Lower Tier Interest is hereby designated as a regular
interest in REMIC 1. REMIC 1 shall hold as its assets the property of the Trust
Fund other than the Lower Tier Interests in REMIC 1 and REMIC 2 and the Basis
Risk Reserve Fund, the right to receive Prepayment Premiums and the Escrow
Accounts. The startup day for each REMIC created hereby for purposes of the
REMIC Provisions is the Closing Date. In addition, for purposes of the REMIC
Provisions, the latest possible maturity date for each regular interest in each
REMIC created hereby is the Distribution Date in April 2031.
REMIC 1
The following table sets forth (or describes) the class designation,
interest rate, and initial principal amount for each class of REMIC 1 Lower Tier
Interests.
REMIC 1 REMIC 1
Lower Tier Class Lower Tier Initial Class
Designation Interest Rate Principal Amount
----------- ------------- ----------------
Class LT1-A1 (1) $253,575,385.26
Class LT1-C1 (1) 11,527,216.00
Class LT1-D1 (1) 11,527,215.00
Class LT1-E1 (1) 11,527,216.00
Class LT1-F1 (1) 23,054,431.00
Class LT1-G1 (1) 23,054,431.00
Class LT1-H1 (1) 23,054,432.00
Class LT1-A2 (2) 88,493,221.07
Class LT1-C2 (2) 2,530,364.00
Class LT1-D2 (2) 2,530,365.00
Class LT1-E2 (2) 2,530,382.00
Class LT1-F2 (2) 5,060,711.00
Class LT1-G2 (2) 5,060,729.00
Class LT1-H2 (2) 5,060,728.00
Class LT1-R (3) (3)
---------------------------
(1) The interest rate with respect to any Distribution Date (and the
related Accrual Period) for these Lower Tier Interests is a per annum
rate equal to the weighted average of the Net Mortgage Rates of the
Pool 1 Mortgage Loans as of the first day of the related Collection
Period.
(2) The interest rate with respect to any Distribution Date (and the
related Accrual Period) for these Lower Tier Interests is a per annum
rate equal to the weighted average of the Net Mortgage Rates of the
Pool 2 Mortgage Loans as of the first day of the related Collection
Period.
(3) The Class LT1-R Interest is the sole class of residual interest in
REMIC 1. It does not have an interest rate or a principal balance.
On each Distribution Date, the Trustee shall distribute the Interest
Remittance Amount for Pool 1 and for Pool 2 to the Lower Tier Interests in REMIC
1 at the rates shown above.
On each Distribution Date the Trustee shall distribute the Principal
Remittance Amount for Pool 1, and shall allocate any Realized Losses in respect
of Pool 1, in the following order and priority:
(i) First, to the Class LT1-A1 Interest until its principal balance
is reduced to zero;
2
(ii) Second, to the Class LT1-C1 Interest until its principal balance
is reduced to zero;
(iii) Third, to the Class LT1-D1 Interest until its principal balance
is reduced to zero;
(iv) Fourth, to the Class LT1-E1 Interest until its principal balance
is reduced to zero;
(v) Fifth, to the Class LT1-F1 Interest until its principal balance
is reduced to zero;
(vi) Sixth, to the Class LT1-G1 Interest until its principal balance
is reduced to zero; and
(vii) Finally, to the Class LT1-H1 Interest until its principal
balance is reduced to zero.
On each Distribution Date the Trustee shall distribute the Principal
Remittance Amount for Pool 2, and shall allocate any Realized Losses in respect
of Pool 2, in the following order and priority:
(viii) First, to the Class LT1-A2 Interest until its principal balance
is reduced to zero;
(ix) Second, to the Class LT1-C2 Interest until its principal balance
is reduced to zero;
(x) Third, to the Class LT1-D2 Interest until its principal balance
is reduced to zero;
(xi) Fourth, to the Class LT1-E2 Interest until its principal balance
is reduced to zero;
(xii) Fifth, to the Class LT1-F2 Interest until its principal balance
is reduced to zero;
(xiii) Sixth, to the Class LT1-G2 Interest until its principal balance
is reduced to zero; and
(xiv) Finally, to the Class LT1-H2 Interest until its principal
balance is reduced to zero.
Each month, REMIC 1 shall charge as an expense an amount equal to the
sum of (i) the Guarantee Fee, (ii) the Loss Mitigation Advisor's Fee, (iii) the
MGIC Insurance Premiums, (iv) the Trustee Fee, and (v) the Servicing Fee, each
with respect to Pool 1 or Pool 2. Each month REMIC 1 shall also charge as an
expense all income from the investment of funds in the Certificate Account.
REMIC 2
The following table sets forth (or describes) the class designation,
interest rate, and initial principal amount for each class of REMIC 2 Lower Tier
Interests.
3
Corresponding
REMIC 2 REMIC 2 Class of
Lower Tier Class Lower Tier Initial Class Certificate(s) or
Designation Interest Rate Principal Amount Component
----------- ------------- ---------------- ---------
Class LT2-A1 (1) $167,493,000.00 Class A1
Class LT2-A2 (2) 52,156,000.00 Class A2
Class LT2-M1 (3) 7,029,000.00 Class M1
Class LT2-M2 (3) 4,686,000.00 Class M2
Class LT2-B (3) 2,929,000.00 Class B
Class LT2-Q (4) 234,293,826.33 N/A
Class LT2-C1-IO (5) (5) Class A-IO (1)
Class LT2-D1-IO (6) (6) Class A-IO (1)
Class LT2-E1-IO (7) (7) Class A-IO (1)
Class LT2-F1-IO (8) (8) Class A-IO (1)
Class LT2-G1-IO (9) (9) Class A-IO (1)
Class LT2-H1-IO (10) (10) Class A-IO (1)
Class LT2-C2-IO (11) (11) Class A-IO (2)
Class LT2-D2-IO (12) (12) Class A-IO (2)
Class LT2-E2-IO (13) (13) Class A-IO (2)
Class LT2-F2-IO (14) (14) Class A-IO (2)
Class LT2-G2-IO (15) (15) Class A-IO (2)
Class LT2-H2-IO (16) (16) Class A-IO (2)
Class LT2-R (17) (17) Class R
---------------------------
(1) The interest rate with respect to any Distribution Date (and the
related Accrual Period) for the Class LT2-A1 Interest is a per annum
rate equal to the Pool 1 Net Funds Cap.
(2) The interest rate with respect to any Distribution Date (and the
related Accrual Period), on or prior to the Distribution Date on which
the Class Principal Amount of the Class A1 Certificates has been
reduced to zero, for the Class LT2-A2 Interest is a per annum rate
equal to the Pool 2 Net Funds Cap. The interest rate with respect to
any Distribution Date (and the related Accrual Period), after the
Distribution Date on which the Class Principal Amount of the Class A1
Certificates has been reduced to zero, for the Class LT2-A2 Interest is
a per annum rate equal to the Subordinate Net Funds Cap.
(3) The interest rate with respect to any Distribution Date (and the
related Accrual Period) for the Class LT2-M1, Class LT2-M2, and Class
LT2-B Interests is a per annum rate equal to the Subordinate Net Funds
Cap.
(4) The interest rate with respect to any Distribution Date (and the
related Accrual Period) for the Class LT2-Q Interest is a per annum
rate equal to the weighted average of the Pool 1 Net Funds Cap and the
Pool 2 Net Funds Cap, weighted on the basis of the Pool Balance for
each Mortgage Pool.
(5) The Class LT2-C1-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in November 2001 the Class LT2-C1-IO
Interest shall be entitled to interest payable on the Class LT1-C1
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(6) The Class LT2-D1-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in May 2002 the Class LT2-D1-IO
Interest shall be entitled to interest payable on the Class LT1-D1
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
4
(7) The Class LT2-E1-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in November 2002 the Class LT2-E1-IO
Interest shall be entitled to interest payable on the Class LT1-E1
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(8) The Class LT2-F1-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in May 2003 the Class LT2-F1-IO
Interest shall be entitled to interest payable on the Class LT1-F1
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(9) The Class LT2-G1-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in November 2003 the Class LT2-G1-IO
Interest shall be entitled to interest payable on the Class LT1-G1
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(10) The Class LT2-H1-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in May 2004 the Class LT2-H1-IO
Interest shall be entitled to interest payable on the Class LT1-H1
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(11) The Class LT2-C2-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in November 2001 the Class LT2-C2-IO
Interest shall be entitled to interest payable on the Class LT1-C2
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(12) The Class LT2-D2-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in May 2002 the Class LT2-D2-IO
Interest shall be entitled to interest payable on the Class LT1-D2
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(13) The Class LT2-E2-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in November 2002 the Class LT2-E2-IO
Interest shall be entitled to interest payable on the Class LT1-E2
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(14) The Class LT2-F2-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in May 2003 the Class LT2-F2-IO
Interest shall be entitled to interest payable on the Class LT1-F2
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(15) The Class LT2-G2-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in November 2003 the Class LT2-G2-IO
Interest shall be entitled to interest payable on the Class LT1-G2
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(16) The Class LT2-H2-IO Interest is an interest-only Class and does not
have a principal balance. For each Distribution Date through and
including the Distribution Date in May 2004 the Class LT2-H2-IO
Interest shall be entitled to interest payable on the Class LT1-H2
Interest at a rate of 6.00% per annum and shall not be entitled to any
payments thereafter.
(17) The Class LT2-R Interest is the sole class of residual interests in
REMIC 2. It does not have an interest rate or a principal balance.
5
On each Distribution Date interest shall be distributed with respect to
each of the Lower Tier Interests based on the above-described pass-through
rates, provided however, that interest that accrues on the Class LT2-Q Interest
shall be deferred in an amount equal to one-half of the increase, if any, in the
Overcollateralization Amount for such Distribution Date. Any interest so
deferred shall itself bear interest at the pass-through rate for the class LT2-Q
Interest. An amount equal to the interest so deferred shall be distributed as
additional principal on the other REMIC 2 Lower Tier Interests having a
principal balance.
On each Distribution Date the Principal Distribution Amount for each
Mortgage Pool (together with an amount equal to the interest deferred on the
Class LT2-Q Interest for such Distribution Date) and Realized Losses for each
Mortgage Pool shall be distributed in the following order of priority:
(1) First, concurrently to the Class LT2-A1 Interest and the Class
LT2-A2 Interest until the principal balance of each such Lower
Tier Interest equals one-half of the Class Principal Amount of
the Corresponding Class of Certificates immediately after such
Distribution Date;
(2) Second, to the Class LT2-M1 Interest until its principal balance
equals one-half of the Class Principal Amount of the Class M1
Certificates immediately after such Distribution Date;
(3) Third, to the Class LT2-M2 Interest until its principal balance
equals one-half of the Class Principal Amount of the Class M2
Certificates immediately after such Distribution Date;
(4) Fourth, to the Class LT2-B Interest until its principal balance
equals one-half of the Class Principal Amount of the Class B
Certificates immediately after such Distribution Date; and
(5) Finally, to the Class LT-Q Interest, any remaining amounts.
REMIC 3
The following table sets forth (or describes) the Class designation,
Certificate Interest Rate, initial Class Principal Amount, and minimum
denomination for each Class of Certificates comprising interests in the Trust
Fund created hereunder. Each Certificate, other than the Class P and Class R
Certificates, represents ownership of regular interests in the Upper Tier REMIC.
Certificate Interest Initial Class Minimum
Class Designation Rate Principal Amount Denominations
--------------------------- -------------------- ---------------- -------------
Class A1 (1) $334,986,000 (10)
Class A2 (2) 104,312,000 $ 25,000
Class A-IO 6.00% (9) 500,000
Class M1 (3) 14,058,000 25,000
Class M2 (4) 9,372,000 25,000
Class B (5) 5,858,000 25,000
Class P (6) (6) (11)
Class X (7) (7) (11)
Class R (8) (8) (11)
---------------------------
(1) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class A1 Certificates is the
per annum rate equal to the lesser of (i) LIBOR plus 0.11% and (ii) the
Pool 1 Net Funds Cap for such Distribution Date; provided, that if
neither the Servicer nor Aurora exercises its option to purchase the
Mortgage Loans and related property pursuant to Section 7.01(b) on the
Initial Optional Purchase Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause (i)
above with respect to the Class A1 Certificates will be LIBOR plus
0.22%.
6
(2) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class A2 Certificates is the
per annum rate equal to the lesser of (i) LIBOR plus 0.26% and (ii)
with respect to any Distribution Date on which the Class A1
Certificates are outstanding, the Pool 2 Net Funds Cap for such
Distribution Date or, after the Distribution Date on which the Class
Principal Amount of the Class A1 Certificates has been reduced to zero,
the Subordinate Net Funds Cap; provided, that if neither the Servicer
nor Aurora exercises its option to purchase the Mortgage Loans and
related property pursuant to Section 7.01(b) on the Initial Optional
Purchase Date, then with respect to each subsequent Distribution Date
the per annum rate calculated pursuant to clause (i) above with respect
to the Class A2 Certificates will be LIBOR plus 0.52%.
(3) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class M1 Certificates is the
per annum rate equal to the lesser of (i) LIBOR plus 0.59% and (ii) the
Subordinate Net Funds Cap for such Distribution Date; provided, that if
neither the Servicer nor Aurora exercises its option to purchase the
Mortgage Loans and related property pursuant to Section 7.01(b) on the
Initial Optional Purchase Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause (i)
above with respect to the Class M1 Certificates will be LIBOR plus
0.885%.
(4) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class M2 Certificates is the
per annum rate equal to the lesser of (i) LIBOR plus 1.00% and (ii) the
Subordinate Net Funds Cap for such Distribution Date; provided, that if
neither the Servicer nor Aurora exercises its option to purchase the
Mortgage Loans and related property pursuant to Section 7.01(b) on the
Initial Optional Purchase Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause (i)
above with respect to the Class M2 Certificates will be LIBOR plus
1.50%.
(5) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class B Certificates is the
per annum rate equal to the lesser of (i) LIBOR plus 1.90% and (ii) the
Subordinate Net Funds Cap for such Distribution Date; provided, that if
neither the Servicer nor Aurora exercises its option to purchase the
Mortgage Loans and related property pursuant to Section 7.01(b) on the
Initial Optional Purchase Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause (i)
above with respect to the Class B Certificates will be LIBOR plus
2.85%.
(6) The Class P Certificate will be issued without a Certificate Principal
Amount and will not bear interest at a stated rate but shall entitle
the Holder thereof to receive Prepayment Premiums paid with respect to
the Mortgage Loans as provided in Section 5.02(f). The Class P
Certificate shall be an interest in the Trust Fund but shall not be an
interest in any REMIC created under this Agreement.
(7) The Class X Certificate shall have an initial principal balance of
$826.33, but shall not accrue interest on that balance. In addition to
the right to receive ultimately the initial principal balance of
$826.33, which right represents a regular interest in the Upper Tier
REMIC, the Class X Certificate also comprises a notional component,
which is also a regular interest in the Upper Tier REMIC. The notional
component has a notional principal balance that at all times will equal
the aggregate of the principal balances of the Class LT2-A1, Class
LT2-A2, Class LT2-M1, Class LT2-M2, Class LT2-B, and Class LT2-Q
Interests (i.e., the Aggregate Loan Balance). For each Distribution
Date (and the related Accrual Period), the notional component shall
bear interest at a rate equal to the excess of (a) the weighted average
of the interest rates on the Class LT2-A1, Class LT2-A2, Class LT2-M1,
Class LT2-M2, Class LT2-B, and Class LT2-Q Interests weighted on the
basis of the principal balance of each such Lower Tier Interest (i.e.,
the weighted average of the Pool 1 Net Funds Cap and the Pool 2 Net
Funds Cap, weighted on the basis of the Pool Balance for each Mortgage
Pool), over (b) the Adjusted Average Rate. For any Distribution Date,
interest that accrues on the notional component of the Class X
Certificate shall be deferred to the extent of any increase in the
Overcollateralization Amount on such date. Such deferred interest shall
not itself bear interest.
7
(8) The Class R Certificate will be issued without a Certificate Principal
Amount and will not bear interest at a stated rate. The Class R
Certificate represents ownership of the residual interest in the Upper
Tier REMIC, as well as ownership of the Class LT2-R and Class LT1-R
Interests.
(9) Solely for the purpose of determining distributions of interest on the
Class A-IO Certificates, the Class A-IO Certificates will be comprised
of two components, each of which is a regular interest in REMIC 3, the
"A-IO(1) Component" relating to Pool 1 and the "A-IO(2) Component"
relating to Pool 2. On any Distribution Date, the A-IO(1) Component
shall be entitled to all amounts distributable with respect to the
Class LT2-C1-IO, Class LT2-D1-IO, Class LT2-E1-IO, Class LT2-F1-IO,
Class LT2-G1-IO, and Class LT2-H1-IO Interests. On any Distribution
Date, the A-IO(2) Component shall be entitled to all amounts
distributable with respect to the Class LT2-C2-IO, Class LT2-D2-IO,
Class LT2-E2-IO, Class LT2-F2-IO, Class LT2-G2-IO, and Class LT2-H2-IO
Interests.
(10) The Class A1 Certificates will initially be issued as a single
Certificate evidencing the entire Class Principal Amount thereof.
(11) The Class P, Class X and Class R Certificates will each be issued as a
single Certificate evidencing the entire Percentage Interest in such
Class.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $468,586,826.33.
In consideration of the mutual agreements herein contained, the
Depositor, the Seller, the Guarantor, the Loss Mitigation Advisor and the
Trustee hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions. The following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: As provided in the Servicing Agreement.
Accountant: A person engaged in the practice of accounting who (except
when this Agreement provides that an Accountant must be Independent) may be
employed by or affiliated with the Depositor or an Affiliate of the Depositor.
Accrual Period: With respect to the LIBOR Certificates and each
component of the Class A-IO Certificates and any Distribution Date, the period
beginning on the immediately preceding Distribution Date (or on the Closing
Date, in the case of the first Accrual Period) and ending on the day immediately
preceding the related Distribution Date.
Adjustable Rate Mortgage Loan: Any Mortgage Loan as to which the
related Mortgage Note provides for the adjustment of the Mortgage Rate payable
in respect thereto.
Adjusted Average Rate: With respect to any Distribution Date (and the
related Accrual Period) a per annum rate equal to the product of (a) two, and
(b) the weighted average of the interest rates on the Class LT2-A1, Class
LT2-A2, Class LT2-M1, Class LT2-M2, Class LT2-B, and Class LT2-Q Interests,
computed for this purpose by limiting the interest rate payable on the Class
LT2-Q Interest to zero and the rate payable on each of the other Lower Tier
Interests to a rate that corresponds to the Certificate Interest Rate payable on
the Corresponding Class of Certificates.
8
Advance: An advance of the aggregate of payments of principal and
interest (net of the Servicing Fee) on one or more Mortgage Loans that were due
on the Due Date in the related Collection Period and not received as of the
close of business on the related Determination Date, required to be made by or
on behalf of the Servicer (or by the Trustee) pursuant to Section 5.05.
Adverse REMIC Event: As defined in Section 10.01(f).
Advisor's Fee Rate: 0.015% per annum.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
Aggregate Expense Rate: With respect to any Mortgage Loan, the sum of
the Servicing Fee Rate, the Trustee Fee Rate, the Insurance Fee Rate, in the
case of a MGIC-Insured Mortgage Loan, the Guarantee Fee Rate, in the case of a
Mortgage Loan in Pool 1 (multiplied, for this purpose only, by a fraction,
expressed as a percentage, the numerator of which is the Class Principal Amount
of the Class A1 Certificates and the denominator of which is the Pool Balance
for Pool 1) and the Advisor's Fee Rate.
Aggregate Loan Balance: As of any date of determination, the aggregate
of the Scheduled Principal Balances of all Mortgage Loans (in both Mortgage
Pools).
Aggregate Overcollateralization Release Amount: With respect to any
Distribution Date, the lesser of (x) the aggregate of the Principal Remittance
Amounts for both Mortgage Pools for such Distribution Date and (y) the amount,
if any, by which (i) the Overcollateralization Amount for such date, calculated
for this purpose on the basis of the assumption that 100% of the aggregate of
the Principal Remittance Amounts for such Distribution Date is applied on such
date in reduction of the aggregate of the Certificate Principal Amounts of the
Certificates, exceeds (ii) the Targeted Overcollateralization Amount for such
Distribution Date.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments hereof and
supplements hereto.
Anniversary Year: The one-year period beginning on the Closing Date and
ending on the first anniversary thereof, and each subsequent one-year period
beginning on the day after the end of the preceding Anniversary Year and ending
on next succeeding anniversary of the Closing Date.
9
Applied Loss Amount: With respect to any Distribution Date, the amount,
if any, by which (x) the aggregate Certificate Principal Amount of the
Certificates after giving effect to all Realized Losses incurred with respect to
the Mortgage Loans during the related Collection Period and distributions of
principal on such Distribution Date, but before giving effect to any application
of the Applied Loss Amount with respect to such date, exceeds (y) the Aggregate
Loan Balance for such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the amount set
forth in an appraisal made in connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
or record the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law; provided, however, that the
Trustee shall not be responsible for determining whether any such assignment is
in recordable form.
Aurora: Aurora Loan Services Inc., an Affiliate of the Seller.
Authenticating Agent: Any authenticating agent appointed by the Trustee
pursuant to Section 6.10.
Authorized Officer: Any Person who may execute an Officer's Certificate
on behalf of the Depositor.
B Principal Distribution Amount: With respect to any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect
with respect to such Distribution Date, the amount, if any, by which (x) the sum
of (i) the aggregate Class Principal Amount of the Class A1, Class A2, Class M1
and Class M2 Certificates, in each case after giving effect to distributions on
such Distribution Date and (ii) the Class Principal Amount of the Class B
Certificates immediately prior to such Distribution Date exceeds (y) the B
Target Amount.
B Target Amount: With respect to any Distribution Date, an amount equal
to the lesser of (a) the product of (i) 99.50% and (ii) the Aggregate Loan
Balance for such Distribution Date and (b) the amount, if any, by which (i) the
Aggregate Loan Balance for such Distribution Date exceeds (ii) 0.25% of the
Cut-off Date Aggregate Loan Balance.
Balloon Mortgage Loan: Any Mortgage Loan having an original term to
maturity that is shorter than its amortization schedule, and a final Scheduled
Payment that is disproportionately large in comparison to other Scheduled
Payments.
Balloon Payment: The final Scheduled Payment in respect of a Balloon
Mortgage Loan.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief, or
seeking, consenting to or acquiescing in the appointment of a trustee, receiver
or liquidator, dissolution, or termination, as the case may be, of such Person
pursuant to the provisions of either the Bankruptcy Code or any other similar
state laws.
10
Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended.
Basis Risk Payment: With respect to any Distribution Date, an amount
equal to the sum of (i) any Basis Risk Shortfall for such Distribution Date,
(ii) any Unpaid Basis Risk Shortfalls from previous Distribution Dates and (iii)
any Required Reserve Fund Deposit for such Distribution Date. The amount of the
Basis Risk Payment for any Distribution Date cannot exceed the amount otherwise
distributable in respect to the Class X Certificate.
Basis Risk Reserve Fund: A fund created as part of the Trust Fund
pursuant to Section 5.06 of this Agreement but which is not an asset of any of
the REMICs.
Basis Risk Shortfall: With respect to any Distribution Date and any
Class of LIBOR Certificates, the amount by which the amount of interest
calculated at the Certificate Interest Rate applicable to such Class for such
date, determined without regard to the applicable Net Funds Cap or Subordinate
Net Funds Cap for such date but subject to a cap equal to the amount by which
the Maximum Interest Rate exceeds the amount of interest calculated at the Pool
1 Net Funds Cap, Pool 2 Net Funds Cap or Subordinate Net Funds Cap, as
applicable.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the Trustee
to the effect that any proposed transfer will not (i) cause the assets of the
Trust Fund to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the Depositor
or the Trustee.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a Clearing
Agency as described in Section 3.09; provided, that after the occurrence of a
condition whereupon book-entry registration and transfer are no longer permitted
and Definitive Certificates are to be issued to Certificate Owners, such
Book-Entry Certificates shall no longer be "Book-Entry Certificates." As of the
Closing Date, the following Classes of Certificates constitute Book-Entry
Certificates: the Class A2, Class A-IO, Class M1, Class M2 and Class B
Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, (ii) a day
on which banking institutions in Maryland, Minnesota or New York or the city in
which the Corporate Trust Office of the Trustee is located, (iii) with respect
to any Remittance Date or the Servicer's reporting date, any day on which the
banking institutions in the States specified in the definition of "Business Day"
in the Servicing Agreement, are authorized or obligated by law or executive
order to be closed or (iv) a day on which the Guarantor is closed.
Carryforward Interest: With respect to any Distribution Date and each
Class of LIBOR Certificates and each component of the Class A-IO Certificates,
the sum of (i) the amount, if any, by which (x) the sum of (A) Current Interest
for such Class (or any Component thereof) for the immediately preceding
Distribution Date and (B) any unpaid Carryforward Interest from previous
Distribution Dates exceeds (y) the amount distributed in respect of interest on
such Class (or any Component thereof) on such immediately preceding Distribution
Date, and (ii) interest on such amount for the related Accrual Period at the
applicable Certificate Interest Rate. Carryforward Interest with respect to the
Class A-IO Certificates and any Distribution Date will equal the aggregate
Carryforward Interest on the components of such Class.
11
Certificate: Any one of the certificates signed and countersigned by
the Trustee in substantially the forms attached hereto as Exhibit A.
Certificate Account: The account maintained by the Trustee in
accordance with the provisions of Section 4.04.
Certificate Interest Rate: With respect to any Class of Certificates
and any Distribution Date, the applicable per annum rate set forth or described
in the Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the owner of such Book-Entry Certificate, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate (other
than the Class A-IO, Class P and Class R Certificates) and any date of
determination, the initial Certificate Principal Amount thereof on the Closing
Date, less the amount of all principal distributions previously distributed with
respect to such Certificate and any Applied Loss Amount previously allocated to
such Certificate. The Class A-IO, Class P and Class R Certificates are issued
without Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of "Holder."
Civil Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940,
as amended.
Class: All Certificates, and in the case of REMIC 1 and REMIC 2, all
Lower Tier Interests, bearing the same class designation.
Class Notional Amount: With respect to the Class A-IO Certificates and
any Distribution Date, the sum of the Component Notional Amount of the A-IO(1)
Component and the Component Notional Amount of the A-IO(2) Component. The
initial Class Notional Amount of the Class A-IO Certificates is $126,518,220.00
Class Principal Amount: With respect to each Class of Certificates
other than the Class A-IO, Class P and Class R Certificates, the aggregate of
the Certificate Principal Amounts of all Certificates of such Class at the date
of determination. With respect to the Class A-IO, Class P and Class R
Certificates, zero.
12
Class P Certificate: An interest in the Trust Fund that is not an
interest in any REMIC created pursuant to this Agreement and that is entitled to
distributions as provided in Section 5.02(f).
Class R Certificate: The Class R Certificate executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially in
the form annexed hereto as Exhibit A and evidencing the ownership of the Class
LT1-R Interest, Class LT2-R Interest and the residual interest in the Upper Tier
REMIC.
Class X Distributable Amount: On any Distribution Date, the amount of
interest that has accrued on the notional component of the Class X Certificate,
as described in the Preliminary Statement, but that has not been distributed
prior to such date. In addition, such amount shall include the initial
Overcollateralization Amount of $826.33 to the extent such amount has not been
distributed on an earlier Distribution Date as part of the Aggregate
Overcollateralization Release Amount.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
Closing Date: June 8, 2001.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Collection Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month immediately preceding the
month in which such Distribution Date occurs and ending on the first day of the
calendar month in which such Distribution Date occurs.
Component: The A-IO(1) Component or A-IO(2) Component of the Class A-IO
Certificate.
Component Notional Amount: With respect to the A-IO(1) Component and
the A-IO(2) Component of the Class A-IO Certificates and any Distribution Date,
a notional amount which will be calculated as follows:
(i) for each Distribution Date falling within the period
from June 2001 through November 2001, (a) the
Component Notional Amount of the A-IO(1) Component
will equal the lesser of (i) $103,744,941 and (ii)
the Pool Balance for Pool 1 as of the first day of
the related Collection Period (or as of the Cut-off
Date, in the case of the first Distribution Date) and
(b) the Component Notional Amount of the A-IO(2)
Component will equal the lesser of (i) $22,773,279
and (ii) the Pool Balance for Pool 2 as of the first
day of the related Collection Period (or as of the
Cut-off Date, in the case of the first Distribution
Date);
13
(ii) for each Distribution Date falling within the period
from December 2001 through May 2002, (a) the
Component Notional Amount of the A-IO(1) Component
will equal the lesser of (i) $92,217,725 and (ii) the
Pool Balance for Pool 1 as of the first day of the
related Collection Period and (b) the Component
Notional Amount of the A-IO(2) Component will equal
the lesser of (i) $20,242,915 and (ii) the Pool
Balance for Pool 2 as of the first day of the related
Collection Period;
(iii) for each Distribution Date falling within the period
from June 2002 through November 2002, (a) the
Component Notional Amount of the A-IO(1) Component
will equal the lesser of (i) $80,690,510 and (ii) the
Pool Balance for Pool 1 as of the first day of the
related Collection Period and (b) the Component
Notional Amount of the A-IO(2) Component will equal
the lesser of (i) $17,712,550 and (ii) the Pool
Balance for Pool 2 as of the first day of the related
Collection Period;
(iv) for each Distribution Date falling within the period
from December 2002 through May 2003, (a) the
Component Notional Amount of the A-IO(1) Component
will equal the lesser of (i) $69,163,294 and (ii) the
Pool Balance for Pool 1 as of the first day of the
related Collection Period and (b) the Component
Notional Amount of the A-IO(2) Component will equal
the lesser of (i) $15,182,186 and (ii) the Pool
Balance for Pool 2 as of the first day of the related
Collection Period;
(v) for each Distribution Date falling within the period
from June 2003 through November 2003, (a) the
Component Notional Amount of the A-IO(1) Component
will equal the lesser of (i) $46,108,863 and (ii) the
Pool Balance for Pool 1 as of the first day of the
related Collection Period and (b) the Component
Notional Amount of the A-IO(2) Component will equal
the lesser of (i) $10,121,457 and (ii) the Pool
Balance for Pool 2 as of the first day of the related
Collection Period;
(vi) for each Distribution Date falling within the period
from December 2003 through May 2004, (a) the
Component Notional Amount of the A-IO(1) Component
will equal the lesser of (i) $23,054,432 and (ii) the
Pool Balance for Pool 1 as of the first day of the
related Collection Period and (b) the Component
Notional Amount of the A-IO(2) Component will equal
the lesser of (i) $5,060,728 and (ii) the Pool
Balance for Pool 2 as of the first day of the related
Collection Period;
(vii) for any Distribution Date thereafter, the Component
Notional Amount of each of the A-IO(1) Component and
the A-IO(2) Component will equal zero.
14
Corporate Trust Office: The principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services (ARC 2001-BC4); provided that its administrative services office is
located at 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Department.
Corresponding Class: The Class of Certificates which corresponds with a
class of interests in REMIC 2 as described in the Preliminary Statement.
Current Interest: With respect to each Class of LIBOR Certificates and
each Component of the Class A-IO Certificates and any Distribution Date, the
aggregate amount of interest accrued at the applicable Certificate Interest Rate
during the related Accrual Period on the Class Principal Amount of such Class or
the Component Notional Amount of such Component, as applicable, immediately
prior to such Distribution Date. Current Interest with respect to the Class A-IO
Certificates and any Distribution Date will equal the aggregate Current Interest
on the components of such Class.
Custodial Account: Any custodial account (other than an Escrow Account)
established and maintained by the Servicer pursuant to the Servicing Agreement.
Custodial Agreement: The custodial agreement attached as Exhibit I
hereto, and any custodial agreement subsequently executed by the Trustee
substantially in the form thereof.
Custodian: Each custodian appointed by the Trustee pursuant to a
Custodial Agreement, and any successor thereto. The initial Custodian is U.S.
Bank Trust, National Association.
Cut-off Date: The close of business on May 1, 2001.
Cut-off Date Aggregate Loan Balance: With respect to the Mortgage Loans
in the Trust Fund on the Closing Date, the Aggregate Loan Balance as of the
Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
in the Scheduled Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
Deferred Amount: With respect to any Distribution Date and each
Certificate, the aggregate of Applied Loss Amounts previously applied in
reduction of the Certificate Principal Amount thereof, less any amounts
previously reimbursed in respect thereof.
Deficiency Amount: With respect to any Distribution Date, the sum of
(i) the Guaranteed Interest Distribution Amount and (ii) the Guaranteed
Principal Distribution Amount, in each case with respect to such Distribution
Date.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
15
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased from the
Trust Fund pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Delinquency Rate: With respect to any calendar month, the fraction,
expressed as a percentage, the numerator of which is the aggregate outstanding
principal balance of all Mortgage Loans 60 days Delinquent or more (including
all foreclosures, bankruptcies and REO Properties) as of the close of business
on the last day of such month, and the denominator of which is the Aggregate
Loan Balance as of the close of business on the last day of such month.
Delinquent: For reporting purposes, a Mortgage Loan is "delinquent"
when any payment contractually due thereon has not been made by the close of
business on the Due Date therefor. Such 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
first 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" and the second immediately succeeding month and "90 days
Delinquent" and the third immediately succeeding month.
Depositor: Structured Asset Securities Corporation, a Delaware
corporation having its principal place of business in New York, or its
successors in interest.
Determination Date: With respect to each Distribution Date, the close
of business on the fifth Business Day prior to such Distribution Date.
Disqualified Organization: Either (i) the United States, (ii) any state
or political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative described
in section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by section 511
of the Code, (vii) any organization described in section 1381(a)(2)(C) of the
Code, (viii) any "electing large partnership" described in section 775 of the
Code, or (ix) any other entity designated as a Disqualified Organization by
relevant legislation amending the REMIC Provisions and in effect at or proposed
to be effective as of the time of the determination. In addition, a corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof if, with the exception of FHLMC, all of its
activities are subject to tax and a majority of its board of directors is not
selected by such governmental unit.
Distribution Date: The 25th day of each month or, if such 25th day is
not a Business Day, the next succeeding Business Day, commencing in June 2001.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note.
16
Eligible Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable to
the Guarantor, or (ii) an account or accounts the deposits in which are insured
by the FDIC to the limits established by such corporation, provided that any
such deposits not so insured shall be maintained in an account at a depository
institution or trust company whose commercial paper or other short term debt
obligations (or, in the case of a depository institution or trust company which
is the principal subsidiary of a holding company, the commercial paper or other
short term debt or deposit obligations of such holding company or depository
institution, as the case may be) have been rated by a Rating Agency in its
highest short-term rating category, or (iii) a segregated trust account or
accounts (which shall be a "special deposit account") maintained with the
Trustee or any other federal or state chartered depository institution or trust
company, acting in its fiduciary capacity, in a manner acceptable to the Trustee
and the Guarantor. Eligible Accounts may bear interest.
Eligible Investments: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America ("Direct Obligations");
(ii) direct obligations of, and obligations fully guaranteed
by, the Guarantor;
(iii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries of
foreign depositories and the Trustee or any agent of the Trustee,
acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and
subject to supervision and examination by federal or state banking
authorities, so long as at the time of investment or the contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the commercial
paper or other short-term debt or deposit obligations of such holding
company or deposit institution, as the case may be) have been rated by
each Rating Agency in its highest short-term rating category or one of
its two highest long-term rating categories;
(iv) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, FNMA or FHLMC with any
registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC, if
such broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest short-term rating
category;
(v) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of
America or any state thereof which have a credit rating from each
Rating Agency, at the time of investment or the contractual commitment
providing for such investment, at least equal to one of the two highest
long-term credit rating categories of each Rating Agency; provided,
17
however, that securities issued by any particular corporation will not
be Eligible Investments to the extent that investment therein will
cause the then outstanding principal amount of securities issued by
such corporation and held as part of the Trust Fund to exceed 20% of
the sum of the Aggregate Loan Balance and the aggregate principal
amount of all Eligible Investments in the Certificate Account;
provided, further, that such securities will not be Eligible
Investments if they are published as being under review with negative
implications from any Rating Agency;
(vi) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than 180 days after the date of
issuance thereof) rated by each Rating Agency in its highest short-term
rating category;
(vii) a Qualified GIC;
(viii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of
the United States of America or its agencies or instrumentalities
(which obligations are backed by the full faith and credit of the
United States of America) held by a custodian in safekeeping on behalf
of the holders of such receipts; and
(ix) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment, (A) rated in the highest rating category by each Rating
Agency or (B) that would not adversely affect the then current rating
by each Rating Agency of any of the Certificates. Such investments in
this subsection (ix) may include money market mutual funds or common
trust funds, including any fund for which Xxxxx Fargo Bank Minnesota,
National Association (the "Bank"), the Trustee or an affiliate thereof
serves as an investment advisor, administrator, shareholder servicing
agent, and/or custodian or subcustodian, notwithstanding that (x) the
Bank or an affiliate thereof charges and collects fees and expenses
from such funds for services rendered, (y) the Bank or an affiliate
thereof charges and collects fees and expenses for services rendered
pursuant to this Agreement, and (z) services performed for such funds
and pursuant to this Agreement may converge at any time. The Trustee
specifically authorizes the Bank or an affiliate thereof to charge and
collect from the Trustee such fees as are collected from all investors
in such funds for services rendered to such funds (but not to exceed
investment earnings thereon);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
18
ERISA-Restricted Certificate: Any Class P, Class X, and Class R
Certificate and any Certificate with a rating below the lowest applicable rating
permitted under the Underwriter's Exemption.
Escrow Account: Any account established and maintained by the Servicer
pursuant to the Servicing Agreement.
Event of Default: An event described in Section 8.01 of the Servicing
Agreement, which pursuant to such agreement may result in termination for cause
and entitles the Seller, the Guarantor and the Trustee to terminate the
Servicer.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: With respect to the Class A1, Class
A2, Class M1, Class M2 and Class B Certificates, April 25, 2031. With respect to
the Class A-IO Certificates, June 25, 2004.
Financial Intermediary: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Clearing Agency Participant.
Fitch: Fitch, Inc., or any successor in interest.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
GNMA: The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Guarantee: The obligations of the Guarantor pursuant to Section 5.03.
Guarantee Fee: With respect to any Distribution Date, the fee payable
to the Guarantor in respect of its services as Guarantor that accrues at the
Guarantee Fee Rate on a balance equal to the Class Principal Amount of the Class
A1 Certificates immediately prior to such Distribution Date, based on the actual
number of days in the related Collection Period and a 360-day year.
Guarantee Fee Rate: The per annum rate set forth in a side letter of
the Guarantor addressed to the Trustee, the Depositor and the Seller.
Guaranteed Interest Distribution Amount: With respect to any
Distribution Date, the amount, if any, by which Current Interest on the Class A1
Certificates for such Distribution Date exceeds the amount remaining on deposit
in the Certificate Account (after giving effect to distributions pursuant to
Section 5.02(b)(i)-(iii) and Section 5.02(c)(i)-(ii) on such Distribution Date)
and available to make distributions of interest on the Class A1 Certificates.
19
Guaranteed Principal Distribution Amount: With respect to any
Distribution Date, the amount, if any, by which the Class Principal Amount of
the Class A1 Certificates (after giving effect to all distributions to be made
on such Distribution Date other than the Guarantor Payment) exceeds the Pool
Balance for Pool 1 as of the end of the related Collection Period.
Guarantor: FHLMC or its successor in interest.
Guarantor Payment: Any payment made by the Guarantor in respect of a
Deficiency Amount.
Guarantor Reimbursement Amount: With respect to any Distribution Date,
(i) the sum of any accrued but unpaid Guarantee Fees, and (ii) the sum of all
Guarantor Payments made on all prior Distribution Dates to the extent not
previously reimbursed, with interest thereon at a rate equal to the Prime Rate
(as of such Distribution Date) plus 2.00%.
Holder or Certificateholder: The registered owner of any Certificate as
recorded on the books of the Certificate Registrar except that, solely for the
purposes of taking any action or giving any consent pursuant to this Agreement,
any Certificate registered in the name of the Depositor, the Seller, the
Trustee, the Servicer, the Loss Mitigation Advisor, MGIC or any Affiliate
thereof shall be deemed not to be outstanding in determining whether the
requisite percentage necessary to effect any such consent has been obtained,
except that, in determining whether the Trustee shall be protected in relying
upon any such consent, only Certificates which a Responsible Officer of the
Trustee knows to be so owned shall be disregarded. The Trustee may request and
conclusively rely on certifications by the Depositor, the Servicer, the Loss
Mitigation Advisor or MGIC in determining whether any Certificates are
registered to an Affiliate of the Depositor, the Seller, the Servicer, the Loss
Mitigation Advisor or MGIC.
HUD: The United States Department of Housing and Urban Development, or
any successor thereto.
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and Exchange
Commission's Regulation S-X. When used with respect to any other Person, a
Person who (a) is in fact independent of another specified Person and any
Affiliate of such other Person, (b) does not have any material direct financial
interest in such other Person or any Affiliate of such other Person, and (c) is
not connected with such other Person or any Affiliate of such other Person as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
Index: The index specified in the related Mortgage Note for calculation
of the Mortgage Rate thereof.
Information Circular: The information circular dated May 31, 2001
relating to the Class A1 Certificates.
Initial LIBOR Rate: 4.02%.
20
Initial Optional Purchase Date: The first Distribution Date following
the date on which the Aggregate Loan Balance is less than 10% of the Cut-off
Date Aggregate Loan Balance.
Insurance Fee Rate: With respect to each MGIC-Insured Mortgage Loan, a
per annum rate equal to 1.03%, plus any taxes due and payable with respect to
any MGIC-Insured Mortgage Loan secured by a Mortgaged Property located in the
states of Kentucky and West Virginia.
Insurance Policy: Any Primary Mortgage Insurance Policy (whether
obtained by the borrower or the Seller on behalf of the Trust), any standard
hazard insurance policy, flood insurance policy, earthquake insurance policy or
title insurance policy relating to the Mortgage Loans or the Mortgaged
Properties, to be in effect as of the Closing Date or thereafter during the term
of this Agreement.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy, other than amounts (i) to cover expenses incurred by or on behalf of the
Servicer in connection with procuring such proceeds, (ii) to be applied to
restoration or repair of the related Mortgaged Property or (iii) required to be
paid over to the Mortgagor pursuant to law or the related Mortgage Note.
Interest Remittance Amount: With respect to each Mortgage Pool and any
Distribution Date, (a) the sum of (i) all interest collected (other than
Payaheads) or advanced in respect of Scheduled Payments on the Mortgage Loans in
such Mortgage Pool, during the related Collection Period, less (w) the MGIC
Insurance Premiums related to the Mortgage Loans in such Mortgage Pool and
certain state taxes imposed on such premiums, (x) any Prepayment Premiums
received by the Servicer with respect to such Mortgage Loans during such
Collection Period, (y) the Servicing Fee with respect to such Mortgage Loans and
(z) previously unreimbursed Advances due to the Servicer or the Trustee to the
extent allocable to interest and previously unreimbursed Servicing Advances with
respect to such Mortgage Loans, (ii) any amounts paid by the Servicer with
respect to Net Prepayment Interest Shortfalls with respect to such Mortgage
Loans and the related Prepayment Period, (iii) the portion of any Purchase Price
or Substitution Amount paid with respect to such Mortgage Loans during the
related Prepayment Period allocable to interest and (iv) all Net Liquidation
Proceeds, Insurance Proceeds and any other recoveries collected with respect to
such Mortgage Loans during the related Prepayment Period, to the extent
allocable to interest, as reduced by unreimbursed interest Advances and other
amounts due to the Trustee, to the extent allocable to interest, and as reduced
by, for each Mortgage Pool, (b) the product of (i) the applicable Pool
Percentage for such Distribution Date and (ii) any expenses of the Trustee
reimbursable pursuant to Section 6.11; provided, however, that such reimbursable
amounts may not exceed $500,000 in the aggregate for any Anniversary Year.
Intervening Assignments: The original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument.
21
Late Collections: With respect to any Mortgage Loan, all amounts
received subsequent to the Remittance Date immediately following any related
Collection Period, whether as late payments of Scheduled Payments or as
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to any
acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent on a contractual basis for such Collection Period and not previously
recovered.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR
Rate. With respect to each subsequent Accrual Period, a per annum rate
determined on the LIBOR Determination Date in the following manner by the
Trustee on the basis of the "Interest Settlement Rate" set by the British
Bankers' Association (the "BBA") for one-month United States dollar deposits, as
such rates appear on the Telerate Page 3750, as of 11:00 a.m. (London time) on
such LIBOR Determination Date.
(a) If on such a LIBOR Determination Date, the BBA's Interest
Settlement Rate does not appear on the Telerate Page 3750 as of 11:00 a.m.
(London time), or if the Telerate Page 3750 is not available on such date, the
Trustee will obtain such rate from Reuters' "page LIBOR 01" or Bloomberg's page
"BBAM". If such rate is not published for such LIBOR Determination Date, LIBOR
for such date will be the most recently published Interest Settlement Rate. In
the event that the BBA no longer sets an Interest Settlement Rate, the Trustee
will designate an alternative index that has performed, or that the Depositor
expects to perform, in a manner substantially similar to the BBA's Interest
Settlement Rate. The Trustee will select a particular index as the alternative
index only if it receives an Opinion of Counsel (a copy of which shall be
furnished to the Trustee and the Guarantor), which opinion shall be an expense
reimbursed from the Certificate Account pursuant to Section 4.04, that the
selection of such index will not cause any of the REMICs to lose their
classification as REMICs for federal income tax purposes.
(b) The establishment of LIBOR by the Trustee and the Trustee's
subsequent calculation of the Certificate Interest Rate applicable to the LIBOR
Certificates for the relevant Accrual Period, in the absence of manifest error,
will be final and binding.
LIBOR Business Day: Any day on which banks in London, England and The
City of New York are open and conducting transactions in foreign currency and
exchange.
LIBOR Certificate: Any Class A1, Class A2, Class M1, Class M2 and Class
B Certificate.
LIBOR Determination Date: The second LIBOR Business Day immediately
preceding the commencement of each Accrual Period for any LIBOR Certificates.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Servicer has determined that all amounts that it expects to recover on behalf of
the Trust Fund from or on account of such Mortgage Loan have been recovered.
Liquidation Expenses: Expenses that are incurred by the Servicer in
connection with the liquidation of any defaulted Mortgage Loan and not
recoverable under the applicable Primary Mortgage Insurance Policy, if any,
including, without limitation, foreclosure and rehabilitation expenses, legal
expenses and unreimbursed amounts expended pursuant to the Servicing Agreement.
22
Liquidation Proceeds: Cash received in connection with the liquidation
of a defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale, payment in full, discounted
payoff or otherwise, or the sale of the related Mortgaged Property if the
Mortgaged Property is acquired in satisfaction of the Mortgage Loan, including
any amounts remaining in the related Escrow Account.
Loss Mitigation Advisor: The Murrayhill Company, a Colorado
corporation, and its successors and assigns.
Loss Mitigation Advisory Agreement: The loss mitigation and advisory
agreement, dated as of the Closing Date, entered into by the Servicer and the
Loss Mitigation Advisor in connection with the MGIC Insurance Policy in the form
of Exhibit M1.
Loss Mitigation Advisor's Fee: As to any Distribution Date and each
Mortgage Loan, an amount equal to the product of one-twelfth of the Advisor's
Fee Rate and the Scheduled Principal Balance of such Mortgage Loan as of the
first day of the related Collection Period.
Lower Tier Interest: As described in the Preliminary Statement.
M1 Principal Distribution Amount: With respect to any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect
with respect to such Distribution Date, the amount, if any, by which (x) the sum
of (i) the aggregate Class Principal Amount of the Class A1 and Class A2
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class M1
Certificates immediately prior to such Distribution Date exceeds (y) the M1
Target Amount.
M1 Target Amount: With respect to any Distribution Date, an amount
equal to the lesser of (a) the product of (i) 93.00% and (ii) the Aggregate Loan
Balance for such Distribution Date and (b) the amount, if any, by which (i) the
Aggregate Loan Balance for such Distribution Date exceeds (ii) 0.25% of the
Cut-off Date Aggregate Loan Balance.
M2 Principal Distribution Amount: With respect to any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect
with respect to such Distribution Date, the amount, if any, by which (x) the sum
of (i) the aggregate Class Principal Amount of the Class A1, Class A2 and Class
M1 Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class M2
Certificates immediately prior to such Distribution Date exceeds (y) the M2
Target Amount.
M2 Target Amount: With respect to any Distribution Date, an amount
equal to the lesser of (a) the product of (i) 97.00% and (ii) the Aggregate Loan
Balance for such Distribution Date and (b) the amount, if any, by which (i) the
Aggregate Loan Balance for such Distribution Date exceeds (ii) 0.25% of the
Cut-off Date Aggregate Loan Balance.
Material Defect: As defined in Section 2.02(b) hereof.
23
Maximum Interest Rate: With respect to any Distribution Date on which
the Class A1 Certificates are outstanding, the per annum rate equal to the
amount, if any, by which (1) the weighted average of the maximum "lifetime"
Mortgage Rates specified in the related Mortgage Notes of the (i) Pool 1
Mortgage Loans (in the case of the Class A1 Certificates), (ii) Pool 2 Mortgage
Loans (in the case of the Class A2 Certificates) or (iii) the Pool 1 Mortgage
Loans and the Pool 2 Mortgage Loans, weighted on the basis of the Pool
Subordinate Amount for each Mortgage Pool (in the case of the Subordinate
Certificates) exceeds (2) (I) in the case of the first 36 Distribution Dates
only, the sum of (A) the weighted average Aggregate Expense Rate of the related
Mortgage Loans and (B) the product of (x) 6.00% and (y) a fraction, the
numerator of which is the Component Notional Amount of the A-IO(1) Component (in
the case of Pool 1) or the Component Notional Amount of the A-IO(2) Component
(in the case of Pool 2) immediately prior to such Distribution Date and the
denominator of which is the Pool Balance for the related Mortgage Pool for that
Distribution Date and (II) thereafter, the weighted average Aggregate Expense
Rate of the related Mortgage Loans. After the Distribution Date on which the
Class Principal Amount of the Class A1 Certificates has been reduced to zero,
the "Maximum Interest Rate" will in all cases be equal to the amount, if any, by
which (1) the weighted average of the maximum "lifetime" Mortgage Rates
specified in the related Mortgage Notes for all the Mortgage Loans exceeds (2)
(I) in the case of the first 36 Distribution Dates only, the sum of (A) the
weighted average Aggregate Expense Rate of the related Mortgage Loans and (B)
the product of (x) 6.00% and (y) a fraction, the numerator of which is the
Component Notional Amount of the A-IO(1) Component (in the case of Pool 1) or
the Component Notional Amount of the A-IO(2) Component (in the case of Pool 2)
immediately prior to such Distribution Date and the denominator of which is the
Pool Balance for the related Mortgage Pool for that Distribution Date and (II)
thereafter, the weighted average Aggregate Expense Rate of the related Mortgage
Loans.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related Mortgage,
or an Assignment of Mortgage, has been or will be recorded in the name of MERS,
as agent for the holder from time to time of the Mortgage Note.
MGIC: Mortgage Guaranty Insurance Corporation, a monoline insurance
company and its successors or assigns.
MGIC-Insured Mortgage Loan: Any Mortgage Loan included for coverage
under a MGIC Insurance Policy.
MGIC Insurance Policy: The loan-level Primary Mortgage Insurance Policy
on the MGIC-Insured Mortgage Loans issued by MGIC to the Trust, as the insured,
as evidenced by the issuance of a Mortgage Guaranty Master Policy Number
22-400-4-1463 and related endorsements.
MGIC Insurance Premium: With respect to each Distribution Date and each
MGIC-Insured Mortgage Loan, the product of (a) one-twelfth of the Insurance Fee
Rate and (b) the Scheduled Principal Balance of such Mortgage Loan as of the
first day of the related Collection Period.
24
Monthly Excess Cashflow: With respect to any Distribution Date, the sum
of (x) the Pool 1 Monthly Excess Interest for such date, (y) the Pool 2 Monthly
Excess Interest for such date and (z) the Aggregate Overcollateralization
Release Amount for such date.
Moody's: Xxxxx'x Investors Service, Inc., or any successor in interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the Trustee
pursuant to this Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold, assigned
to or deposited with the Trustee pursuant to Section 2.01 or Section 2.05,
including without limitation, each Mortgage Loan listed on the Mortgage Loan
Schedule, as amended from time to time.
Mortgage Loan Sale and Assignment Agreement: The agreement, dated as of
May 1, 2001, for the sale of the Mortgage Loans by the Seller to the Depositor.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time to reflect the addition of Mortgage Loans to, or the deletion of
Mortgage Loans from, the Trust Fund. Any such amendment to such schedule shall
be provided by the Depositor to the Loss Mitigation Advisor within 15 Business
Days of such amendment. Such schedule shall, among other things (i) designate
the applicable Mortgage Pool relating to such Mortgage Loan; (ii) in the case of
more than one Servicer, designate the Servicer servicing such Mortgage Loan;
(iii) in the case of more than one Servicer, designate the Servicing Agreement
relating to such Mortgage Loan; (iv) in the case of more than one Custodian,
designate the Custodian with respect to the Mortgage File related to such
Mortgage Loan; (v) in the case of more than one Custodian, designate the
Custodial Agreement relating to such Mortgage Loan; and (vi) where applicable,
indicate whether such Mortgage Loan is a MGIC-Insured Mortgage Loan and the MGIC
Insurance Premium for such Mortgage Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Either Pool 1 or Pool 2.
Mortgage Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan, as determined under the related Mortgage
Note.
Mortgaged Property: The fee simple interest in real property, together
with improvements thereto including any exterior improvements to be completed
within 120 days of disbursement of the related Mortgage Loan proceeds.
Mortgagor: The obligor on a Mortgage Note.
25
Net Excess Spread: With respect to any Distribution Date, (A) the
fraction, expressed as a percentage, the numerator of which is equal to the
product of (i) the amount, if any, by which (a) the aggregate Interest
Remittance Amounts for both Mortgage Pools for such Distribution Date (as
reduced by the Trustee Fee, Guarantee Fee, Guarantor Reimbursement Amounts and
Loss Mitigation Advisor's Fee) exceeds (b) the Current Interest payable with
respect to the Certificates for such date and (ii) twelve, and the denominator
of which is the Aggregate Loan Balance for such Distribution Date, multiplied by
(B) a fraction, the numerator of which is thirty and the denominator of which is
the greater of thirty and the actual number of days in the immediately preceding
calendar month.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan,
the related Liquidation Proceeds net of (i) unreimbursed expenses and (ii) any
unreimbursed Advances and Servicing Advances, if any, received and retained in
connection with the liquidation of such Mortgage Loan.
Net Mortgage Rate: With respect to any Mortgage Loan, the Mortgage Rate
thereof reduced by the sum of the Aggregate Expense Rate of such Mortgage Loan.
Net Prepayment Interest Excess Amount: With respect to any Distribution
Date, the excess, if any, of any amounts paid by the Servicer pursuant to
Section 4.04 of the Servicing Agreement for such date over Prepayment Interest
Shortfalls with respect to the Mortgage Loans for such date.
Net Prepayment Interest Shortfall: With respect to any Distribution
Date, the excess, if any, of any Prepayment Interest Shortfalls with respect to
the Mortgage Loans for such date over any amounts paid by the Servicer pursuant
to Section 4.04 of the Servicing Agreement for such date.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-MERS Mortgage Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any individual, corporation, partnership or other
person other than (i) a citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
state thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
26
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class Notional
Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class A-IO Certificate, which, solely for the
purpose of determining distributions of interest thereon from each Mortgage
Pool, will be composed of the "A-IO(1) Component", relating to Pool 1 and the
"A-IO(2) Component", relating to Pool 2.
Offering Document: The Information Circular and the Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Vice President or any Assistant
Vice President of a Person, and in each case delivered to the Trustee and the
Guarantor.
Opinion of Counsel: A written opinion of counsel, reasonably acceptable
in form and substance to the Trustee and the Guarantor, and who may be in-house
or outside counsel to the Depositor, or the Trustee but which must be
Independent outside counsel with respect to any such opinion of counsel
concerning the transfer of any Residual Certificate or concerning certain
matters with respect to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the taxation, or the federal income tax status, of each
REMIC or, if provided by the Servicer, as provided in the Servicing Agreement.
Original Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor at
the time the related Mortgage Loan was originated.
Overcollateralization Amount: With respect to any Distribution Date,
the amount, if any, by which (x) the Aggregate Loan Balance for such
Distribution Date exceeds (y) the aggregate Class Principal Amount of the Class
A1, Class A2, Class M1, Class M2 and Class B Certificates after giving effect to
distributions on such Distribution Date.
Overcollateralization Deficiency: With respect to any Distribution
Date, the amount, if any, by which (x) the Targeted Overcollateralization Amount
for such Distribution Date exceeds (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after giving effect to the
reduction on such Distribution Date of the Certificate Principal Amounts of the
Certificates resulting from the distribution of the Principal Remittance Amounts
on such Distribution Date, but prior to allocation of any Applied Loss Amount on
such Distribution Date.
Payahead: With respect to any Mortgage Loan and any Due Date therefor,
any Scheduled Payment received by the Servicer during any Collection Period in
addition to the Scheduled Payment due on such Due Date, intended by the related
Mortgagor to be applied on a subsequent Due Date or Due Dates.
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
27
Percentage Interest: With respect to any Certificate, its percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to the Class A1, Class A2, Class M1, Class M2 and Class B Certificates,
the Percentage Interest evidenced thereby shall equal the initial Certificate
Principal Amount thereof divided by the initial Class Principal Amount of all
Certificates of the same Class. With respect to the Class P, Class X and Class R
Certificates, the Percentage Interest evidenced thereby shall be as specified on
the face thereof. With respect to any Class A-IO Certificate, the Percentage
Interest evidenced thereby shall equal the initial Notional Amount of such Class
A-IO Certificate as set forth on the face thereof, divided by the initial Class
Notional Amount of the Class A-IO Certificates.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Plan Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. 2510.3-101.
Pool Balance: With respect to each Mortgage Pool, the aggregate of the
Scheduled Principal Balances of all Mortgage Loans in such Mortgage Pool at the
date of determination.
Pool 1 Monthly Excess Interest: With respect to any Distribution Date,
the amount of any Interest Remittance Amount remaining after application
pursuant to clauses (i) through (ix) of Section 5.02(b) on such date.
Pool 2 Monthly Excess Interest: With respect to any Distribution Date,
the amount of any Interest Remittance Amount remaining after application
pursuant to clauses (i) through (vii) of Section 5.02(c) on such date.
Pool 1 Net Funds Cap: With respect to any Distribution Date and the
Class A1 Certificates, a per annum rate equal to (a) a fraction, expressed as a
percentage, the numerator of which is the product of (i) the Pool 1 Optimal
Interest Remittance Amount for such date and (ii) 12, and the denominator of
which is the Pool Balance for Pool 1 for the immediately preceding Distribution
Date multiplied by (b) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the Accrual Period related
to such Distribution Date.
Pool 2 Net Funds Cap: With respect to any Distribution Date and the
Class A2 Certificates, a per annum rate equal to (a) a fraction, expressed as a
percentage, the numerator of which is the product of (i) the Pool 2 Optimal
Interest Remittance Amount for such date and (ii) 12, and the denominator of
which is the Pool Balance for Pool 2 for the immediately preceding Distribution
Date multiplied by (b) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the Accrual Period related
to such Distribution Date.
Pool 1 Optimal Interest Remittance Amount: With respect to each
Distribution Date and the Class A1 Certificates, (1) the product of (A) (x) the
weighted average of the Net Mortgage Rates of the Pool 1 Mortgage Loans as of
the first day of the related Collection Period, divided by (y) 12 and (B) the
Pool Balance for Pool 1 for the immediately preceding Distribution Date minus
(2) in the case of the first 36 Distribution Dates only, an amount equal to the
product of (A) 0.50% and (B) the Component Notional Amount of the A-IO(1)
Component immediately prior to such Distribution Date.
28
Pool 2 Optimal Interest Remittance Amount: With respect to each
Distribution Date and the Class A2 Certificates, (1) the product of (A) (x) the
weighted average of the Net Mortgage Rates of the Pool 2 Mortgage Loans as of
the first day of the related Collection Period, divided by (y) 12 and (B) the
Pool Balance for Pool 2 for the immediately preceding Distribution Date minus
(2) in the case of the first 36 Distribution Dates only, an amount equal to the
product of (A) 0.50% and (B) the Component Notional Amount of the A-IO(2)
Component immediately prior to such Distribution Date.
Pool 1: The aggregate of the Mortgage Loans identified on the Mortgage
Loan Schedule as being included in Pool 1.
Pool 1 Subordinate Percentage: Immediately after any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the Pool
Subordinate Amount for Pool 1 and the denominator of which is the sum of the
Pool Subordinate Amount for Pool 1 and the Pool Subordinate Amount for Pool 2.
Pool 2: The aggregate of the Mortgage Loans identified on the Mortgage
Loan Schedule as being included in Pool 2.
Pool 2 Subordinate Percentage: Immediately after any Distribution Date,
a fraction, expressed as a percentage, the numerator of which is the Pool
Subordinate Amount for Pool 2 and the denominator of which is the sum of the
Pool Subordinate Amount for Pool 1 and the Pool Subordinate Amount for Pool 2.
Pool Percentage: With respect to each Mortgage Pool and any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the Pool Balance for such Mortgage Pool for such date and the
denominator of which is the Aggregate Loan Balance for such date.
Pool Subordinate Amount: As to either Mortgage Pool and any
Distribution Date, the excess of the Pool Balance for such Mortgage Pool for the
immediately preceding Distribution Date over the Class Principal Amount of the
Class A1 Certificates (in the case of Pool 1) or the Class A2 Certificates (in
the case of Pool 2) immediately prior to the related Distribution Date.
Prepayment Interest Excess Amount: With respect to any full or partial
Principal Prepayment of a Mortgage Loan, the difference between (i) the amount
of interest actually received with respect to such Mortgage Loan at the time of
such Principal Prepayment and (ii) one full month's interest at the applicable
Mortgage Rate (giving effect to any applicable Relief Act Reduction) (and in the
case of Principal Prepayments in full, as reduced by the Servicing Fee Rate for
Principal Prepayments in full only) on the outstanding principal balance of such
Mortgage Loan immediately prior to such prepayment.
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Prepayment Interest Shortfall: With respect to any full or partial
Principal Prepayment of a Mortgage Loan, the difference between (i) one full
month's interest at the applicable Mortgage Rate (giving effect to any
applicable Relief Act Reduction) (and in the case of Principal Prepayments in
full, as reduced by the Servicing Fee Rate for Principal Prepayments in full
only) on the outstanding principal balance of such Mortgage Loan immediately
prior to such prepayment and (ii) the amount of interest actually received with
respect to such Mortgage Loan at the time of such Principal Prepayment.
Prepayment Period: With respect to each Distribution Date, the
one-month period beginning on the Cut-off Date, in the case of the first
Distribution Date, and thereafter on the second day of the calendar month
immediately preceding the month in which the related Distribution Date occurs,
in the case of each subsequent Distribution Date, and ending on the first day of
the month in which such Distribution Date occurs.
Prepayment Premiums: Any prepayment fees and penalties to be paid by
the Mortgagor on a Mortgage Loan.
Primary Mortgage Insurance Policy: The MGIC Insurance Policy, and any
other mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
Prime Rate: The prime rate of United States money center commercial
banks as published in The Wall Street Journal, Northeast Edition.
Principal Distribution Amount: With respect to each Mortgage Pool and
any Distribution Date, an amount equal to the Principal Remittance Amount for
such Mortgage Pool for such date minus the Aggregate Overcollateralization
Release Amount, if any, allocable to such Mortgage Pool for such Distribution
Date (based upon the Pool Percentage).
Principal Prepayment: Any Mortgagor payment of principal (other than a
Balloon Payment) or other recovery of principal on a Mortgage Loan that is
recognized as having been received or recovered in advance of its scheduled Due
Date and applied to reduce the principal balance of the Mortgage Loan in
accordance with the terms of the Mortgage Note and/or the Servicing Agreement.
Principal Remittance Amount: With respect to each Mortgage Pool and any
Distribution Date, (a) the sum of (i) all principal collected (other than
Payaheads) or advanced in respect of Scheduled Payments on the Mortgage Loans in
such Mortgage Pool during the related Collection Period (less unreimbursed
Advances due to the Servicer or the Trustee with respect to the related Mortgage
Loans, to the extent allocable to principal), (ii) all Principal Prepayments in
full or in part received during the related Prepayment Period, (iii) the
outstanding principal balance of each Mortgage Loan that was purchased from the
Trust Fund during the related Prepayment Period, (iv) the portion of any
Substitution Amount paid with respect to any Deleted Mortgage Loan during the
related Prepayment Period allocable to principal, and (v) all Net Liquidation
Proceeds, Insurance Proceeds and other recoveries collected with respect to such
Mortgage Loans during the related Prepayment Period, to the extent allocable to
principal, as reduced by (b) for each Mortgage Pool, to the extent the Interest
Remittance Amount is less than amounts reimbursable to the Trustee pursuant to
Section 4.04(c), the product of (i) the applicable Pool Percentage for such
Distribution Date and (ii) any amounts reimbursable during the related
Anniversary Year to the Trustee therefrom and not reimbursed from the Interest
Remittance Amount or otherwise.
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Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Prospectus: The prospectus supplement dated May 31, 2001, together with
the accompanying prospectus dated January 26, 2001, relating to the Class A2,
Class A-IO, Class M1, Class M2 and Class B Certificates.
Purchase Price: With respect to the purchase of a Mortgage Loan or
related REO Property pursuant to this Agreement, an amount equal to the sum of
(a) 100% of the unpaid principal balance of such Mortgage Loan and (b) accrued
interest thereon at the applicable Mortgage Rate, from the date as to which
interest was last paid to (but not including) the Due Date in the Collection
Period immediately preceding the related Distribution Date. The Guarantor or the
Servicer (or the Trustee, if applicable) shall be reimbursed from the Purchase
Price for any Mortgage Loan or related REO Property for any Guarantor
Reimbursement Amounts, Advances and Servicing Advances made under this Agreement
or the Servicing Agreement, together with any accrued and unpaid compensation
due to the Trustee and the Servicer hereunder or thereunder.
QIB: As defined in Section 3.03(c).
Qualified GIC: A guaranteed investment contract or surety bond
providing for the investment of funds in the Certificate Account and insuring a
minimum, fixed or floating rate of return on investments of such funds, which
contract or surety bond shall:
(i) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency in one
of its two highest rating categories or, if such insurance company has
no long-term debt, whose claims paying ability is rated by each Rating
Agency in one of its two highest rating categories, and whose
short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide that the Trustee may exercise all of the rights
under such contract or surety bond without the necessity of taking any
action by any other Person;
(iii) provide that if at any time the then current credit
standing of the obligor under such guaranteed investment contract is
such that continued investment pursuant to such contract of funds would
result in a downgrading of any rating of the Certificates, the Trustee
shall terminate such contract without penalty and be entitled to the
return of all funds previously invested thereunder, together with
accrued interest thereon at the interest rate provided under such
contract to the date of delivery of such funds to the Trustee;
(iv) provide that the Trustee's interest therein shall be
transferable to any successor trustee hereunder; and
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(v) provide that the funds reinvested thereunder and accrued
interest thereon be returnable to the Certificate Account not later
than the Business Day prior to any Distribution Date.
Qualifying Substitute Mortgage Loan: In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement,
a Mortgage Loan that, on the date of such substitution, (i) has an outstanding
Scheduled Principal Balance (or in the case of a substitution of more than one
mortgage loan for a Deleted Mortgage Loan, an aggregate Scheduled Principal
Balance), after application of all Scheduled Payments due during or prior to the
month of substitution, not in excess of, and not more than 5% less than, the
outstanding Scheduled Principal Balance of the Deleted Mortgage Loan as of the
Due Date in the calendar month during which the substitution occurs, (ii) has a
Mortgage Rate not less than the Mortgage Rate on the Deleted Mortgage Loan,
(iii) if applicable, has a maximum Mortgage Rate not less than the maximum
Mortgage Rate on the Deleted Mortgage Loan, (iv) has a minimum Mortgage Rate not
less than the minimum Mortgage Rate of the Deleted Mortgage Loan, (v) has a
gross margin equal to or greater than the gross margin of the Deleted Mortgage
Loan, (vi) has a next adjustment date not later than the next adjustment date on
the Deleted Mortgage Loan, (vii) has the same Due Date as the Deleted Mortgage
Loan, (viii) has a remaining term to maturity not greater than (and not more
than one year less than) that of the Deleted Mortgage Loan, (ix) is current as
of the date of substitution, (x) has a Loan-to-Value Ratio as of the date of
substitution equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date, (xi) has been underwritten by any Transferor or
in accordance with the same underwriting criteria and guidelines as the Deleted
Mortgage Loan, (xii) has a risk grading determined by the Seller at least equal
to the risk grading assigned on the Deleted Mortgage Loan, (xiii) is secured by
the same property type as the Deleted Mortgage Loan, (xiv) conforms to each
representation and warranty applicable to the Deleted Mortgage Loan made in the
Mortgage Loan Sale and Assignment Agreement, (xv) for any Mortgage Loan to be
substituted into Pool 1, has an original Scheduled Principal Balance within the
maximum dollar amount limitations prescribed by the Guarantor for conforming
one- to four- family mortgage loans, (xvi) has the same or higher lien position
as the Deleted Mortgage Loan, (xvii) for any Mortgage Loan to be substituted
into Pool 1, such Mortgage Loan is approved by the Guarantor and (xviii) is an
MGIC-Insured Mortgage Loan if the Deleted Mortgage Loan was an MGIC-Insured
Mortgage Loan. In the event that one or more mortgage loans are substituted for
one or more Deleted Mortgage Loans, the amounts described in clause (i) hereof
shall be determined on the basis of aggregate Scheduled Principal Balances, the
Mortgage Rates described in clause (ii) hereof shall be determined on the basis
of weighted average Mortgage Rates, the risk gradings described in clause (xii)
hereof shall be satisfied as to each such mortgage loan, the terms described in
clause (viii) hereof shall be determined on the basis of weighted average
remaining term to maturity, the Loan-to-Value Ratios described in clause (x)
hereof shall be satisfied as to each such mortgage loan and, except to the
extent otherwise provided in this sentence, the representations and warranties
described in clause (xiv) hereof must be satisfied as to each Qualified
Substitute Mortgage Loan or in the aggregate, as the case may be.
Rating Agency: Each of Fitch, Xxxxx'x and S&P.
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Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
equal to (i) the unpaid principal balance of such Mortgage Loan as of the date
of liquidation, minus (ii) Liquidation Proceeds received, to the extent
allocable to principal, net of amounts that are reimbursable therefrom to the
Servicer with respect to such Mortgage Loan (other than Advances of principal)
including expenses of liquidation. In determining whether a Realized Loss is a
Realized Loss of principal, Liquidation Proceeds shall be allocated, first, to
payment of expenses related to such Liquidated Mortgage Loan, then to accrued
unpaid interest and finally to reduce the principal balance of the Mortgage
Loan.
Record Date: With respect to any Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC
pursuant to Section 10.01(a) hereof.
REMIC 1: As described in the Preliminary Statement.
REMIC 2: As described in the Preliminary Statement.
REMIC 3: As described in the Preliminary Statement.
REMIC Provisions: The provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: With respect to each Distribution Date, the 18th day
(or, if such 18th day is not a Business Day, the next succeeding Business Day)
of the month in which such Distribution Date occurs.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Required Reserve Fund Deposit: With respect to any Distribution Date on
which the Net Excess Spread is less than 0.25%, the amount, if any by which (a)
the product of 1.00% and the Aggregate Loan Balance for such date exceeds (b)
the amount on deposit in the Basis Risk Reserve Fund immediately prior to such
date. With respect to any Distribution Date on which the Net Excess Spread is
equal to or greater than 0.25%, the amount, if any, by which (i) $1,000 exceeds
(ii) the amount on deposit in the Basis Risk Reserve Fund immediately prior to
such date.
Residual Certificate: The Class R Certificate.
Responsible Officer: When used with respect to the Trustee, any Vice
President, Assistant Vice President, the Secretary, any assistant secretary, the
Treasurer, or any assistant treasurer, working in its corporate trust department
and having responsibility for the administration of this Agreement.
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Restricted Certificate: Any Class P, Class X or Class R Certificate.
Rolling Three Month Delinquency Rate: With respect to any Distribution
Date, the average of the Delinquency Rates for each of the three (or one and
two, in the case of the June 2001 and July 2001 Distribution Dates) immediately
preceding calendar months.
S&P: Standard & Poor's Credit Market Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor in interest.
Scheduled Payment: Each scheduled payment of principal and interest to
be paid by the Mortgagor on a Mortgage Loan, as reduced (except where otherwise
specified herein) by the amount of any related Debt Service Reduction (excluding
all amounts of principal and interest that were due on or before the Cut-off
Date whenever received) and, in the case of an REO Property, an amount
equivalent to the Scheduled Payment that would have been due on the related
Mortgage Loan if such Mortgage Loan had remained in existence.
Scheduled Principal Balance: With respect to (i) any Mortgage Loan as
of any Distribution Date, the principal balance of such Mortgage Loan on the
Cut-off Date, after giving effect to principal payments due on or before the
Cut-off Date, whether or not received, less an amount equal to principal
payments due after the Cut-off Date and on or before the Due Date in the related
Collection Period, whether or not received from the Mortgagor or advanced by the
Servicer, and all amounts allocable to unscheduled principal payments (including
Principal Prepayments, Liquidation Proceeds, Insurance Proceeds and condemnation
proceeds, in each case to the extent identified and applied prior to or during
the related Prepayment Period) and (ii) any REO Property as of any Distribution
Date, the Scheduled Principal Balance of the related Mortgage Loan on the Due
Date immediately preceding the date of acquisition of such REO Property by or on
behalf of the Trustee (reduced by any amount applied as a reduction of principal
on the Mortgage Loan). With respect to any Mortgage Loan and the Cut-off Date,
as specified in the Mortgage Loan Schedule.
Seller: Xxxxxx Brothers Holdings Inc., or any successor in interest.
Senior Certificate: Any Class A1, Class A2 or Class A-IO Certificate.
Senior Enhancement Percentage: With respect to any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the sum of
the aggregate Class Principal Amount of the Class M1, Class M2 and Class B
Certificates and the Overcollateralization Amount (which amount, for purposes of
this definition only, shall not be less than zero, and the denominator of which
is the Aggregate Loan Balance for such Distribution Date, in each such case
after giving effect to distributions on such Distribution Date.
Senior Principal Distribution Amount: With respect to each Mortgage
Pool, for any Distribution Date (a) prior to the Stepdown Date or if a Trigger
Event is in effect with respect to such Distribution Date, an amount equal to
100% of the related Principal Distribution Amount and (b) on or after the
Stepdown Date and as long as a Trigger Event is not in effect with respect to
such Distribution Date, the lesser of (x) the Principal Distribution Amount for
such Mortgage Pool and (y) the product of (i) the applicable Senior
Proportionate Percentage and (ii) the amount, if any, by which (x) the aggregate
Certificate Principal Amount of the Senior Certificates immediately prior to
such Distribution Date exceeds (y) the Senior Target Amount.
34
Senior Proportionate Percentage: With respect to Pool 1 and any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the Principal Distribution Amount for Pool 1 for such Distribution Date
and the denominator of which is the aggregate of the Principal Distribution
Amounts for Pool 1 and Pool 2 for such Distribution Date. With respect to Pool 2
and any Distribution Date, the fraction, expressed as a percentage, the
numerator of which is the Principal Distribution Amount for Pool 2 for such
Distribution Date and the denominator of which is the aggregate of the Principal
Distribution Amounts for Pool 1 and Pool 2 for such Distribution Date.
Senior Target Amount: With respect to each Distribution Date, an amount
equal to the lesser of (a) the product of (i) 87.00% and (ii) the Aggregate Loan
Balance for such Distribution Date and (b) the amount, if any, by which (i) the
Aggregate Loan Balance for such Distribution Date exceeds (ii) 0.25% of the
Cut-off Date Aggregate Loan Balance.
Servicer: Option One Mortgage Corporation, or any successor in
interest.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorney's fees and
disbursements) incurred by the Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
restoration, inspection and protection of the Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures and (iii) the
management and liquidation of the REO Property.
Servicing Agreement: The servicing agreement between the Servicer and
the Seller (and acknowledged by the Trustee and the Guarantor) attached hereto
as Exhibit E.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of the Servicing Fee Rate and the outstanding
principal balance of such Mortgage Loan as of the first day of the related
Collection Period.
Servicing Fee Rate: With respect to each Distribution Date, 0.50% per
annum.
Special Servicer: Any special servicer appointed by the Seller pursuant
to Section 9.04 hereof and the terms of the Servicing Agreement.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stepdown Date: The later to occur of (x) the Distribution Date in June
2004 and (y) the first Distribution Date on which the Senior Enhancement
Percentage (calculated for this purpose after giving effect to payments or other
recoveries in respect of the Mortgage Loans during the related Collection Period
but before giving effect to distributions on the Certificates on such
Distribution Date) is greater than or equal to 13.00%.
35
Subordinate Certificate: Any Class M1, Class M2, Class B, Class P or
Class X Certificate.
Subordinate Net Funds Cap: With respect to any Distribution Date on
which the Class A1 Certificates are outstanding, the weighted average of the
Pool 1 Net Funds Cap and the Pool 2 Net Funds Cap, weighted on the basis of the
Pool Subordinate Amount for each Mortgage Pool. After the Distribution Date on
which the Class Principal Amount of the Class A1 Certificates has been reduced
to zero, the "Subordinate Net Funds Cap" will equal the weighted average of the
Pool 1 Net Funds Cap and the Pool 2 Net Funds Cap, weighted on the basis of the
Pool Balance for each Mortgage Pool.
Substitution Amount: The amount, if any, by which the Scheduled
Principal Balance of a Deleted Mortgage Loan exceeds the Scheduled Principal
Balance of the related Qualifying Substitute Mortgage Loan, or aggregate
Scheduled Principal Balance, if applicable, plus unpaid interest thereon, and
any related unpaid Advances or Servicing Advances, unpaid Servicing Fees, or any
unpaid Guarantor Reimbursement Amounts.
Target Amount: With respect to any Distribution Date, the amount equal
to the Aggregate Loan Balance as of such Distribution Date minus the Targeted
Overcollateralization Amount for such Distribution Date.
Targeted Overcollateralization Amount: With respect to any Distribution
Date (x) beginning with the Distribution Date in March 2002 and prior to the
Stepdown Date, 0.25% of the Cut-off Date Balance and (y) on or after the
Stepdown Date and provided a Trigger Event is not in effect, the greater of (1)
0.50% of the Aggregate Loan Balance as of the related Distribution Date and (2)
0.25% of the Cut-off Date Balance and (z) on or after the Stepdown Date and
provided a Trigger Event is in effect, the Targeted Overcollateralization Amount
for the immediately preceding Distribution Date. The Targeted
Overcollateralization Amount for any Distribution Date prior to the Distribution
Date in March 2002 will be zero.
Tax Matters Person: The "tax matters person" as specified in the REMIC
Provisions.
Telerate Page 3750: The display currently so designated as "Page 3750"
on the Bridge Telerate Service (or such other page selected by the Guarantor as
may replace Page 3750 on that service for the purpose of displaying daily
comparable rates on prices).
Termination Price: As defined in Section 7.01.
Title Insurance Policy: A title insurance policy maintained with
respect to a Mortgage Loan.
Total Distribution Amount: With respect to any Distribution Date, the
sum of the aggregate of the Interest Remittance Amounts for such date and the
aggregate of the Principal Remittance Amounts for such date.
Transfer Agreement: As defined in the Mortgage Loan Sale and Assignment
Agreement.
36
Transferor: The seller of Mortgage Loans to the Seller or Xxxxxx
Brothers Bank FSB pursuant to the applicable Transfer Agreement.
Trigger Event: A Trigger Event shall be in effect with respect to any
Distribution Date if the Rolling Three Month Delinquency Rate as of the last day
of the immediately preceding month equals or exceeds 130% of the Senior
Enhancement Percentage for such Distribution Date.
Trust: The trust created pursuant to this Agreement, known as
"Amortizing Residential Collateral Trust 2001-BC4.".
Trust Fund: The corpus of the trust created pursuant to this Agreement,
consisting of the Mortgage Loans, the assignment of the Depositor's rights under
the applicable Transfer Agreement, the Mortgage Loan Sale and Assignment
Agreement and the Servicing Agreement, such amounts as shall from time to time
be held in the Certificate Account, any Custodial Account, any Escrow Account,
the Basis Risk Reserve Fund, the Insurance Policies, the Guarantee, any REO
Property and the other items referred to in, and conveyed to the Trustee under,
Section 2.01(a).
Trustee: Xxxxx Fargo Bank Minnesota, National Association, not in its
individual capacity but solely as Trustee, or any successor in interest, or if
any successor trustee or any co-trustee shall be appointed as herein provided,
then such successor trustee and such co-trustee, as the case may be.
Trustee Fee: As to any Distribution Date, an amount equal to the
product of (a) one-twelfth of the Trustee Fee Rate and (b) the aggregate
Scheduled Principal Balance of the related Mortgage Loans as of the first day of
the related Collection Period.
Trustee Fee Rate: 0.0025% per annum.
Underwriter: Xxxxxx Brothers Inc.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58, 65
Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department of
Labor.
Unpaid Basis Risk Shortfall: With respect to any Distribution Date and
any LIBOR Certificate, the aggregate of all Basis Risk Shortfalls with respect
to such Certificate remaining unpaid from previous Distribution Dates, plus
interest accrued thereon at the applicable Certificate Interest Rate (calculated
without giving effect to the applicable Net Funds Cap or Subordinate Net Funds
Cap).
Upper Tier REMIC: REMIC 3.
37
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
97% of all Voting Interests shall be allocated to the Certificates other than
the Class A-IO, Class P and Class X Certificates; provided, however, on any date
on which the Class A1 Certificates are outstanding or any amounts are owed the
Guarantor under this Agreement, all of the Voting Interests allocated to the
Class A1 Certificates shall be vested in the Guarantor. Voting Interests shall
be allocated among such Certificates (other than the Class R Certificates) based
on the product of (i) 98% and (ii) the fraction, expressed as a percentage, the
numerator of which is the aggregate Class Principal Amounts for each Class then
outstanding and the denominator is the Aggregate Loan Balance then outstanding.
The remainder of such percentage of Voting Interests shall be allocated to the
Class R Certificates. At all times during the term of this Agreement, 1% of all
Voting Interests shall be allocated to the Class A-IO Certificates, while they
remain outstanding, 1% of all Voting Rights shall be allocated to the Class P
Certificates and 1% of all Voting Interests shall be allocated to the Class X
Certificate. Voting Interests shall be allocated among the other Classes of
Certificates (and among the Certificates within each such Class) in proportion
to their Class Principal Amounts (or Certificate Principal Amounts) or
Percentage Interests.
Section 1.02 Calculations Respecting Mortgage Loans. Calculations required to be
made pursuant to this Agreement with respect to any Mortgage Loan in the Trust
Fund shall be made based upon current information as to the terms of the
Mortgage Loans and reports of payments received from the Mortgagor on such
Mortgage Loans and payments to be made to the Trustee as supplied to the Trustee
the Servicer. The Trustee shall not be required to recompute, verify or
recalculate the information supplied to it by the Servicer.
Section 1.03 Calculations Respecting Accrued Interest. Accrued interest on any
Class of Certificates other than the Class A-IO Certificates, shall be
calculated based upon a 360-day year and the actual number of days in each
Accrual Period. Accrued interest on the Class A-IO Certificates shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE II.
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee (or its designee, in the case of any MERS Mortgage Loans),
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust, all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all distributions of
principal and interest received on or with respect to the Mortgage Loans after
the Cut-off Date (in the case of Scheduled Payments) and on and after the
Cut-off Date (in the case of all other amounts in respect of principal) (other
than payments of principal and interest due on or before such respective date),
and all such payments due after such date but received prior to such date and
intended by the related Mortgagors to be applied after such date and all amounts
from time to time credited to and the proceeds of the Certificate Account and
all amounts from time to time credited to and the proceeds of the Certificate
Account, any Custodial Account, any Escrow Account and all amounts from time to
38
time credited to and the proceeds of any such Escrow Account, any Basis Risk
Reserve Fund established pursuant to Section 5.06 and all amounts from time to
time credited to and the proceeds of any such Basis Risk Reserve Fund, any REO
Property and the proceeds thereof, the Depositor's rights under any Insurance
Policies related to the Mortgage Loans, the Depositor's security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties, and any proceeds of the foregoing, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust, for
the benefit and use of the Holders of the Certificates and for the purposes and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, in exchange for the Trust Fund,
Certificates in the authorized denominations evidencing the entire ownership of
the Trust Fund.
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest under
the Mortgage Loan Sale and Assignment Agreement, including all rights of the
Seller under the Servicing Agreement and the Transfer Agreements to the extent
assigned under the Mortgage Loan Sale and Assignment Agreement. The Trustee
hereby accepts such assignment, and shall be entitled to exercise all rights of
the Depositor under the Mortgage Loan Sale and Assignment Agreement as if, for
such purpose, it were the Depositor. Both the Depositor and the Seller
acknowledge the Trustee's entitlement to exercise such rights under such
agreements.
(b) In connection with such transfer and assignment, the Depositor has
delivered to, and deposited with the Custodian the following documents or
instruments with respect to each Mortgage Loan (each a "Mortgage File") so
transferred and assigned:
(i) with respect to each Mortgage Loan, the original Mortgage
Note endorsed without recourse in proper form to the order of the
Trustee, or in blank (in each case, with all necessary intervening
endorsements as applicable), or with respect to any lost Mortgage Note,
an original lost note affidavit in the form annexed as Exhibit B-5 to
the Custodial Agreement stating that the original Mortgage Note was
lost, misplaced or destroyed, together with a copy of the related
Mortgage Note;
(ii) the original of any guarantee executed in connection with
the Mortgage Note, assigned to the Trustee;
(iii) with respect to any Mortgage Loan, the original recorded
Mortgage with evidence of recording indicated thereon, and the original
recorded power of attorney if the Mortgage was executed pursuant to a
power of attorney, with evidence of recording thereon. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the
Mortgage or such power of attorney with evidence of recording thereon
on or prior to the Closing Date because of a delay caused by the public
recording office where such Mortgage or such power of attorney has been
delivered for recordation or because such Mortgage or such power of
attorney has been lost, the Depositor shall deliver or cause to be
delivered to the Custodian, in the case of a delay due to recording, a
true copy of such Mortgage, pending delivery of the original thereof,
together with an Officer's Certificate of the Depositor certifying that
the copy of such Mortgage delivered to the Trustee (or its custodian)
is a true copy and that the original of such Mortgage has been
forwarded to the public recording office, or, in the case of a Mortgage
that has been lost, a copy thereof (certified as provided for under the
laws of the appropriate jurisdiction) and a written Opinion of Counsel
acceptable to the Trustee, the Depositor and the Guarantor (in the case
of any Pool 1 Mortgage Loan) that an original recorded Mortgage is not
required to enforce the Trustee's interest in the Mortgage Loan;
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(iv) the original of each assumption, modification, written
assurance or substitution agreement, if any, relating to the Mortgage
Loans, or, as to any assumption, modification, written assurance or
substitution agreement which cannot be delivered on or prior to the
Closing Date because of a delay caused by the public recording office
where such assumption, modification, written assurance or substitution
agreement has been delivered for recordation, a photocopy of such
assumption, modification, written assurance or substitution agreement,
pending delivery of the original thereof, together with an Officer's
Certificate of the Depositor certifying that the copy of such
assumption, modification or substitution agreement delivered to the
Trustee (or its custodian) is a true copy and that the original of such
agreement has been forwarded to the public recording office;
(v) with respect to each Non-MERS Mortgage Loan, the original
Assignment of Mortgage for each Mortgage Loan assumed either (a) in
blank, without recourse, or (B) to "Xxxxx Fargo Bank Minnesota,
National Association, as Trustee of the Amortizing Residential
Collateral Trust, 2001-BC4, without recourse;"
(vi) if applicable, such original intervening assignments of
the Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete chain
of assignment from the originator, or, in the case of an Intervening
Assignment that has been lost, a written Opinion of Counsel acceptable
to the Trustee and the Guarantor (in the case of any Pool 1 Mortgage
Loan) that such original Intervening Assignment is not required to
enforce the Trustee's interest in the Mortgage Loans;
(vii) with respect to any Mortgage Loan, the original
mortgagee title insurance policy or attorney's opinion of title and
abstract of title; and
(viii) the original of any security agreement, deed of trust
or equivalent instrument executed in connection with the Mortgage or as
to any security agreement or equivalent instrument that cannot be
delivered on or prior to the Closing Date because of a delay caused by
the public recording office where such document has been delivered for
recordation, a photocopy of such document, pending delivery of the
original thereof, together with an Officer's Certificate of the
Depositor certifying that the copy of such security agreement or
equivalent instrument delivered to the Trustee (or its custodian) is a
true copy and that the original of such document has been forwarded to
the public recording office.
The parties hereto acknowledge and agree that the form of endorsement
attached hereto as Exhibit B-6 to the Custodial Agreement is intended to effect
the transfer to the Trustee, for the benefit of the Certificateholders, of the
Mortgage Notes and the Mortgages.
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(c) (i) Assignments of Mortgage with respect to each Non-MERS Mortgage
Loan shall be recorded; provided, however, that such Assignments need not be
recorded if, on or prior to the Closing Date, the Depositor delivers, at its own
expense, an Opinion of Counsel (which must be from Independent counsel)
acceptable to the Trustee and the Guarantor, which states that recording in such
states is not required to protect the Trustee's interest in the related Mortgage
Loans. Subject to the preceding sentence, as soon as practicable after the
Closing Date (but in no event more than 3 months thereafter except to the extent
delays are caused by the applicable recording office), the Trustee, at the
expense of the Seller and with the cooperation of the Servicer, shall cause to
be properly recorded by the Servicer in each public recording office where the
related Mortgages are recorded each Assignment of Mortgage referred to in
subsection (b)(v) above with respect to each Non-MERS Mortgage Loan.
(ii) With respect to each MERS Mortgage Loan, the Trustee, at
the expense of the Depositor and at the direction and with the
cooperation of the Servicer, shall cause to be taken such actions as
are necessary to cause the Trustee to be clearly identified as the
owner of each such Mortgage Loan on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS.
(d) In instances where a Title Insurance Policy is required to be
delivered to the Trustee or the Custodian on behalf of the Trustee under clause
(b)(vii) above and is not so delivered, the Depositor will provide a copy of
such Title Insurance Policy to the Trustee, or to the Custodian on behalf of the
Trustee, as promptly as practicable after the execution and delivery hereof, but
in any case within 180 days of the Closing Date.
(e) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
Custodian on behalf of the Trustee, an Officer's Certificate which shall include
a statement to the effect that all amounts received in connection with such
prepayment that are required to be deposited in the Certificate Account pursuant
to Section 4.04 have been so deposited. All original documents that are not
delivered to the Trustee shall be held by the Servicer in trust for the benefit
of the Trustee, the Guarantor and the Certificateholders.
Section 2.02 Acceptance of Trust Fund by Trustee: Review of
Documentation for Trust Fund.
(a) The Trustee, by execution and delivery hereof, acknowledges receipt
by the Custodian on its behalf of the Mortgage Files pertaining to the Mortgage
Loans listed on the Mortgage Loan Schedule. The Custodian on behalf of the
Trustee has reviewed each Mortgage File to ascertain that all required documents
set forth in Section 2.01 have been received and appear on their face to contain
the requisite signatures by or on behalf of the respective parties thereto, and
will execute and deliver on the Closing Date to the Depositor and the Guarantor
an Initial Certification in the form annexed as Exhibit B-1 to the Custodial
Agreement to the effect that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan specifically identified in such
certification as not covered by such certification), (i) all of the applicable
documents specified in Section 2.01(b) are in its possession and (ii) such
documents have been reviewed by it and appear to relate to such Mortgage Loan.
The Custodian on behalf of the Trustee shall determine whether such documents
are executed and endorsed, but shall be under no duty or obligation to inspect,
review or examine any such documents, instruments, certificates or other papers
to determine that the same are valid, binding, legally effective, properly
endorsed, genuine, enforceable or appropriate for the represented purpose or
that they have actually been recorded or are in recordable form or that they are
other than what they purport to be on their face. None of the Trustee or the
Custodian shall have any responsibility for verifying the genuineness or the
legal effectiveness of or authority for any signatures of or on behalf of any
party or endorser.
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(b) If in the course of the review described in paragraph (a) above the
Custodian discovers any document or documents constituting a part of a Mortgage
File that is missing, does not appear regular on its face (i.e., is mutilated,
damaged, defaced, torn or otherwise physically altered) or appears to be
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule (each,
a "Material Defect"), the Custodian on behalf of the Trustee, discovering such
Material Defect shall promptly identify the Mortgage Loan to which such Material
Defect relates in the certificate delivered with the Interim Certificate in the
form annexed as Exhibit B-2 to the Custodial Agreement within 45 days of the
Closing Date. Within 90 days of its receipt of such notice, the Transferor, or,
if the Transferor does not do so, the Seller shall be required to cure such
Material Defect (and, in such event, the Seller shall provide the Trustee with
an Officer's Certificate confirming that such cure has been effected). If the
Transferor or the Seller, as applicable, does not so cure such Material Defect,
the Transferor, or, if the Transferor does not do so, the Seller, shall, if a
loss has been incurred with respect to such Mortgage Loan that would, if such
Mortgage Loan were not purchased from the Trust Fund, constitute a Realized
Loss, and such loss is attributable to the failure of the Seller to cure such
Material Defect, shall repurchase (in accordance with Section 2.05) the related
Mortgage Loan from the Trust Fund at the Purchase Price. A loss shall be deemed
to be attributable to the failure of the Seller to cure a Material Defect if, as
determined by the Seller, upon mutual agreement with the Trustee and the
Guarantor acting in good faith, absent such Material Defect, such loss would not
have been incurred. Within the two year period following the Closing Date, the
Seller may, in lieu of repurchasing a Mortgage Loan pursuant to this Section
2.02, substitute for such Mortgage Loan a Qualifying Substitute Mortgage Loan
subject to the provisions of Section 2.05. The failure of the Trustee or the
Custodian to give the notice contemplated herein within 45 days after the
Closing Date shall not affect or relieve the Seller of its obligation to
repurchase any Mortgage Loan pursuant to this Section 2.02 or any other Section
of this Agreement requiring the repurchase of Mortgage Loans from the Trust
Fund.
(c) Within 180 days following the Closing Date, the Custodian, shall
deliver to the Depositor and the Guarantor a Final Certification substantially
in the form annexed as Exhibit B-3 to the Custodial Agreement evidencing the
completeness of the Mortgage Files in its possession or control.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, the Custodian, the Guarantor or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
(e) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and deliver the applicable
certifications as provided in its Custodial Agreement.
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Section 2.03 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
the benefit of Certificateholders, and to the Guarantor, as of the Closing Date
or such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter
into and perform its obligations under this Agreement, and to create
the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Depositor; neither the execution and delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of
the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties or the
certificate of incorporation or bylaws of the Depositor;
(iii) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency,
except such as has been obtained, given, effected or taken prior to the
date hereof;
(iv) this Agreement has been duly executed and delivered by
the Depositor and, assuming due authorization, execution and delivery
by the Trustee, constitutes a valid and binding obligation of the
Depositor enforceable against it in accordance with its terms except as
such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(v) there are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened or likely to be asserted
against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will
be determined adversely to the Depositor and will if determined
adversely to the Depositor materially and adversely affect it or its
business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this
Agreement; and
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(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good and
marketable title thereto, and had full right to transfer and sell each
Mortgage Loan to the Trustee free and clear, subject only to (1) liens
of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien
for common charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage acceptable to
mortgage lending institutions in the area in which the related
Mortgaged Property is located and specifically referred to in the
lender's Title Insurance Policy or attorney's opinion of title and
abstract of title delivered to the originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly
subject which do not, individually or in the aggregate, materially
interfere with the benefits of the security intended to be provided by
the Mortgage, of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest, and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement.
(b) The representations and warranties of each Transferor with respect
to the Mortgage Loans in the applicable Transfer Agreement, which have been
assigned to the Trustee hereunder, were made as of the date of such Transfer
Agreement. To the extent that any fact, condition or event with respect to a
Mortgage Loan constitutes a breach of a representation or warranty made under a
Transfer Agreement or herein, the Trustee, the Guarantor or a Certificateholder
shall have the right to require that the Seller cure such breach or effect such
other remedy as is specified in subsection 1.04(e) of the Mortgage Loan Sale and
Assignment Agreement.
Section 2.04 Discovery of Breach. It is understood and agreed that the
representations and warranties (i) set forth in Section 2.03, (ii) of the Seller
set forth in the Mortgage Loan Sale and Assignment Agreement and assigned to the
Trustee by the Depositor hereunder and (iii) of each Transferor and of the
Servicer assigned by the Seller to the Depositor pursuant to the Mortgage Loan
Sale and Assignment Agreement and assigned to the Trustee by the Depositor
hereunder, shall each survive delivery of the Mortgage Files and the Assignment
of Mortgage of each Mortgage Loan to the Trustee and shall continue throughout
the term of this Agreement. Upon discovery by any of the Depositor, the
Guarantor, or the Trustee of a breach of any of such representations and
warranties that adversely and materially affects the value of the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties. Within 90 days of the discovery of a breach of any
representation or warranty (i) given to the Trustee and the Guarantor by the
Depositor under Section 2.03 or (ii) given by the Seller under the Mortgage Loan
Sale and Assignment Agreement or (iii) made by a Transferor to the Seller under
a Transfer Agreement, and assigned by the Seller to the Depositor under the
Mortgage Loan Sale and Assignment Agreement (and assigned by the Depositor to
the Trustee hereunder), the Depositor or the Seller shall (a) cure such breach
in all material respects, (b) repurchase such Mortgage Loan or any property
acquired in respect thereof from the Trustee at the Purchase Price or (c) within
the two year period following the Closing Date, substitute a Qualifying
Substitute Mortgage Loan for the affected Mortgage Loan, in each case in
accordance with Section 2.05. For purposes of the foregoing sentence, any breach
of the representations and warranties contained in Sections 1.04(c)(xl), (xli),
(xlii) and (li) of the Mortgage Loan Sale and Assignment Agreement shall be
deemed to adversely and materially affect the value of the related Mortgage
44
Loan. In the event of discovery of a breach of any representation and warranty
of any Transferor which has been assigned to the Trustee under this Agreement,
the Trustee may either enforce its rights against the Seller pursuant to the
immediately preceding sentence or enforce its rights under the related Transfer
Agreement for the benefit of Certificateholders; provided, however, if such
rights are enforced directly against the Seller such rights shall be subrogated
to the rights of the Trustee under the related Transfer Agreement.
Section 2.05 Repurchase, Purchase or Substitution of Mortgage Loans.
(a) With respect to any Mortgage Loan repurchased by the Depositor
pursuant to this Agreement, by the Seller pursuant to the Mortgage Loan Sale and
Assignment Agreement or by a Transferor pursuant to the applicable Transfer
Agreement, the principal portion of the Purchase Price of a Mortgage Loan will
be considered a Principal Prepayment and the Purchase Price shall be deposited
in the Custodial Account. The Trustee, upon receipt of the full amount of the
Purchase Price for a Deleted Mortgage Loan, or upon receipt of the Mortgage File
for a Qualifying Substitute Mortgage Loan substituted for a Deleted Mortgage
Loan (and any applicable Substitution Amount), shall release or cause to be
released and reassign to the Depositor, the Seller or the Transferor, as
applicable, the related Mortgage File for the Deleted Mortgage Loan and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as shall be necessary to vest in
such party or its designee or assignee title to any Deleted Mortgage Loan
released pursuant hereto, free and clear of all security interests, liens and
other encumbrances created by this Agreement, which instruments shall be
prepared by the Custodian, and the Trustee shall have no further responsibility
with respect to the Mortgage File relating to such Deleted Mortgage Loan. The
Seller indemnifies and holds the Trust Fund, the Trustee, the Depositor, the
Guarantor and each Certificateholder harmless against any and all taxes, claims,
losses, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgements, and any other costs, fees and expenses that the Trust Fund, the
Trustee, the Depositor, the Guarantor and any Certificateholder may sustain in
connection with any actions of the Seller relating to a repurchase of a Mortgage
Loan other than in compliance with the terms of this Section 2.05 and the
Mortgage Loan Sale and Assignment Agreement, to the extent that any such action
causes (i) any federal or state tax to be imposed on the Trust Fund, including
without limitation, any federal tax imposed on "prohibited transactions" under
Section 860F(a)(l) of the Code or on "contributions after the startup date"
under Section 860G(d)(l) of the Code, or (ii) the REMIC to fail to qualify as a
REMIC at any time that any Certificate is outstanding.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Trustee (or its custodian) pursuant to the terms of this
Article II in exchange for a Deleted Mortgage Loan: (i) the Depositor, the
Transferor or the Seller, as applicable, must deliver to the Trustee (or its
custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File and containing
the granting language set forth in Section 2.01(a); and (ii) the Depositor (or
the Seller) will be deemed to have made, with respect to such Qualified
Substitute Mortgage Loan, each of the representations and warranties made by it
45
with respect to the related Deleted Mortgage Loan. As soon as practicable after
the delivery of any Qualifying Substitute Mortgage Loan hereunder, the Trustee,
at the expense of the Depositor and with the cooperation of the Servicer, shall
(i) with respect to a Qualifying Substitute Mortgage Loan that is a Non-MERS
Mortgage Loan, cause the Assignment of Mortgage to be recorded by the Servicer
if required pursuant to Section 2.01(c)(i), or (ii) with respect to a Qualifying
Substitute Mortgage Loan that is a MERS Mortgage Loan, cause to be taken such
actions as are necessary to cause the Trustee to be clearly identified as the
owner of each such Mortgage Loan on the records of MERS if required pursuant to
Section 2.01(c)(ii).
(c) Notwithstanding any other provision of this Agreement, the right to
substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Qualifying Substitute Mortgage
Loan for a Deleted Mortgage Loan shall be made unless the Trustee and the
Guarantor have received an Opinion of Counsel (at the expense of the party
seeking to make the substitution) that, under current law, such substitution
will not (A) affect adversely the status of any REMIC established hereunder as a
REMIC, or of the related "regular interests" as "regular interests" in any such
REMIC, or (B) cause any federal or state tax to be imposed on the Trust Fund,
including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(l) of the Code or on "contributions after
the startup date" under Section 860G(d)(l) of the Code.
Section 2.06 Grant Clause. It is intended that the conveyance of the
Depositor's right, title and interest in and to property constituting the Trust
Fund pursuant to this Agreement shall constitute, and shall be construed as, a
sale of such property and not a grant of a security interest to secure a loan.
However, if such conveyance is deemed to be in respect of a loan, it is intended
that: (1) the rights and obligations of the parties shall be established
pursuant to the terms of this Agreement; (2) the Depositor hereby grants to the
Trustee for the benefit of the Holders of the Certificates a first priority
security interest in all of the Depositor's right, title and interest in, to and
under, whether now owned or hereafter acquired, the Trust Fund and all proceeds
of any and all property constituting the Trust Fund to secure payment of the
Certificates; and (3) this Agreement shall constitute a security agreement under
applicable law. If such conveyance is deemed to be in respect of a loan and the
Trust created by this Agreement terminates prior to the satisfaction of the
claims of any Person holding any Certificate, the security interest created
hereby shall continue in full force and effect and the Trustee shall be deemed
to be the collateral agent for the benefit of such Person, and all proceeds
shall be distributed as herein provided.
ARTICLE III.
THE CERTIFICATES
Section 3.01 The Certificates.
(a) The Certificates shall be issuable in registered form only and
shall be securities governed by Article 8 of the New York Uniform Commercial
Code. The Certificates will be evidenced by one or more certificates, beneficial
ownership of which will be held in the dollar denominations in the Certificate
Principal Amount or in the Percentage Interests, specified herein. Each Class of
Book-Entry Certificates will be issued in the minimum denominations in the
Certificate Principal Amount specified in the Preliminary Statement hereto and
in integral multiples of $1 in excess thereof. The Class A1 Certificate, Class P
Certificate, Class X Certificate and the Class R Certificate shall each be
issued as a single Certificate and maintained in definitive, fully registered
form in a denomination equal to 100% of the Class Principal Amount or Percentage
Interest of such Class. The Certificates may be issued in the form of
typewritten certificates.
46
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Each Certificate shall, on
original issue, be authenticated by the Trustee upon the order of the Depositor
upon receipt by the Trustee of the Mortgage Files described in Section 2.01. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by an
authorized officer of the Trustee or the Authenticating Agent, if any, by manual
signature, and such certification upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates executed
by the Depositor to the Trustee or the Authenticating Agent for authentication
and the Trustee or the Authenticating Agent shall authenticate and deliver such
Certificates as in this Agreement provided and not otherwise.
Section 3.02 Registration. The Trustee is hereby appointed, and hereby
accepts its appointment as, Certificate Registrar in respect of the Certificates
and shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Trustee may appoint a bank or
trust company to act as Certificate Registrar. A registration book shall be
maintained for the Certificates collectively. The Certificate Registrar may
resign or be discharged or removed and a new successor may be appointed in
accordance with the procedures and requirements set forth in Sections 6.06 and
6.07 hereof with respect to the resignation, discharge or removal of the Trustee
and the appointment of a successor Trustee. The Certificate Registrar may
appoint, by a written instrument delivered to the Holders, any bank or trust
company to act as co-registrar under such conditions as the Certificate
Registrar may prescribe; provided, however, that the Certificate Registrar shall
not be relieved of any of its duties or responsibilities hereunder by reason of
such appointment.
Section 3.03 Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall be
satisfactory to the Certificate Registrar. Upon the transfer of any Certificate
in accordance with the preceding sentence, the Trustee shall execute, and the
Trustee or any Authenticating Agent shall authenticate and deliver to the
transferee, one or more new Certificates of the same Class and evidencing, in
the aggregate, the same aggregate Certificate Principal Amount as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
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(b) A Certificate may be exchanged by the Holder thereof for any number
of new Certificates of the same Class, in authorized denominations, representing
in the aggregate the same Certificate Principal Amount as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the office of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of transfer duly executed by such Holder or his duly authorized attorney in such
form as is satisfactory to the Certificate Registrar. Certificates delivered
upon any such exchange will evidence the same obligations, and will be entitled
to the same rights and privileges, as the Certificates surrendered. No service
charge shall be made to a Certificateholder for any exchange of Certificates,
but the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
exchange of Certificates. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, and the Trustee or the Authenticating Agent
shall authenticate, date and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate acknowledges
the restrictions on the transfer of such Certificate set forth thereon and
agrees that it will transfer such a Certificate only as provided herein.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that takes
delivery in the form of a Definitive Certificate:
The Certificate Registrar shall register the transfer of a Restricted
Certificate if the requested transfer is (x) to the Depositor or the
Underwriter, an affiliate (as defined in Rule 144(a)(1) under the 0000 Xxx) of
the Depositor or the Underwriter or (y) being made to a "qualified institutional
buyer" (a "QIB") as defined in Rule 144A under the Securities Act of 1933, as
amended (the "Act") by a transferor who has provided the Trustee with a
certificate in the form of Exhibit F hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Trustee and the
Guarantor have received (A) a certificate substantially in the form of Exhibit H
hereto from such transferee or (B) an Opinion of Counsel satisfactory to the
Trustee, the Guarantor and the Depositor to the effect that the purchase and
holding of such a Certificate will not constitute or result in the assets of the
Trust Fund being deemed to be "plan assets" subject to the prohibited
transactions provisions of ERISA or Section 4975 of the Code and will not
subject the Trustee, the Guarantor or the Depositor to any obligation in
addition to those undertaken in the Agreement; provided, however, that the
Trustee will not require such certificate or opinion in the event that, as a
result of a change of law or otherwise, counsel satisfactory to the Trustee and
the Guarantor has rendered an opinion to the effect that the purchase and
holding of an ERISA-Restricted Certificate by a Plan or a Person that is
purchasing or holding such a Certificate with the assets of a Plan will not
constitute or result in a prohibited transaction under ERISA or Section 4975 of
the Code. The preparation and delivery of the certificate and opinions referred
to above shall not be an expense of the Trust Fund, the Trustee, the Guarantor
or the Depositor. Notwithstanding the foregoing, no opinion or certificate shall
be required for the initial issuance of the ERISA-Restricted Certificates.
48
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of Certificate.
(f) Notwithstanding anything to the contrary contained herein, (i) no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person is (A) not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Trustee with an effective Internal Revenue
Service Form 4224 or successor form at the time and in the manner required by
the Code (any such person who is not covered by clause (A) or (B) above is
referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale
or other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee an affidavit in substantially the form attached hereto as
Exhibit D-1 representing and warranting, among other things, that such
transferee is (i) neither a Disqualified Organization an agent or nominee acting
on behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder
(any such transferee, a "Permitted Transferee"), and (ii) a QIB or either the
Depositor or an affiliate (as defined in Rule 405 under the Act) thereof and the
proposed transferor shall deliver to the Trustee an affidavit in substantially
the form attached hereto as Exhibit D-2. In addition, the Trustee may (but shall
have no obligation to) require, prior to and as a condition of any such
transfer, the delivery by the proposed transferee of an Opinion of Counsel,
addressed to the Depositor, the Guarantor and the Trustee satisfactory in form
and substance to the Depositor and the Guarantor, that such proposed transferee
or, if the proposed transferee is an agent or nominee, the proposed beneficial
owner, is not a Disqualified Organization, agent or nominee thereof, or a
Non-permitted Foreign Holder. Notwithstanding the registration in the
Certificate Register of any transfer, sale, or other disposition of a Residual
Certificate to a Disqualified Organization, an agent or nominee thereof, or
Non-permitted Foreign Holder, such registration shall be deemed to be of no
legal force or effect whatsoever and such Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to, the
receipt of distributions on such Residual Certificate. Neither the Trustee nor
the Guarantor shall be under any liability to any person for any registration or
transfer of a Residual Certificate to a Disqualified Organization, agent or
nominee thereof or Non-permitted Foreign Holder or for the maturity of any
payments due on such Residual Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the provisions of the
Agreement, so long as the transfer was effected in accordance with this Section
3.03(f), unless the Trustee shall have actual knowledge at the time of such
transfer or the time of such payment or other action that the transferee is a
Disqualified Organization, or an agent or nominee thereof, or Non-permitted
Foreign Holder. The Trustee shall be entitled to recover from any Holder of a
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Residual Certificate that was a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder at the time it became a Holder or any
subsequent time it became a Disqualified Organization, agent or nominee thereof,
or Non-permitted Foreign Holder, all payments made on such Residual Certificate
at and after either such times (and all costs and expenses, including but not
limited to attorneys' fees, incurred in connection therewith). Any payment (not
including any such costs and expenses) so recovered by the Trustee shall be paid
and delivered to the last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this Section
3.03(f), the last preceding Permitted Transferee shall be restored to all rights
as Holder thereof retroactive to the date of such registration of transfer of
such Residual Certificate. The Trustee shall be under no liability to any Person
for any registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.03(f), for making any payment due on such
Certificate to the registered Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered upon receipt of the affidavit described in the preceding
paragraph of this Section 3.03(f).
(g) Each Holder of a Restricted Certificate, ERISA-Restricted
Certificate or Residual Certificate, or an interest therein, by such Holder's
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this section.
Section 3.04 Cancellation of Certificates. Any Certificate surrendered
for registration of transfer or exchange shall be cancelled and retained in
accordance with normal retention policies with respect to cancelled certificates
maintained by the Trustee or the Certificate Registrar.
Section 3.05 Replacement of Certificates. If (i) any Certificate is
mutilated and is surrendered to the Trustee or any Authenticating Agent or (ii)
the Trustee or any Authenticating Agent receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and there is delivered to the
Trustee or the Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Depositor and any Authenticating Agent that such destroyed, lost or
stolen Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Trustee or any Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and Certificate Principal
Amount. Upon the issuance of any new Certificate under this Section 3.05, the
Trustee and Authenticating Agent may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
or the Authenticating Agent) connected therewith. Any replacement Certificate
issued pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership in the applicable Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
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Section 3.06 Persons Deemed Owners. Subject to the provisions of
Section 3.09 with respect to Book-Entry Certificates, the Depositor, the
Guarantor, the Trustee, the Certificate Registrar and any agent of any of them
may treat the Person in whose name any Certificate is registered upon the books
of the Certificate Registrar as the owner of such Certificate for the purpose of
receiving distributions pursuant to Sections 5.01 and 5.02 and for all other
purposes whatsoever, and neither the Depositor, the Guarantor, the Trustee, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
Section 3.07 Temporary Certificates.
(a) Pending the preparation of definitive Certificates, upon the order
of the Depositor, the Trustee shall execute and shall authenticate and deliver
temporary Certificates that are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Certificates in lieu of which they are issued and with
such variations as the authorized officers executing such Certificates may
determine, as evidenced by their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in exchange
therefor a like aggregate Certificate Principal Amount of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same Class.
Section 3.08 Appointment of Paying Agent. The Trustee may appoint a
Paying Agent (which may be the Trustee) for the purpose of making distributions
to Certificateholders hereunder. The Trustee shall cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums held by
it for the payment to Certificateholders in an Eligible Account in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to the Certificateholders. All funds remitted by the Trustee to any such Paying
Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid shall
be returned on such Distribution Date to the Trustee. If the Paying Agent is not
the Trustee, the Trustee shall cause to be remitted to the Paying Agent on or
before the Business Day prior to each Distribution Date, by wire transfer in
immediately available funds, the funds to be distributed on such Distribution
Date. Any Paying Agent shall be either a bank or trust company or otherwise
authorized under law to exercise corporate trust powers.
Section 3.09 Book-Entry Certificates.
(a) Each Class of Book-Entry Certificates, upon original issuance,
shall be issued in the form of one or more typewritten Certificates representing
the Book-Entry Certificates, to be delivered to The Depository Trust Company,
the initial Clearing Agency, by, or on behalf of, the Depositor. The Book-Entry
Certificates shall initially be registered on the Certificate Register in the
name of the nominee of the Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Book-Entry Certificates, except as provided in Section 3.09(c). Unless
Definitive Certificates have been issued to Certificate Owners of Book-Entry
Certificates pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09(a) shall be in full
force and effect;
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(ii) the Depositor, the Paying Agent, the Registrar and the
Trustee may deal with the Clearing Agency for all purposes (including
the making of distributions on the Book-Entry Certificates) as the
authorized representatives of the Certificate Owners and the Clearing
Agency shall be responsible for crediting the amount of such
distributions to the accounts of such Persons entitled thereto, in
accordance with the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions of
this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Unless and until Definitive Certificates are
issued pursuant to Section 3.09(c), the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 3.09(c), the Trustee
shall give all such notices and communications specified herein to be given to
Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to discharge properly its
responsibilities with respect to the Book-Entry Certificates, and (B) the
Trustee or the Depositor is unable to locate a qualified successor, (ii) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than 50% of the Class Principal Amount of a Class
of Book-Entry Certificates identified as such to the Trustee by an Officer's
Certificate from the Clearing Agency advise the Trustee and the Clearing Agency
through the Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Certificate Owners of a Class of Book-Entry Certificates, the Trustee
shall notify or cause the Certificate Registrar to notify the Clearing Agency to
effect notification to all Certificate Owners, through the Clearing Agency, of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of the Book-Entry Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the Trustee
shall issue the Definitive Certificates. Neither the Depositor nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Trustee, to the extent
applicable, with respect to such Definitive Certificates and the Trustee shall
recognize the holders of the Definitive Certificates as Certificateholders
hereunder.
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ARTICLE IV.
ADMINISTRATION OF THE TRUST FUND
Section 4.01 The Trustee Remittance Report.
(a) On the 5th Business Day prior to each Distribution Date (each, a
"Trustee Reporting Date"), by noon New York time, the Trustee shall furnish a
report (the "Trustee Remittance Report") in the form attached as Exhibit J to
this Agreement (together with a statement containing the information that is
required to be included in the statement to be prepared by the Trustee pursuant
to Section 4.03) to the Guarantor by electronic medium as agreed to by the
Trustee and the Guarantor.
(b) Subject to paragraph (d) below, if in any month the Trustee fails
to deliver the Trustee Remittance Report by noon New York time on the related
Trustee Reporting Date, the Guarantor shall use its best efforts to determine
the amount of any required Guarantor Payment. If on any Distribution Date the
Guarantor makes any Guarantor Payment as a result of such failure of the Trustee
to deliver the Trustee Remittance Report, the Trustee shall pay the Guarantor
from its own funds (not from the proceeds of the Trust Fund), not later than the
fourth Business Day following such Distribution Date, a $100 fee plus an amount
equal to the product of (i) the principal portion of such Guarantor Payment,
(ii) a percentage equal to (A) the Prime Rate plus 2.00% divided by (B) 365 and
(iii) the number of days between the Trustee Reporting Date and the date on
which the Guarantor received the Trustee Remittance Report.
(c) Subject to paragraph (d) below, if in any month the Trustee fails
to provide the Guarantor the Trustee Remittance Report on or prior to the
Trustee Reporting Date, the Trustee shall pay to the Guarantor the following
amounts: (i) upon the first such failure, $500; (ii) upon the second such
failure, $750; and (iii) upon the third such failure, $1,000; provided, however,
that the Trustee shall not be required to make any such payment upon the first
such failure during each successive two year period following the Closing Date.
The fourth consecutive such failure to provide a Trustee Remittance Report to
the Guarantor pursuant to Section 4.01(a) shall constitute an event of default
and permit the Guarantor to remove the Trustee for cause.
(d) The Trustee shall have no responsibility or liability (including
removal as Trustee) under paragraphs (b) and (c) of this Section 4.01 if the
Trustee's failure to timely deliver the Trustee Remittance Report is due to the
failure of the Servicer to furnish the Trustee with a report in accordance with
the Servicing Agreement.
Section 4.02 Cancellation of MGIC Insurance Policy. The Trustee or the
Guarantor may terminate the MGIC Insurance Policy if (i) MGIC's financial
strength rating from S&P or Xxxxx'x is downgraded below "AA-" or "Aa3",
respectively, and (ii) such downgrading of MGIC's financial strength rating
results in a downgrade in the rating assigned to the Certificates by the Rating
Agencies.
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Section 4.03 Reports to Certificateholders.
(a) On each Distribution Date, the Trustee shall make available via its
internet website, and shall forward to the Guarantor, a report setting forth the
following information, which information the Trustee will determine (on the
basis of information obtained from the Servicer) no later than one Business Day
prior to such Distribution Date:
(i) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates;
(ii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates set
forth in clause (i) allocable to principal, separately identifying the
aggregate amount of Principal Prepayments or other unscheduled
recoveries of principal included therein;
(iii) the aggregate amount of the distribution to be made on
such Distribution Date to the Holders of each Class of Certificates set
forth in clause (i) allocable to interest and the calculation thereof;
(iv) the amount, if any, of any distribution to the Holders of
the Class X Certificate and the Residual Certificate;
(v) the amount of Advances made by the Servicer or the Trustee
for the related Collection Period, the amount of unrecovered Advances
outstanding (after giving effect to Advances made on such Distribution
Date), and the aggregate amount of nonrecoverable advances for such
Distribution Date;
(vi) the Aggregate Loan Balance and the Pool Balance of each
Mortgage Pool as of the close of business on the last day of the
related Collection Period (after giving effect to the principal portion
of Scheduled Payments due during the related Collection Period, to the
extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period);
(vii) the Class Principal Amount of each Class of
Certificates, to the extent applicable, as of such Distribution Date
after giving effect to payments allocated to principal reported under
clause (ii) above, separately identifying any reduction of any of the
foregoing Certificate Principal Amounts due to Applied Loss Amounts;
(viii) the amount of all prepayment penalties or premiums
distributed to the Class P Certificates;
(ix) by Mortgage Pool and in the aggregate, the amount of
Realized Losses incurred with respect to the Mortgage Loans (x) in the
applicable Prepayment Period and (y) in the aggregate since the Cut-off
Date;
(x) cumulative Guarantor Payments after giving effect to
distributions to be made on such Distribution Date;
(xi) the amount of any Guarantor Reimbursement Amounts;
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(xii) with respect to any Guarantor Reimbursement Amounts paid
to the Guarantor on such Distribution Date, the amount, if any,
allocable to principal and the amount allocable to interest;
(xiii) the amount of the Servicing Fees, Trustee Fees, Loss
Mitigation Advisor's Fees, and MGIC Insurance Premiums paid or retained
during the Collection Period to which such distribution relates;
(xiv) by Mortgage Pool and in the aggregate, the number and
aggregate Scheduled Principal Balance of Mortgage Loans, as reported to
the Trustee by the Servicer, (a) remaining outstanding (b) Delinquent
30 to 59 days on a contractual basis, (c) Delinquent 60 to 89 days on a
contractual basis, (d) Delinquent 90 or more days on a contractual
basis, (e) as to which foreclosure proceedings have been commenced as
of the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs,
(f) in bankruptcy and (g) that are REO Properties;
(xv) the aggregate Scheduled Principal Balance of any Mortgage
Loans in either Mortgage Pool with respect to which the related
Mortgaged Property became an REO Property as of the close of business
on the last day of the related Prepayment Period;
(xvi) with respect to substitution of Mortgage Loans in the
preceding calendar month, the Scheduled Principal Balance of each
Deleted Mortgage Loan, and of each Qualifying Substitute Mortgage Loan;
(xvii) the aggregate outstanding Carryforward Interest, Net
Prepayment Interest Shortfalls, Net Prepayment Interest Excess Amounts,
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, if any, for
each Class of Certificates, after giving effect to the distribution
made on such Distribution Date;
(xviii) the Certificate Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates;
(xix) with respect to the MGIC-Insured Mortgage Loans, (1) the
amount of (a) claims filed under the MGIC Insurance Policy, (b) claims
paid under the MGIC Insurance Policy and (c) claims denied or curtailed
under the MGIC Insurance Policy on an aggregate basis during the
Collection Period to which such distribution relates and on a
cumulative basis over the term of this Agreement and (2) cancellation
of the MGIC Insurance Policy with respect to any Mortgage Loan insured
thereunder;
(xx) with respect to each Mortgage Pool, the Interest
Remittance Amount and Principal Remittance Amount applicable to such
Distribution Date; and
(xxi) the amount of any Overcollateralization Deficiency
Amount after giving effect to the distribution made on such
Distribution Date.
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In the case of information furnished pursuant to subclauses (i), (ii),
(iii) and (vii) above, the amounts shall be expressed as a dollar amount per
$1,000 of original principal amount of Certificates. On each Distribution Date,
the Trustee also will make available to the Guarantor a report listing any
Mortgage Loans with respect to which the MGIC Insurance Policy was cancelled
during the preceding Collection Period, provided that the Trustee has received
such information from the Servicer.
(b) Upon the reasonable advance written request of the Guarantor or any
Certificateholder that is a savings and loan, bank or insurance company, the
Trustee shall provide, or cause to be provided, (or, to the extent that such
information or documentation is not required to be provided by the Servicer
under the Servicing Agreement, shall use reasonable efforts to obtain such
information and documentation from the Servicer, and provide) to such
Certificateholder such reports and access to information and documentation
regarding the Mortgage Loans as such Certificateholder may reasonably deem
necessary to comply with applicable regulations of the Office of Thrift
Supervision or its successor or other regulatory authorities with respect to
investment in the Certificates; provided, however, that the Trustee shall be
entitled to be reimbursed by such Certificateholder or the Guarantor, as
applicable, for the Trustee's actual expenses incurred in providing such reports
and access.
(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Trustee shall
send to each Person who at any time during the calendar year was a
Certificateholder of record, in accordance with applicable regulations, a report
summarizing the items provided to Certificateholders pursuant to Section 4.03(a)
on an annual basis as may be required to enable such Holders to prepare their
federal income tax returns. Such information shall include the amount of
original issue discount accrued on each Class of Certificates and information
regarding the expenses of the Trust Fund.
(d) The Trustee shall prepare and file with the Internal Revenue
Service ("IRS"), on behalf of the Trust Fund, an application for an employer
identification number on IRS Form SS-4 or by any other acceptable method. The
Trustee, upon receipt from the IRS of the Notice of Taxpayer Identification
Number Assigned, shall upon request promptly forward a copy of such notice to
the Trustee, the Depositor and the Guarantor. The Trustee shall furnish such
other information as the Guarantor may reasonably request in such format as
reasonably requested by the Guarantor and any other information that is required
by the Code and regulations thereunder to be made available to
Certificateholders.
Section 4.04 Certificate Account.
(a) The Trustee shall establish and maintain in its name, as trustee, a
special segregated deposit trust account (the "Certificate Account") entitled
"Certificate Account, Xxxxx Fargo Bank Minnesota, National Association, as
Trustee, in trust for the benefit of the Holders of Amortizing Residential
Collateral Trust Mortgage Pass-Through Certificates, Series 2001-BC4" until
disbursed pursuant to the terms of this Agreement. The Certificate Account shall
be an Eligible Account. If the existing Certificate Account ceases to be an
Eligible Account, the Trustee shall establish a new Certificate Account that is
an Eligible Account within 15 Business Days and transfer all funds on deposit in
such existing Certificate Account into such new Certificate Account. The
Certificate Account shall relate solely to the Certificates issued hereunder and
funds in the Certificate Account shall be held separate and apart from and shall
not be commingled with any other monies including, without limitation, other
monies of the Trustee held under this Agreement.
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(b) The Trustee shall deposit or cause to be deposited into the
Certificate Account, no later than the Business Day following the Closing Date,
any amounts representing Scheduled Payments on the Mortgage Loans due after the
Cut-off Date and received by the Trustee on or before the Closing Date.
Thereafter, the Trustee shall deposit or cause to be deposited in the
Certificate Account on the applicable Remittance Date the following amounts
received or payments made by it (other than in respect of principal of and
interest on the Mortgage Loans due on or before the Cut-Off Date):
(i) all payments on account of principal, including Principal
Prepayments and late collections, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
(other than payments due prior to the Cut-off Date), including
Prepayment Premiums or penalties, net of the Servicing Fee and the MGIC
Insurance Premiums, if any, with respect to each such Mortgage Loan;
(iii) any unscheduled payment or other recovery with respect
to a Mortgage Loan not otherwise specified in this paragraph, including
all Liquidation Proceeds with respect to the Mortgage Loans and REO
Property, and all amounts received in connection with the operation of
any REO Property, net of (x) any unpaid Servicing Fees with respect to
such Mortgage Loans and (y) any amounts reimbursable to the Servicer
under the Servicing Agreement and retained by the Servicer;
(iv) all Insurance Proceeds;
(v) all Advances made by the Servicer pursuant to the
Servicing Agreement and all amounts paid by the Servicer pursuant to
Section 3.03(xi) of the Servicing Agreement; and
(vi) all proceeds of any Mortgage Loan repurchased by the
Depositor, the Seller or any other Person.
(c) The Trustee may, from time to time, make, or cause to be made,
withdrawals from the Certificate Account for the following purposes:
(i) to reimburse itself or the Servicer for Advances made by
it or by the Servicer pursuant to Section 4.03 or the Servicing
Agreement; the Trustee's or the Servicer's right to reimburse itself
pursuant to this subclause (i) is limited to amounts received on or in
respect of particular Mortgage Loans (including, for this purpose,
Liquidation Proceeds and amounts representing Insurance Proceeds with
respect to the property subject to the related Mortgage) which
represent late recoveries (net of the Servicing Fee) of payments of
principal or interest respecting which any such Advance was made, it
being understood, in the case of any such reimbursement, that the
Trustee's or Servicer's right thereto shall be prior to the rights of
the Certificateholders;
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(ii) to reimburse itself or the Servicer, following a final
liquidation of a Mortgage Loan, for any amounts advanced by it or by
the Servicer that it determines in good faith will not be recoverable
from amounts representing late recoveries of payments of principal or
interest respecting the particular Mortgage Loan as to which such
Advance was made or from Liquidation Proceeds or Insurance Proceeds
with respect to such Mortgage Loan, it being understood, in the case of
any such reimbursement, that the Servicer's right thereto shall be
prior to the rights of the Certificateholders;
(iii) to reimburse the Servicer from Liquidation Proceeds for
Liquidation Expenses and for amounts expended by the Servicer pursuant
to the Servicing Agreement in good faith in connection with the
restoration of damaged property and, to the extent that Liquidation
Proceeds after such reimbursement exceed the unpaid principal balance
of the related Mortgage Loan, together with accrued and unpaid interest
thereon at the applicable Mortgage Rate less the Servicing Fee for such
Mortgage Loan to the Due Date next succeeding the date of its receipt
of such Liquidation Proceed;
(iv) to reimburse itself or any Servicer for expenses incurred
by and recoverable by or reimbursable to it or any Servicer pursuant to
the Servicing Agreement, or to reimburse itself for any expenses
reimbursable to it pursuant to Section 4.04(c); provided, however, that
the Trustee's reimbursement for any amounts in excess of the annual cap
described in clause (b) of the definition of "Interest Remittance
Amount" in any Anniversary Year shall be made pursuant to Section
5.02(b) and 5.02(c) hereof;
(v) to pay to the Depositor, the Seller or the Transferor, as
applicable, with respect to each Mortgage Loan or REO Property acquired
in respect thereof that has been purchased pursuant to this Agreement,
all amounts received thereon and not distributed on the date on which
the related repurchase was effected, and to pay to the applicable
Person any Advances to the extent specified in the definition of
Purchase Price;
(vi) to make distributions to Certificateholders pursuant to
Article V;
(vii) to make payment or reimbursement to itself and others
pursuant to any provision of this Agreement;
(viii) to withdraw funds deposited in error in the Certificate
Account;
(ix) to clear and terminate the Certificate Account pursuant
to Section 7.02; and
(x) to reimburse the Servicer for such amounts as are due
thereto under the Servicing Agreement and have not been retained by or
paid to the Servicer, to the extent provided in the Servicing
Agreement.
In connection with withdrawals pursuant to subclauses (i), (ii), (iii),
and (v) above, the Trustee's, the Servicer's or such other specified Person's
entitlement thereto is limited to collections or other recoveries on the related
Mortgage Loan. The Trustee shall therefore keep and maintain a separate
accounting for each Mortgage Loan for the purpose of justifying any withdrawal
from the Certificate Account it maintains pursuant to such subclause (i), (ii),
(iii), and (v).
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(d) The Trustee may invest, or cause to be invested, funds held in the
Certificate Account at the direction of the Depositor (acceptable to the
Guarantor), which funds, if invested, shall be invested in Eligible Investments
(which may be obligations of the Trustee). All such investments must be payable
on demand or mature no later than the next Distribution Date, and shall not be
sold or disposed of prior to their maturity. All such Eligible Investments will
be made in the name of the Trustee (in its capacity as such) or its nominee. All
income and gain realized from any such investment shall be compensation to the
Trustee and shall be subject to its withdrawal on any Distribution Date. The
amount of any losses incurred in respect of any such investments shall be paid
by the Trustee for deposit in the Certificate Account out of its own funds,
without any right of reimbursement therefor, immediately as realized. In the
event that the Depositor does not provide written direction to the Trustee
pursuant to this Section, all funds on deposit in the Certificate Account shall
be invested in a money market or common trust fund as described in paragraph
(ix) of the definition of "Eligible Investment" set forth in Article I.
ARTICLE V.
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01 Distributions Generally.
(a) Subject to Section 7.01 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee or the Paying Agent shall
make distributions in accordance with this Article V. Except in the case of the
Class A1 Certificates, such distributions shall be made by check mailed to each
Certificateholder's address as it appears on the Certificate Register of the
Certificate Registrar (which shall initially be the Trustee) or, upon written
request made to the Trustee at least five Business Days prior to the related
Record Date by any Certificateholder owning an aggregate initial Certificate
Principal Amount of at least $2,500,000, in the case of a Class A-IO
Certificate, a Percentage Interest in the Class Notional Amount of not less than
10%, and in the case of a Class X Certificate or Class P Certificate, a
Percentage Interest of 100%, by wire transfer in immediately available funds to
an account specified in the request and at the expense of such
Certificateholder; provided, however, that the final distribution in respect of
any Certificate shall be made only upon presentation and surrender of such
Certificate at the Corporate Trust Office; provided, further, that the foregoing
provisions shall not apply to any Class of Certificates as long as such
Certificate remains a Book-Entry Certificate in which case all payments shall be
made through the Clearing Agency and its Clearing Agency Participants.
Distributions in respect of the Class A1 Certificates shall be made by wire
transfer in immediately available funds no later than 12:00 p.m. EST on each
Distribution Date to an account specified by the Holder thereof. Except in case
of the Class A1 Certificates, wire transfers will be made at the expense of the
Holder requesting such wire transfer by deducting a wire transfer fee from the
related distribution. The cost of any wire transfer made to the Holder of a
Class A1 Certificate shall be borne by the Trustee and the Trustee shall be
reimbursed for such expense by the Trust Fund. Notwithstanding such final
payment of principal of any of the Certificates, each Residual Certificate will
remain outstanding until the termination of each REMIC and the payment in full
of all other amounts due with respect to the Residual Certificate and at such
time such final payment in retirement of any Residual Certificate will be made
only upon presentation and surrender of such Certificate at the Trustee's office
at Sixth Avenue and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000 Attention: Corporate
Trust Services: ARC 2001-BC4.
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(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in proportion
to their respective initial Class Principal Amounts or Percentage Interests.
Section 5.02 Distributions from the Certificate Account.
(a) On each Distribution Date the Trustee (or the Paying Agent on
behalf of the Trustee) shall withdraw from the Certificate Account the Total
Distribution Amount and shall allocate such amount to the interests issued in
respect of REMIC 1, REMIC 2 and REMIC 3 and shall distribute such amount as
specified in this Section. All allocations and distributions made between and
with respect to Pool 1 and Pool 2 in this Section 5.02 shall be made
concurrently.
(b) On each Distribution Date, the Trustee shall distribute the
Interest Remittance Amount for Pool 1 for such date in the following order of
priority:
(i) to the Trustee, the product of (a) the Trustee Fee divided
by twelve and (b) the Pool Percentage for Pool 1 for such Distribution
Date;
(ii) to the Guarantor, the Guarantee Fee payable with respect
to the Class A1 Certificates for such Distribution Date;
(iii) to the Guarantor, previously unreimbursed Guarantor
Reimbursement Amounts;
(iv) concurrently, to the Class A1 Certificates and the
A-IO(1) Component, Current Interest (taking into account the Pool 1 Net
Funds Cap, if applicable) for such Class and Component and such
Distribution Date and any Carryforward Interest for such Class and
Component and such Distribution Date;
(v) concurrently, to the Class A2 Certificates and the A-IO(2)
Component, Current Interest (taking into account the Pool 2 Net Funds
Cap, if applicable) for such Class and Component and such Distribution
Date and any Carryforward Interest for such Class and Component and
such Distribution Date;
(vi) to the Class M1 Certificates, Current Interest (taking
into account the Subordinate Net Funds Cap, if applicable) for such
Class and such Distribution Date;
(vii) to the Class M2 Certificates, Current Interest (taking
into account the Subordinate Net Funds Cap, if applicable) for such
Class and such Distribution Date;
(viii) to the Class B Certificates, Current Interest (taking
into account the Subordinate Net Funds Cap, if applicable) for such
Class and such Distribution Date;
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(ix) to the Loss Mitigation Advisor, the product of (a) the
Loss Mitigation Advisor's Fee divided by twelve and (b) the Pool
Percentage for Pool 1 for such Distribution Date;
(x) to the Trustee, any amounts reimbursable pursuant to
Section 4.04(c) and not previously reimbursed to the Trustee; and
(xi) for application as part of Monthly Excess Cashflow for
such Distribution Date, as provided in subsection (e) of this Section,
any Interest Remittance Amount for Pool 1 remaining after application
pursuant to clauses (i) through (x) above.
(c) On each Distribution Date, the Trustee shall distribute the
Interest Remittance Amount for Pool 2 for such date in the following order of
priority:
(i) to the Trustee, the product of (a) the Trustee Fee divided
by twelve and (b) the Pool Percentage for Pool 2 for such Distribution
Date;
(ii) concurrently, to the Class A2 Certificates and the
A-IO(2) Component, Current Interest (taking into account the Pool 2 Net
Funds Cap, if applicable) for such Class and Component and such
Distribution Date and any Carryforward Interest for such Class and
Component and such Distribution Date;
(iii) concurrently, to the Class A1 Certificates and the
A-IO(1) Component, Current Interest (taking into account the Pool 1 Net
Funds Cap, if applicable) for such Class and Component and such
Distribution Date and any Carryforward Interest for such Class and
Component and such Distribution Date;
(iv) to the Class M1 Certificates, Current Interest (taking
into account the Subordinate Net Funds Cap, if applicable) for such
Class and such Distribution Date;
(v) to the Class M2 Certificates, Current Interest (taking
into account the Subordinate Net Funds Cap, if applicable) for such
Class and such Distribution Date;
(vi) to the Class B Certificates, Current Interest (taking
into account the Subordinate Net Funds Cap, if applicable) for such
Class and such Distribution Date;
(vii) to the Loss Mitigation Advisor, the product of (a) the
Loss Mitigation Advisor's Fee divided by twelve and (b) the Pool
Percentage for Pool 2 for such Distribution Date;
(viii) to the Trustee, any amounts reimbursable pursuant to
Section 4.04(c) and not previously reimbursed to the Trustee; and
(ix) for application as part of Monthly Excess Cashflow for
such Distribution Date, as provided in subsection (e) of this Section,
any Interest Remittance Amount for Pool 2 remaining after application
pursuant to clauses (i) through (viii) above.
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(d) On each Distribution Date, the Trustee shall distribute the
Principal Distribution Amount with respect to each Mortgage Pool for such date
as follows:
(i) On each Distribution Date (a) prior to the Stepdown Date
or (b) with respect to which a Trigger Event is in effect, the Trustee
will make the following distributions:
For Pool 1: Until the aggregate Certificate Principal
Amount of the Class A1, Class A2, Class M1, Class M2 and Class
B Certificates equals the Target Amount for such Distribution
Date, the Principal Distribution Amount for Pool 1 will be
distributed in the following order of priority:
(A) to the Class A1 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(B) to the Class A2 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(C) to the Class M1 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(D) to the Class M2 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(E) to the Class B Certificates, until the
Class Principal Amount of such Class has been reduced
to zero; and
(F) for application as part of Monthly Excess
Cashflow for such Distribution Date, as provided in
subsection (e) of this Section, any Principal
Distribution Amount for Pool 1 remaining after
application pursuant to clauses (A) through (E)
above.
For Pool 2: Until the aggregate Certificate
Principal Amount of all of the Class A1, Class A2, Class M1,
Class M2 and Class B Certificates equals the Target Amount for
such Distribution Date, the Principal Distribution Amount for
Pool 2 will be distributed in the following order of priority:
(G) to the Class A2 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(H) to the Class A1 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(I) to the Class M1 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(J) to the Class M2 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
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(K) to the Class B Certificates, until the
Class Principal Amount of such Class has been reduced
to zero; and
(L) for application as part of Monthly Excess
Cashflow for such Distribution Date, as provided in
subsection (e) of this Section, any Principal
Distribution Amount remaining after application
pursuant to clauses (G) through (K) above.
Any Principal Distribution Amount remaining on any Distribution Date
after the Target Amount is achieved will be applied as part of Monthly Excess
Cashflow for such Distribution Date as provided in subsection (e) of this
Section.
(ii) On each Distribution Date (a) on or after the Stepdown
Date and (b) with respect to which a Trigger Event is not in effect,
the Principal Distribution Amounts for both Mortgage Pools for such
date will be distributed in the following order of priority:
(1) so long as the Class M1, Class M2 or
Class B Certificates are outstanding, to the Class A1
Certificates (from amounts generated by Pool 1,
except as provided below), and to the Class A2
Certificates (from amounts generated by Pool 2,
except as provided below), an amount equal to the
lesser of (x) the Principal Distribution Amount for
the related Mortgage Pool for such Distribution Date
and (y) the Senior Principal Distribution Amount for
such Mortgage Pool for such date, in each case until
the Class Principal Amount of such Class has been
reduced to zero; provided, however, to the extent
that the Principal Distribution Amount for a Mortgage
Pool exceeds the Senior Principal Distribution Amount
for such Mortgage Pool, such excess shall be applied
to the Senior Certificates of the other Mortgage
Pool, but in an amount not to exceed the Senior
Principal Distribution Amount related to such other
Mortgage Pool for such Distribution Date (as reduced
by any distributions pursuant to subclauses (x) or
(y) of this clause (1) on such Distribution Date);
provided, however, that if none of the Class M1,
Class M2 or Class B Certificates are outstanding,
then to the Class A1 and Class A2 Certificates, the
Principal Distribution Amount for the related
Mortgage Pool for such Distribution Date;
(2) to the Class M1 Certificates, an amount
equal to the lesser of (x) the excess of (a) the
aggregate Principal Distribution Amounts for each of
Pool 1 and Pool 2 for such Distribution Date over (b)
the amount distributed to the Class A1 and Class A2
Certificates on such date pursuant to clause (1)
above, and (y) the M1 Principal Distribution Amount
for such date, until the Class Principal Amount of
such Class has been reduced to zero;
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(3) to the Class M2 Certificates, an amount
equal to the lesser of (x) the excess of (a) the
aggregate Principal Distribution Amounts for each of
Pool 1 and Pool 2 for such Distribution Date over (b)
the amount distributed to the Class A1, Class A2 and
Class M1 Certificates on such date pursuant to
clauses (1) and (2) above, and (y) the M2 Principal
Distribution Amount for such date, until the Class
Principal Amount of such Class has been reduced to
zero;
(4) to the Class B Certificates, an amount
equal to the lesser of (x) the excess of (a) the
aggregate Principal Distribution Amounts for each of
Pool 1 and Pool 2 for such Distribution Date over (b)
the amount distributed to the Class A1, Class A2,
Class M1 and Class M2 Certificates on such date
pursuant to clauses (1) through (3) above, and (y)
the B Principal Distribution Amount for such date,
until the Class Principal Amount of such Class has
been reduced to zero; and
(5) for application as part of Monthly Excess
Cashflow for such Distribution Date, as provided in
subsection (e) of this Section, any Principal
Distribution Amount remaining after application
pursuant to clauses (1) through (4) above.
Notwithstanding the foregoing, on any Distribution Date on which the
Class Principal Amount of each Class of Certificates having a higher
priority of distribution has been reduced to zero, any remaining
Principal Distribution Amount will be distributed to the remaining
Certificates in the order of priority set forth above until the Class
Principal Amount of each such Class has been reduced to zero.
(e) On each Distribution Date, the Trustee shall distribute the Monthly
Excess Cashflow for such date in the following order of priority:
(i) for each Distribution Date occurring prior to the
Distribution Date in March 2002, until the aggregate Certificate
Principal Amount of the LIBOR Certificates equals the Aggregate Loan
Balance for such Distribution Date, in the following order of priority:
(A) concurrently, in proportion to their
respective Certificate Principal Amounts after giving
effect to previous principal distributions on such
Distribution Date pursuant to Section 5.02(d)(i), to
the Class A1 Certificates and to the Class A2
Certificates, until the respective Class Principal
Amount of each such Class has been reduced to zero;
(B) to the Class M1 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(C) to the Class M2 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero; and
(D) to the Class B Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
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(ii) for each Distribution Date occurring (a) on or after the
Distribution Date in March 2002, but before the Stepdown Date or (b) on
or after the Stepdown Date but for which a Trigger Event is in effect,
then until the aggregate Certificate Principal Amount of the LIBOR
Certificates equals the Aggregate Loan Balance for such Distribution
Date minus the Targeted Overcollateralization Amount for such
Distribution Date, in the following order of priority,
(A) concurrently, in proportion to their
respective Class Principal Amounts after giving
effect to previous principal distributions on such
Distribution Date pursuant to Section 5.02(d)(i), to
the Class A1 Certificates and to the Class A2
Certificates, until the respective Class Principal
Amount of each such Class has been reduced to zero;
(B) to the Class M1 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(C) to the Class M2 Certificates, until the
Class Principal Amount of such Class has been reduced
to zero; and
(D) to the Class B Certificates, until the
Class Principal Amount of such Class has been reduced
to zero;
(iii) for each Distribution Date occurring on or after the
Stepdown Date and for which a Trigger Event is not in effect, in the
following order of priority,
(A) concurrently, in proportion to their
respective Class Principal Amounts after giving
effect to previous distributions on such Distribution
Date pursuant to Section 5.02(d)(ii), to the Class A1
Certificates and the Class A2 Certificates until the
aggregate Class Principal Amount of such Senior
Certificates equals the Senior Target Amount;
(B) to the Class M1 Certificates, until the
Class Principal Amount for such Class equals the M1
Target Amount;
(C) to the Class M2 Certificates, until the
Class Principal Amount for such Class equals the M2
Target Amount; and
(D) to the Class B Certificates, until the
Class Principal Amount for such Class equals the B
Target Amount;
(iv) to the Basis Risk Reserve Fund, an amount equal to the
Basis Risk Payment for such Distribution Date, and then from the Basis
Risk Reserve Fund, in the following order of priority,
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(A) concurrently, in proportion to their
respective Class Principal Amounts after giving
effect to previous principal distributions on such
Distribution Date pursuant to Sections 5.02(d)(i) or
5.02(d)(ii), to the Class A1 and Class A2
Certificates, any applicable Basis Risk Shortfall and
Unpaid Basis Risk Shortfall for each such Class and
such Distribution Date;
(B) to the Class M1 Certificates, any
applicable Basis Risk Shortfall and Unpaid Basis Risk
Shortfall for such Distribution Date;
(C) to the Class M2 Certificates, any
applicable Basis Risk Shortfall and Unpaid Basis Risk
Shortfall for such Distribution Date; and
(D) to the Class B Certificates, any
applicable Basis Risk Shortfall and Unpaid Basis Risk
Shortfall for such Distribution Date;
(v) to the Class M1 Certificates, any Carryforward Interest
for such Class and such Distribution Date;
(vi) to the Class M1 Certificates, any Deferred Amount for
such Class and such Distribution Date;
(vii) to the Class M2 Certificates, any Carryforward Interest
for such Class and such Distribution Date;
(viii) to the Class M2 Certificates, any Deferred Amount for
such Class and such Distribution Date;
(ix) to the Class B Certificates, any Carryforward Interest
for such Class and such Distribution Date;
(x) to the Class B Certificates, any Deferred Amount for such
Class and such Distribution Date;
(xi) to the Class X Certificate, the Class X Distributable
Amount for such Distribution Date, together with any amounts withdrawn
from the Basis Risk Reserve Fund for distribution to such Class X
Certificate pursuant to Section 5.06(c) and (d) on such Distribution
Date; and
(xii) to the Class R Certificate, any amount remaining on such
date after application pursuant to clauses (i) through (xi) above.
(f) On each Distribution Date, an amount equal to the aggregate of all
Prepayment Premiums collected during the preceding Prepayment Period shall be
distributed to the Class P Certificate.
(g) If the failure of the Trustee to make distributions to the Class A1
Certificateholders in accordance with Sections 5.02(b) and 5.02(d) due to the
negligence or willful misconduct of the Trustee results in the Guarantor making
a Guarantor Payment, the Trustee shall be obligated to pay to the Guarantor an
amount equal to the related Guarantor Reimbursement Amount as a result of the
Trustee's failure to make such distribution, plus a $100 fee.
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Section 5.03 The Guarantee. On each Distribution Date following receipt
of a statement (as set forth in Section 4.03(a)) that indicates a Deficiency
Amount for such Distribution Date, the Guarantor shall distribute a Guarantor
Payment in an aggregate amount equal to the Deficiency Amount for such
Distribution Date directly to the Class A1 Certificateholders, without first
depositing such amount in the Certificate Account, as follows: (i) the portion
of any such Deficiency Amount related to clause (i) of the definition of
Deficiency Amount shall be distributed to the Class A1 Certificateholders based
on the Guaranteed Interest Distribution Amount payable on such Certificates with
respect to such Distribution Date; and (ii) the portion of any such Deficiency
Amount related to clause (ii) of the definition of Deficiency Amount shall be
distributed as provided in Section 5.02(d)(i)(A) or 5.02(d)(ii)(1), as
applicable.
Section 5.04 Allocation of Losses. On each Distribution Date, the Class
Principal Amounts of the Class M1, Class M2 and Class B Certificates will be
reduced by the amount of any Applied Loss Amount for such date, in the following
order of priority:
(a) to the Class B Certificates, until the Class Principal Amount
thereof has been reduced to zero;
(b) to the Class M2 Certificates, until the Class Principal Amount
thereof has been reduced to zero; and
(c) to the Class M1 Certificates, until the Class Principal Amount
thereof has been reduced to zero.
The Holders of the Subordinate Certificates that are or may be affected by a
Realized Loss on a Liquidated Mortgage Loan shall be deemed to have repurchased
the ownership interest in such Liquidated Mortgage Loan held by Holders of the
Senior Certificates. After such repurchase, the Trustee, if requested in writing
by such Holders of Subordinate Certificates, will direct the Servicer, provided
the Servicer is offered suitable indemnification and reimbursement for expenses
from such Holders of Subordinate Certificates, to seek a deficiency judgment if
permitted by law against the Mortgagor under such Liquidated Mortgage Loan on
behalf of the Holders of the Subordinate Certificates to the extent of any
Realized Loss.
Section 5.05 Advances by the Trustee.
(a) Advances shall be made in respect of each Remittance Date as
provided in the Servicing Agreement and herein. If, on any Determination Date,
the Servicer determines that any Scheduled Payments due during the related
Collection Period (other than Balloon Payments) have not been received, the
Servicer shall advance such amount to the extent provided in the Servicing
Agreement. If the Servicer determines that an Advance is required, it shall on
the Remittance Date immediately following such Determination Date remit to the
Trustee from its own funds for deposit in the Certificate Account immediately
available funds in an amount equal to such Advance, and remit such immediately
available funds to the Trustee for deposit in the Certificate Account. The
Servicer shall be entitled to be reimbursed from the Certificate Account for all
Advances made by it as provided in Section 4.04.
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(b) In the event that the Servicer fails for any reason to make an
Advance required to be made pursuant to the Servicing Agreement on or before the
Remittance Date, the Trustee in its capacity as successor Servicer pursuant to
Section 6.14, shall, on or before the related Distribution Date, deposit in the
Certificate Account an amount equal to the excess of (a) Advances required to be
made by the Servicer that would have been deposited in such Certificate Account
over (b) the amount of any Advance made by the Servicer with respect to such
Distribution Date; provided, however, that the Trustee shall be required to make
such Advance only if it is not prohibited by law from doing so and it has
determined that such Advance would be recoverable from amounts to be received
with respect to such Mortgage Loan, including late payments, Liquidation
Proceeds, Insurance Proceeds, or otherwise. The Trustee shall be entitled to be
reimbursed from the Certificate Account for Advances made by it pursuant to this
Section 5.05 as if it were the Servicer.
Section 5.06 Basis Risk Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, in trust for the benefit of the holders of the LIBOR Certificates, a
Basis Risk Reserve Fund, into which the Seller shall deposit $1,000. The Basis
Risk Reserve Fund shall be an Eligible Account, and funds on deposit therein
shall be held separate and apart from, and shall not be commingled with, any
other moneys, including, without limitation, other moneys of the Trustee held
pursuant to this Agreement.
(b) The Trustee shall make withdrawals from the Basis Risk Reserve Fund
to make distributions pursuant to Section 5.02(e)(iv).
(c) Funds in the Basis Risk Reserve Fund shall be invested in Eligible
Investments. Any earnings on such amounts shall be distributed to the Class X
Certificateholder pursuant to Section 5.02(e)(xi). The Class X Certificate shall
evidence ownership of the Basis Risk Reserve Fund for federal income tax
purposes and the Holder thereof shall direct the Trustee, in writing, as to
investment of amounts on deposit therein. The Class X Certificateholder shall be
liable for any losses incurred on such investments. In the absence of written
instructions from the Class X Certificateholder as to investment of funds on
deposit in the Basis Risk Reserve Fund, such funds shall be invested in the
Xxxxx Fargo Prime Investment Money Market Fund. Any amounts on deposit in the
Basis Risk Reserve Fund in excess of the Required Reserve Fund Deposit on any
Distribution Date shall be distributed to the Class X Certificateholder on the
following Distribution Date. For all Federal income tax purposes, amounts
transferred by REMIC 3 to the Basis Risk Reserve Fund shall be treated as
amounts distributed by REMIC 3 to the Class X Certificateholder.
(d) Upon termination of the Trust Fund, any amounts remaining in the
Basis Risk Reserve Fund shall be distributed to the Class X Certificateholder
pursuant to Section 5.02(e)(xi).
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ARTICLE VI.
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01 Duties of Trustee.
(a) The Trustee, except during the continuance of an Event of Default,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. Any permissive right of the Trustee provided for in
this Agreement shall not be construed as a duty of the Trustee. If an Event of
Default has occurred and has not otherwise been cured or waived, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs unless the Trustee is acting as Servicer, in which case it shall use
the same degree of care and skill as the Servicer is required to use under the
Servicing Agreement.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Servicer to the Trustee pursuant to the Servicing Agreement,
and shall not be required to recalculate or verify any numerical information
furnished to the Trustee pursuant to this Agreement or the Servicing Agreement.
Subject to the immediately preceding sentence, if any such resolution,
certificate, statement, opinion, report, document, order or other instrument is
found not to conform to the form required by this Agreement in a material manner
the Trustee shall take such action as it deems appropriate to cause the
instrument to be corrected, and if the instrument is not corrected to the
Trustee's satisfaction, the Trustee will provide notice thereof to the Guarantor
and will, at the expense of the Seller, which expense shall be reasonable given
the scope and nature of the required action, take such further action as
directed by the Guarantor.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful misconduct.
Notwithstanding anything in this Agreement to the contrary, the Trustee shall
not be liable for special, indirect or consequential losses or damages of any
kind whatsoever (including, but not limited to, lost profits). No provision of
this Agreement shall be construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of Holders of Certificates as provided
in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default (other than
resulting from a failure by the Servicer (i) to remit funds (or to make
Advances) or (ii) to furnish information to the Trustee when required
to do so) unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office, and such notice references the Holders of the Certificates and
this Agreement;
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(iii) No provision of this Agreement shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it; and
(iv) The Trustee shall not be responsible for any act or
omission of the Servicer.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided, however,
that the Trustee shall use its best efforts to remit to the Servicer and the
Guarantor upon receipt any such complaint, claim, demand, notice or other
document (i) which is delivered to the Corporate Trust Office of the Trustee,
(ii) of which a Responsible Officer has actual knowledge, and (iii) which
contains information sufficient to permit the Trustee to make a determination
that the real property to which such document relates is a Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Certificateholders of any Class holding Certificates which
evidence, as to such Class, Percentage Interests aggregating not less than 25%
as to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement.
(f) The Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability for the performance of any of its duties
hereunder or the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none of the
provisions contained in this Agreement shall in any event require the Trustee to
perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under the Servicing Agreement except during such
time, if any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Servicer in accordance with the
terms of this Agreement.
(g) Subject to Section 4.04, the Trustee shall not be held liable by
reason of any insufficiency in any account held by or on behalf of the Trustee
resulting from any investment loss on any Eligible Investment included therein
(except to the extent that the Trustee is the obligor and has defaulted
thereon).
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(h) Except as otherwise provided herein, the Trustee shall have no duty
(A) to see to any recording, filing, or depositing of this Agreement or any
agreement referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see to the maintenance of any
such recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available in the
Certificate Account, or (D) to confirm or verify the contents of any reports or
certificates of the Servicer delivered to the Trustee pursuant to the Servicing
Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties.
Section 6.02 Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 6.01:
(a) The Trustee may request, and may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) The Trustee may consult with counsel and any advice of its counsel
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(c) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(d) Unless an Event of Default shall have occurred and be continuing,
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document (provided the same appears regular on its face), unless requested in
writing to do so by Holders of at least a majority in Class Principal Amount or
Class Notional Amount (or Percentage Interest) of each Class of Certificates;
provided, however, that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or liability
or payment of such estimated expenses as a condition to proceeding. The
reasonable expense thereof shall be paid by the Holders requesting such
investigation;
(e) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, custodians
or attorneys, which agents, custodians or attorneys shall have any and all of
the rights, powers, duties and obligations of the Trustee conferred on them by
such appointment, provided that the Trustee shall continue to be responsible for
its duties and obligations hereunder to the extent provided herein, and provided
further that the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care by
the Trustee;
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(f) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto, in each case at the
request, order or direction of any of the Certificateholders pursuant to the
provisions of this Agreement, unless such Certificateholders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(g) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act; and
(h) The Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder.
Section 6.03 Trustee Not Liable for Certificates. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates)
or of any Mortgage Loan, or related document save that the Trustee represents
that, assuming due execution and delivery by the other parties hereto, this
Agreement has been duly authorized, executed and delivered by it and constitutes
its valid and binding obligation, enforceable against it in accordance with its
terms except that such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally, and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in equity
or at law. The Trustee shall not be accountable for the use or application by
the Depositor of funds paid to the Depositor in consideration of the assignment
of the Mortgage Loans to the Trust Fund by the Depositor or for the use or
application of any funds deposited into the Certificate Account, any Escrow
Account or any other fund or account maintained with respect to the
Certificates. The Trustee shall not be responsible for the legality or validity
of this Agreement or the validity, priority, perfection or sufficiency of the
security for the Certificates issued or intended to be issued hereunder. Except
as otherwise provided herein, the Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to record this Agreement.
Section 6.04 Trustee May Own Certificates. The Trustee and any
Affiliate or agent of the Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates and may transact banking and trust
business with the other parties hereto with the same rights it would have if it
were not Trustee or such agent.
Section 6.05 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be (i) an institution insured by the FDIC and (ii)
a corporation or national banking association, organized and doing business
under the laws of any State or the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or national banking
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association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with provisions of this Section, the Trustee shall resign immediately
in the manner and with the effect specified in Section 6.06.
Section 6.06 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the trust
hereby created by giving written notice thereof to the Depositor and the
Guarantor. Upon receiving such notice of resignation, the Depositor, with the
consent of the Guarantor, will promptly appoint a successor trustee by written
instrument, one copy of which instrument shall be delivered to the resigning
Trustee, one copy to the successor trustee, one copy to the Servicer and one
copy to the Guarantor. If no successor trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor or Guarantor, (ii) the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or (iii)
a tax is imposed or threatened with respect to the Trust Fund by any state in
which the Trustee or the Trust Fund held by the Trustee is located, then the
Guarantor may remove the Trustee and appoint a successor trustee by written
instrument, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
(c) If at any time the continued use of the Trustee would result in a
downgrading of the rating by the Rating Agencies of any Class of Certificates
with a rating, then the Depositor shall remove the Trustee and appoint a
successor trustee by written instrument, one copy of which instrument shall be
delivered to the Trustee so removed, one copy to the successor trustee and one
copy to the Guarantor.
(d) The Holders of more than 51% of the Aggregate Voting Interests of
the Certificates may at any time upon 30 days' written notice (sent by mail or
facsimile) to the Trustee and to the Depositor remove the Trustee by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor,
one copy to the Trustee so removed, and one copy to the Guarantor; the Guarantor
shall thereupon use its best efforts to appoint a mutually acceptable successor
trustee in accordance with this Section.
(e) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 6.07.
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Section 6.07 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 6.06 shall
execute, acknowledge and deliver to the Depositor and the Guarantor and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee (or assign to the Trustee its interest under the Custodial Agreement, to
the extent permitted thereunder) all Mortgage Files and documents and statements
related to each Mortgage File held by it hereunder, and shall duly assign,
transfer, deliver and pay over to the successor trustee the entire Trust Fund,
together with all necessary instruments of transfer and assignment or other
documents properly executed necessary to effect such transfer and such of the
record or copies thereof maintained by the predecessor trustee in the
administration hereof as may be requested by the successor trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the predecessor trustee shall execute and deliver such
other instruments and do such other things as may reasonably be required to more
fully and certainly vest and confirm in the successor trustee all such rights,
powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the outgoing Trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register, to the Rating Agencies and to the Guarantor.
The expenses of such mailing shall be borne by the outgoing Trustee.
Section 6.08 Merger or Consolidation of Trustee. Any Person into which
the Trustee may be merged or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Persons succeeding to the corporate trust business of
the Trustee, shall be the successor to the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided that
such Person shall be eligible under the provisions of Section 6.05.
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor, the Guarantor or the Certificateholders evidencing 51%
of the Class Principal Amount (or Percentage Interest) of each Class of
Certificates shall have the power from time to time to appoint one or more
Persons to act either as co-trustees jointly with the Trustee, or as separate
trustees, or as custodians, for the purpose of holding title to, foreclosing or
otherwise taking action with respect to any Mortgage Loan outside the state
where the Trustee has its principal place of business where such separate
trustee or co-trustee is necessary or advisable (or the Trustee has been advised
by the Guarantor or the Depositor that such separate trustee or co-trustee is
necessary or advisable) under the laws of any state in which a property securing
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a Mortgage Loan is located or for the purpose of otherwise conforming to any
legal requirement, restriction or condition in any state in which a property
securing a Mortgage Loan is located or in any state in which any portion of the
Trust Fund is located. The separate Trustees, co-trustees, or custodians so
appointed shall be trustees or custodians for the benefit of all the
Certificateholders and shall have such powers, rights and remedies as shall be
specified in the instrument of appointment; provided, however, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee. The obligation of the Trustee to make Advances pursuant to Section
5.05 and 6.14 hereof shall not be affected or assigned by the appointment of a
co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of moneys
shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee, co-trustee, or custodian jointly, except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations, including the holding of title to the Trust Fund or
any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or the Certificateholders evidencing 51% of
the Aggregate Voting Interests of the Certificates may at any time
accept the resignation of or remove any separate trustee, co-trustee or
custodian, so appointed by it or them, if such resignation or removal
does not violate the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VI. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
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(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to Certificateholders of the appointment shall be
required under Section 6.07 hereof, but any such separate trustee, co-trustee or
custodian must be acceptable to the Guarantor.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 6.12 hereof (which compensation shall not reduce any compensation
payable to the Trustee under such Section).
Section 6.10 Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents which
shall be authorized to act on behalf of the Trustee in authenticating
Certificates. Wherever reference is made in this Agreement to the authentication
of Certificates by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
must be a corporation organized and doing business under the laws of the United
States of America or of any state, having a combined capital and surplus of at
least $15,000,000, authorized under such laws to do a trust business, subject to
supervision or examination by federal or state authorities and acceptable to the
Guarantor.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee, the Guarantor and
the Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, the Guarantor and the Depositor. Upon receiving a notice
of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
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Depositor and the Guarantor and shall mail notice of such appointment to all
Holders of Certificates. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10. No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee. Any Authenticating Agent shall be
entitled to reasonable compensation for its services and, if paid by the
Trustee, it shall be a reimbursable expense pursuant to Section 6.12.
Section 6.11 Indemnification of Trustee. The Trustee and its directors,
officers, employees and agents shall be entitled to indemnification from the
Trust Fund for any loss, liability or expense incurred in connection with any
legal proceeding or incurred without negligence or willful misconduct on their
part, arising out of, or in connection with, the acceptance or administration of
the trusts created hereunder, including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance of
any of their powers or duties hereunder, provided that:
(a) with respect to any such claim, the Trustee shall have given the
Depositor, the Guarantor, and the Holders written notice thereof promptly after
the Trustee shall have knowledge thereof;
(b) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Depositor and the Guarantor in preparing
such defense; and
(c) notwithstanding anything to the contrary in this Section 6.11, the
Trust Fund shall not be liable for settlement of any such claim by the Trustee
entered into without the prior consent of the Depositor and the Guarantor, which
consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee and shall be
construed to include, but not be limited to any loss, liability or expense under
any environmental law.
Section 6.12 Fees and Expenses of Trustee. The Trustee will receive
compensation and reimbursement or payment of its expenses hereunder and under
the Custodial Agreement from the Depositor as provided in writing between the
Depositor and the Trustee.
Section 6.13 Collection of Monies. Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or receivable
by the Trustee pursuant to this Agreement. The Trustee shall hold all such money
and property received by it as part of the Trust Fund and shall distribute it as
provided in this Agreement. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Servicer, the
Trustee shall request the Servicer to make such distribution as promptly as
practicable or legally permitted. If the Trustee shall subsequently receive any
such amount, it may withdraw such request.
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Section 6.14 Trustee To Act; Appointment of Successor. If an Event of
Default shall occur, then, in each and every case, subject to applicable law, so
long as any such Event of Default shall not have been remedied within any period
of time prescribed by the Servicing Agreement, the Seller or the Trustee, by
notice in writing to the Servicer and the Guarantor may, and shall, if so
directed by Certificateholders evidencing more than 51% of the Aggregate Voting
Interests of the Certificates affected thereby, terminate all of the rights and
obligations of the Servicer under the Servicing Agreement and in and to the
Mortgage Loans and the proceeds thereof. The termination of the defaulting
Servicer, the appointment of a successor Servicer to assume the defaulting
Servicer's rights and duties under the Servicing Agreement, and the procedures
to be employed in effectuating the transfer of servicing and Mortgage Files (and
the payment of costs and expenses related thereto) shall be carried out in
accordance with Section 9.02 of the Servicing Agreements.
If any Event of Default shall occur, the Seller and the Trustee, upon
becoming aware of the occurrence thereof, shall promptly notify the other party,
the Rating Agencies and the Guarantor of the nature and extent of such Event of
Default.
Section 6.15 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as trustee
of an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
Section 6.16 Waiver of Defaults. Holders of 51% or more of the
Aggregate Voting Interests of Certificateholders may waive any default or Event
of Default by the Servicer in the performance of its obligations under the
Servicing Agreement, except that a default in the making of any required deposit
to the Certificate Account that would result in a failure of the Trustee to make
any required payment of principal of or interest on the Certificates may only be
waived with the consent of 100% of the affected Certificateholders. Upon any
such waiver of a past default, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 6.17 Notification to Holders. Upon termination of the Servicer
or appointment of a successor to the Servicer, in each case as provided herein,
the Trustee shall promptly mail notice thereof by first class mail to the
Certificateholders and to the Guarantor at their respective addresses appearing
on the Certificate Register. The Trustee shall also, within 45 days after the
occurrence of any Event of Default known to the Trustee, give written notice
thereof to Certificateholders, unless such Event of Default shall have been
cured or waived prior to the issuance of such notice and within such 45-day
period.
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Section 6.18 Directions by Certificateholders and Duties of Trustee
During Event of Default. Subject to the provisions of Section 8.01 hereof,
during the continuance of any Event of Default, Holders of Certificates
evidencing not less than 51% of the Aggregate Voting Interests of Certificates
affected thereby may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under the Servicing Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (i) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto and (ii) the
terminating of the Servicer or any successor servicer from its rights and duties
as servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided further,
that, subject to the provisions of Section 8.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, in accordance with
an Opinion of Counsel, determines that the action or proceeding so directed may
not lawfully be taken or if the Trustee in good faith determines that the action
or proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the non-assenting Certificateholders.
Section 6.19 Action Upon Certain Failures of the Servicer and Upon
Event of Default. In the event that the Trustee shall have actual knowledge of
any action or inaction of the Servicer that would become an Event of Default
upon the Servicer's failure to remedy the same after notice, the Trustee shall
give notice thereof to the Servicer and the Guarantor.
ARTICLE VII.
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund Upon
Purchase or Liquidation of All Mortgage Loans.
(a) The respective obligations and responsibilities of the Trustee
created hereby (other than the obligation of the Trustee to make payments to
Certificateholders as set forth in Section 7.02 shall terminate on the earlier
of (i) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property and (ii) the
sale of the property held by the Trust Fund in accordance with Section 7.01(b);
provided, however, that in no event shall the Trust Fund created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof. Any termination of the Trust
Fund shall be carried out in such a manner so that the termination of each REMIC
included therein shall qualify as a "qualified liquidation" under the REMIC
Provisions as evidenced by an Opinion of Counsel.
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(b) If at any time the monthly expenses incurred by the Servicer in
connection with servicing the Mortgage Loans exceeds the amount of its monthly
Servicing Fee (as evidenced by an Officer's Certificate of the Servicer
delivered to the Trustee and the Guarantor), but in no event earlier than the
Initial Optional Purchase Date, the Servicer, with the prior consent of the
Seller (which consent shall not be unreasonably withheld) has the option to
cause the Trust Fund to adopt a plan of complete liquidation pursuant to Section
7.03(a)(i) hereof to sell all of its property. Upon exercise of such option, the
property of the Trust Fund shall be sold to the Servicer at a price (the
"Termination Price") equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan on the day of such purchase plus interest accrued
thereon at the applicable Mortgage Rate with respect to any Mortgage Loan from
the Due Date in the Collection Period immediately preceding the related
Distribution Date to the date of such repurchase, (ii) the unpaid principal
balance of the Mortgage Loan related to any REO Property and any other property
held by any REMIC and (iii) any unpaid Servicing Fee and any amounts owing to
the Guarantor under this Agreement together with the amount of any Advances and
Servicing Advances made with respect to the Mortgage Loans that are reimbursable
to the Servicer. If the Servicer has not exercised such option by the close of
business on the third Distribution Date following the Initial Optional Purchase
Date, Aurora, with the prior consent of the Seller (which consent shall not be
unreasonably withheld) shall have the option to cause the Trust Fund to adopt a
plan of complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all
of its property to Aurora at the Termination Price. If Aurora elects to exercise
such right, then upon receipt of notice thereof the Trustee shall promptly
notify the Servicer thereof, in writing, and shall effect the transfer of the
Mortgage Loans and related property to Aurora as provided herein only if the
Trustee does not receive notification from the Servicer within ten Business Days
of the sending of such notice that the Servicer intends to promptly exercise its
option to purchase such Mortgage Loans and related property.
Section 7.02 Procedure Upon Termination of Trust Fund.
(a) Notice of any termination pursuant to the provisions of Section
7.01, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Trustee by first class mail to
Certificateholders mailed upon (x) the sale of all of the property of the Trust
Fund by the Trustee pursuant to Section 7.01(b) or (y) upon the final payment or
other liquidation of the last Mortgage Loan or REO Property in the Trust Fund.
Such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates of all amounts required to be distributed to
Certificateholders pursuant to Section 5.02 will be made upon presentation and
surrender of the Certificates at the Corporate Trust Office, and (B) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
at the office or agency of the Trustee therein specified. The Trustee shall give
such notice to the Guarantor and the Certificate Registrar at the time such
notice is given to Holders of the Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Certificates shall
terminate and the Trustee shall terminate the Certificate Account and any other
account or fund maintained with respect to the Certificates, subject to the
Trustee's obligation hereunder to hold all amounts payable to Certificateholders
in trust without interest pending such payment.
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(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to contact
the remaining Certificateholders concerning surrender of such Certificates, and
the cost thereof shall be paid out of the amounts distributable to such Holders.
If within two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee shall, subject to applicable state law
relating to escheatment, hold all amounts distributable to such Holders for the
benefit of such Holders. No interest shall accrue on any amount held by the
Trustee and not distributed to a Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section.
Section 7.03 Additional Trust Fund Termination Requirements.
(a) Any termination of the Trust Fund shall be effected in accordance
with the following additional requirements, unless the Trustee seeks (at the
request of the party exercising the option to purchase all of the Mortgage Loans
pursuant to Section 7.01(b)), and subsequently receives, an Opinion of Counsel
(at the expense of such requesting party), addressed to the Trustee and the
Guarantor to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 7.03 will not (i) result in the imposition of taxes
on any REMIC under the REMIC Provisions or (ii) cause any REMIC established
hereunder to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) The Trustee shall sell all of the assets of the Trust Fund
for cash and, within 90 days of such sale, shall distribute the
proceeds of such sale to the Certificateholders in complete liquidation
of the Trust Fund, REMIC 1, REMIC 2 and REMIC 3.
(ii) The Trustee shall attach a statement to the final Federal
income tax return for each of REMIC 1, REMIC 2 and REMIC 3 stating that
pursuant to Treasury Regulation ss. 1.860F-1, the first day of the
90-day liquidation period for each such REMIC was the date on which the
Trustee sold the assets of the Trust Fund.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby (i) authorizes the Trustee to take the action described in paragraph (a)
above and (ii) agrees to take such other action as may be necessary to
facilitate liquidation of each REMIC created under this Agreement, which
authorization shall be binding upon all successor Residual Certificateholders.
ARTICLE VIII.
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or this Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of this
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association, nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
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(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 51% of the Aggregate
Voting Interests of the Certificates shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the cost, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for sixty days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding and no direction inconsistent with such written
request has been given such Trustee during such sixty-day period by such
Certificateholders; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatever by virtue or by availing of any provision of this Agreement to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 8.02 Access to List of Holders.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class as
of the most recent Record Date.
(b) If three or more Holders (hereinafter referred to as "Applicants")
apply in writing to the Trustee, and such application states that the Applicants
desire to communicate with other Holders with respect to their rights under this
Agreement or under the Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, afford such
Applicants reasonable access during the normal business hours of the Trustee to
the most recent list of Certificateholders held by the Trustee or shall, as an
alternative, send, at the Applicants' expense, the written communication
proffered by the Applicants to all Certificateholders at their addresses as they
appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees with
the Depositor, the Guarantor, the Certificate Registrar and the Trustee that
neither the Depositor, the Guarantor, the Certificate Registrar nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was derived.
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Section 8.03 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and the Guarantor. Such instrument or instruments (as the action
embodies therein and evidenced thereby) are herein sometimes referred to as an
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agents shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee, if made in the manner provided in this Section. The Trustee shall
promptly notify the Guarantor of receipt of any such instrument by it, and shall
promptly forward a copy of such instrument to the other and the Guarantor.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the individual
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Guarantor, nor the Depositor
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
ARTICLE IX.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 9.01 Trustee To Retain Possession of Certain Insurance Policies and
Documents. The Trustee shall retain possession and custody of the originals of
the Primary Mortgage Insurance Policies or certificate of insurance if
applicable and any certificates of renewal as to the foregoing as may be issued
from time to time as contemplated by this Agreement. Until all amounts
distributable in respect of the Certificates have been distributed in full, the
Trustee (or the custodian as directed by the Trustee) shall also retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions of this Agreement. The Servicer shall deliver to the
Trustee (or the Custodian, if any, as directed by the Trustee), upon the
execution or receipt thereof the originals of the Primary Mortgage Insurance
Policies and any certificates of renewal thereof, and such other documents or
instruments that constitute portions of the Mortgage File that come into the
possession of the Servicer from time to time.
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Section 9.02 Preparation of Tax Returns and Other Reports.
(a) The Trustee shall prepare in accordance with the provisions of
Article X or cause to be prepared on behalf of the Trust Fund, based upon
information calculated in accordance with this Agreement pursuant to
instructions given by the Depositor, the Guarantor and the Trustee shall file,
federal tax returns and appropriate state income tax returns and such other
returns as may be required by applicable law relating to the Trust Fund, and the
Trustee shall forward copies to the Depositor and the Guarantor of all such
returns and Form 1099 information and such other information within the control
of the Trustee as the Depositor or the Guarantor may reasonably request in
writing, and shall forward to each Certificateholder such forms and furnish such
information within the control of the Trustee as are required by the Code and
the REMIC Provisions to be furnished to them, and the Trustee will prepare, to
the extent that it is familiar with applicable state requirements, and the
Trustee will file, annual reports (other than tax returns), if any, required by
applicable state authorities, will file copies of this Agreement with the
appropriate state authorities as may be required by applicable law, and will
prepare and disseminate to Certificateholders Form 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Trustee will indemnify the Trust for any liability of or
assessment against the Trust resulting from any error in any of such tax or
information returns resulting from errors in the information provided by such
Trustee (other than any such information that is delivered solely from
information provided by the Servicer).
(b) The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K. Within 15 days after each Distribution Date, the
Trustee shall, in accordance with industry standards, file with the Securities
and Exchange Commission (the "SEC") 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 30, 2002, the Trustee shall, in accordance with industry standards, file
a Form 15 Suspension Notification with respect to the Trust Fund, if applicable.
Prior to March 31, 2002, 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 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 the Depositor's control related to this Agreement
and the Mortgage Loans as the Trustee reasonably deems appropriate to prepare
and file all necessary reports with the SEC. The Trustee shall have no
responsibility to file any items other than those specified in this Section
9.02(b). Promptly after filing a Form 15 or other applicable form with the SEC
in connection with such termination, the Trustee shall deliver to the Depositor
a copy of such form together with copies of confirmations of receipt by the SEC
of each report filed therewith on behalf of the Trust Fund.
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Section 9.03 Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or
the receipt by the Servicer of a notification that payment in full has been
escrowed in a manner customary for such purposes for payment to
Certificateholders on the next Distribution Date, in accordance with the
Custodial Agreement, the Servicer will promptly notify the Custodian by a
certification (which certification shall include a statement to the effect that
all amounts received in connection with such payment that are required to be
deposited in the Certificate Account have been or will be so deposited) of a
Servicing Officer and shall request (on the form attached hereto as Exhibit C or
on the form attached to the Custodial Agreement) the Custodian, to deliver to
the Servicer the related Mortgage File. Upon receipt of such certification and
request, the Custodian shall promptly release the related Mortgage File to the
Servicer and the Trustee and the Custodian shall have no further responsibility
with regard to such Mortgage File. Upon any such payment in full, the Trustee is
authorized, and the Servicer, to the extent such authority is delegated to the
Servicer by the Trustee under the Servicing Agreement, is authorized, to give,
as agent for the Trustee, as the mortgagee under the Mortgage that secured the
Mortgage Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of such
payment, it being understood and agreed that no expenses incurred in connection
with such instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Certificate Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with Accepted Servicing
Practices and the Servicing Agreement, the Trustee shall execute such documents
as shall be prepared and furnished to the Trustee by the Servicer (in a form
reasonably acceptable to the Trustee) and as are necessary to the prosecution of
any such proceedings. The Trustee or the Custodian, shall, upon request of the
Servicer and delivery to the Trustee or the Custodian, of a trust receipt signed
by a Servicing Officer substantially in the form of Exhibit C (or the form
specified in the Custodial Agreement), release the related Mortgage File held in
its possession or control to the Servicer. Such trust receipt shall obligate the
Servicer to return the Mortgage File to the Trustee or the Custodian, as
applicable, when the need therefor by the Servicer no longer exists unless the
Mortgage Loan shall be liquidated, in which case, upon receipt of a certificate
of a Servicing Officer similar to that hereinabove specified, the trust receipt
shall be released by the Trustee or the Custodian, as applicable, to the
Servicer.
Section 9.04 Special Servicing of Delinquent Mortgage Loans. If
permitted under the terms of the Servicing Agreement, the Seller may appoint,
pursuant to the terms of the Servicing Agreement and with the written consent of
the Trustee and the Guarantor, a Special Servicer to special service any
Mortgage Loans which are more than 90 days delinquent. Any applicable
Termination Fee related to the termination of the Servicer and the appointment
of any Special Servicer shall be paid by the Seller. Any fees paid to any such
Special Servicer shall not exceed the Servicing Fee Rate.
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Section 9.05 Duties of the Loss Mitigation Advisor. The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint The Murrayhill Company as Loss Mitigation Advisor. For and on behalf of
the Depositor, the Trustee, the Guarantor and the Certificateholders, the Loss
Mitigation Advisor will provide reports and recommendations concerning Mortgage
Loans that are past due, as to which there has been commencement of foreclosure,
as to which there has been forbearance in exercise of remedies which are in
default, as to which any obligor is the subject of bankruptcy, receivership, or
an arrangement of creditors, or which have become REO Properties. Such reports
and recommendations will be based upon information provided pursuant to Loss
Mitigation Advisory Agreements to the Loss Mitigation Advisor by the Servicer.
The Loss Mitigation Advisor shall look solely to the Servicer for all
information and data (including loss and delinquency information and data) and
loan level information and data relating to the servicing of the Mortgage Loans.
Section 9.06 Limitation Upon Liability of the Loss Mitigation Advisor.
Neither the Loss Mitigation Advisor, nor any of the directors, officers,
employees or agents of the Loss Mitigation Advisor, shall be under any liability
to the Trustee, the Guarantor, the Certificateholders or the Depositor for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, in reliance upon information provided by the
Servicer under the Loss Mitigation Advisory Agreements or for errors in
judgment; provided, however, that this provision shall not protect the Loss
Mitigation Advisor or any such person against liability that would otherwise be
imposed by reason of willful malfeasance, bad faith or gross negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement or the Loss Mitigation Advisory Agreements. The
Loss Mitigation Advisor and any director, officer, employee or agent of the Loss
Mitigation Advisor 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, and may rely in good faith upon the accuracy of information
furnished by the Servicer pursuant to the Loss Mitigation Advisory Agreements in
the performance of its duties thereunder and hereunder.
ARTICLE X.
REMIC ADMINISTRATION
Section 10.01 REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement shall be
made by the Trustee on Forms 1066 or other appropriate federal tax or
information return for the taxable year ending on the last day of the calendar
year in which the Certificates are issued. The regular interests and residual
interest in each REMIC shall be as designated in the Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code.
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(c) The Trustee (after consultation with the Guarantor and
accommodating the Guarantor's reasonable requests) shall represent the Trust
Fund in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The Trustee
shall pay any and all tax related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Trustee in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Trustee shall be entitled to reimbursement of expenses to the extent
provided in clause (i) above from the Certificate Account.
(d) The Trustee shall prepare, sign and file, all of each REMIC's
federal and appropriate state tax and information returns as such REMIC's direct
representative. The expenses of preparing and filing such returns shall be borne
by the Trustee.
(e) The Trustee or its designee shall perform on behalf of each REMIC
all reporting and other tax compliance duties that are the responsibility of
such REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions, or other
such guidance, the Trustee shall provide (i) to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization pursuant to Treasury Regulation 1.860E-(2)(a)(5) and any
person designated in Section 860E(e)(3) of the Code and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(f) The Trustee, the Guarantor and the Holders of Certificates shall
take any action or cause any REMIC to take any action necessary to create or
maintain the status of any REMIC as a REMIC under the REMIC Provisions and shall
assist each other as necessary to create or maintain such status. Neither the
Trustee, the Guarantor nor the Holder of any Residual Certificate shall
knowingly take any action, cause any REMIC to take any action or fail to take
(or fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of any
REMIC as a REMIC or (ii) result in the imposition of a tax upon any REMIC
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2) and the tax on prohibited contributions set forth on
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee and the Guarantor have received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition of
such a tax. In addition, prior to taking any action with respect to any REMIC or
the assets therein, or causing any REMIC to take any action, which is not
expressly permitted under the terms of this Agreement, any Holder of a Residual
Certificate will consult with the Trustee, the Guarantor, or their respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any REMIC, and no such Person shall
take any such action or cause any REMIC to take any such action as to which the
Trustee has advised it in writing that an Adverse REMIC Event could occur.
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(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such Trust taxes are not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the Residual
Certificate in any such REMIC or, if no such amounts are available, out of other
amounts held in the Certificate Account, and shall reduce amounts otherwise
payable to holders of regular interests in any such REMIC, as the case may be.
(h) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each REMIC on a calendar year and on an accrual
basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) The Trustee shall not enter into any arrangement by which any REMIC
will receive a fee or other compensation for services.
(k) [Reserved].
(l) The Trustee shall treat the Basis Risk Reserve Fund as an outside
reserve fund within the meaning of Treasury Regulation Section 1.860G-2(h) that
is owned by the Holder of the Class X Certificate and that is not an asset of
the REMIC. The Trustee shall treat the rights of the Class A1, Class A2, Class
M1, Class M2 and Class B Certificateholders to receive payments from any Basis
Risk Reserve Fund in the event of a Basis Risk Shortfall as rights in an
interest rate cap contract written by the Class X Certificateholder in favor of
the Class A1, Class A2, Class M1, Class M2 and Class B Certificateholders. Thus,
each Class A1, Class A2, Class M1, Class M2 and Class B Certificate shall be
treated as representing not only ownership of regular interests in REMIC 3, but
also ownership of an interest in an interest rate cap contract. For purposes of
determining the issue prices of the REMIC 2 regular interests, that Trustee
shall assume that the interest rate cap contract for the Class A1 Certificates
shall have a nominal value of $16,749.30; that the interest rate cap contract
for the Class A2 Certificates shall have a nominal value of $5,215.60; that the
interest rate cap contract for the Class M1 Certificates shall have a nominal
value of $702.90; that the interest rate cap contract for the Class M2
Certificates shall have a nominal value of $468.60; and that the interest rate
cap contract for the Class B Certificates shall have a nominal value of $292.90.
Section 10.02 Prohibited Transactions and Activities. Neither the
Depositor nor the Trustee shall sell, dispose of, or substitute for any of the
Mortgage Loans, except in a disposition pursuant to (i) the foreclosure of a
Mortgage Loan, (ii) the bankruptcy of the Trust Fund, (iii) the termination of
each REMIC pursuant to Article VII of this Agreement, (iv) a substitution
pursuant to Article II of this Agreement or (v) a repurchase of Mortgage Loans
pursuant to Article II of this Agreement, nor acquire any assets for any REMIC,
nor sell or dispose of any investments in the Certificate Account for gain, nor
accept any contributions to any REMIC after the Closing Date, unless it has
received an Opinion of Counsel (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (a) affect adversely the status of any such REMIC as a
REMIC or of the interests therein other than the Residual Certificates as the
regular interests therein, (b) affect the distribution of interest or principal
on the Certificates, (c) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause any such REMIC to be subject to any tax including a tax on
prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions.
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Section 10.03 Indemnification with Respect to Certain Taxes and Loss of
REMIC Status.
(a) In the event that any REMIC fails to qualify as a REMIC, loses its
status as a REMIC, or incurs federal, state or local taxes as a result of a
prohibited transaction or prohibited contribution under the REMIC Provisions due
to the negligent performance by the Trustee of its duties and obligations set
forth herein, the Trustee shall indemnify the Holder of the related Residual
Certificate or the Trust Fund, as applicable, against any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence; provided, however, that the Trustee shall not be liable for any such
Losses attributable to the action or inaction of the Trustee, the Depositor, the
Class X Certificateholder or the Holder of such Residual Certificate, as
applicable, nor for any such Losses resulting from misinformation provided by
the Holder of such Residual Certificate on which the Trustee has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holder of such Residual Certificate now or hereafter existing at law or in
equity. Notwithstanding the foregoing, however, in no event shall the Trustee
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement or the Servicing Agreement, (2) for
any Losses other than arising out of a negligent performance by the Trustee of
its duties and obligations set forth herein, and (3) for any special or
consequential damages to Certificateholders (in addition to payment of principal
and interest on the Certificates).
(b) If the Internal Revenue Service determines that one of the REMICs
established hereunder recognized income from a prohibited transaction within the
meaning of Section 860F(a)(2) of the Code as a result of the lapse of the
Servicer's and Aurora's right to effect a Special Termination of the Trust Fund
by purchasing the assets of the Trust Fund, then the Seller shall indemnify the
Trust Fund for any such tax and any tax imposed upon such indemnification.
(c) In the event that any of the REMICs incur a state or local tax as a
result of a determination that any of the REMICs are domiciled in the State of
California for state tax purposes by virtue of the location of the Servicer, the
Seller agrees to pay on behalf of the Trust Fund when due any and all state and
local taxes imposed as a result of such determination. In the event that any of
the REMICs incur a state or local tax as a result of a determination that any of
the REMICs are domiciled in the State of Minnesota for state tax purposes by
virtue of the location of the Trustee, the Seller agrees to pay on behalf of the
Trust Fund when due any and all state and local taxes imposed as a result of
such determination.
Section 10.04 REO Property.
Notwithstanding any other provision of this Agreement, the Trustee
shall not, and shall, to the extent provided in the Servicing Agreement, not
knowingly permit the Servicer to, rent, lease, or otherwise earn income on
behalf of any REMIC with respect to any REO Property which might cause such REO
Property to fail to qualify as "foreclosure" property within the meaning of
section 860G(a)(8) of the Code or result in the receipt by any REMIC of any
"income from non-permitted assets" within the meaning of section 860F(a)(2) of
the Code or any "net income from foreclosure property" which is subject to tax
under the REMIC Provisions unless the Servicer has advised, the Trustee in
writing to the effect that, under the REMIC Provisions, such action would not
adversely affect the status of any REMIC as a REMIC and any income generated for
any REMIC by the REO Property would not result in the imposition of a tax upon
such REMIC.
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ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.01 Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 11.02 Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof.
Section 11.03 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Seller, the Loss Mitigation Advisor, the Trustee and the Guarantor, without
notice to or the consent of any of the Holders, (i) to cure any ambiguity, (ii)
to cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Certificates, the Trust
Fund or this Agreement in any Offering Document, or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein or
with the provisions of the Servicing Agreement, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement or
(iv) to add, delete, or amend any provisions to the extent necessary or
desirable to comply with any requirements imposed by the Code and the REMIC
Provisions. No such amendment shall be made unless the Trustee receives an
Opinion of Counsel, at the expense of the party requesting the change, that such
change will not adversely affect the status of any REMIC as a REMIC or cause a
tax to be imposed on such REMIC, nor shall such amendment effected pursuant to
clause (iii) of such sentence adversely affect in any material respect the
interests of any Holder. In addition, any amendment to this Agreement which
affects any Custodial Agreement must be consented to in writing by the
Custodian. Prior to entering into any amendment without the consent of Holders
pursuant to this paragraph, the Trustee may require an Opinion of Counsel (at
the expense of the party requesting such amendment) to the effect that such
amendment is permitted under this paragraph. Any such amendment shall be deemed
not to adversely affect in any material respect any Holder, if the Trustee
receives written confirmation from each Rating Agency that such amendment will
not cause such Rating Agency to reduce the then current rating assigned to the
Certificates.
90
(b) This Agreement may also be amended from time to time by the
Depositor, the Seller, the Loss Mitigation Advisor, the Trustee and the
Guarantor with the consent of the Holders of not less than 66-2/3% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders; provided, however, that no such amendment
shall be made unless the Trustee receives an Opinion of Counsel, at the expense
of the party requesting the change, that such change will not adversely affect
the status of any REMIC as a REMIC or cause a tax to be imposed on such REMIC;
and provided further, that no such amendment may (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which are
required to be distributed on any Certificate, without the consent of the Holder
of such Certificate or (ii) reduce the aforesaid percentages of Class Principal
Amount (or Percentage Interest) of Certificates of each Class, the Holders of
which are required to consent to any such amendment without the consent of the
Holders of 100% of the Class Principal Amount (or Percentage Interest) of each
Class of Certificates affected thereby. For purposes of this paragraph,
references to "Holder" or "Holders" shall be deemed to include, in the case of
any Class of Book-Entry Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor, the Rating Agencies and to the Guarantor.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in the Servicing
Agreement, the Trustee shall not consent to any amendment of the Servicing
Agreement except pursuant to the standards provided in this Section with respect
to amendment of this Agreement.
Section 11.04 Voting Rights. Except to the extent that the consent of
all affected Certificateholders is required pursuant to this Agreement, with
respect to any provision of this Agreement requiring the consent of
Certificateholders representing specified percentages of aggregate outstanding
Certificate Principal Amount (or Percentage Interest), Certificates owned by the
Depositor, the Trustee, the Servicer, MGIC, the Loss Mitigation Advisor or
Affiliates thereof are not to be counted so long as such Certificates are owned
by the Depositor, the Trustee, the Servicer, MGIC, the Loss Mitigation Advisor
or any Affiliate thereof.
Section 11.05 Provision of Information.
(a) For so long as any of the Certificates of any Series or Class are
"restricted securities" within the meaning of Rule 144(a)(3) under the Act, each
of the Depositor and the Trustee agree to cooperate with each other to provide
to any Certificateholders and to any prospective purchaser of Certificates
designated by such Certificateholder, upon the request of such Certificateholder
or prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee in
providing such information shall be reimbursed by the Depositor.
91
(b) The Trustee will provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or documents
requested, a copy (excluding exhibits) of any report on Form 8-K or Form 10-K
filed with the Securities and Exchange Commission pursuant to Section 9.02(b).
Any reasonable out-of-pocket expenses incurred by the Trustee in providing
copies of such documents shall be reimbursed by the Depositor.
(c) On each Distribution Date, the Trustee shall deliver or cause to be
delivered by first class mail to the Depositor, Attention: Contract Finance, a
copy of the report delivered to Certificateholders pursuant to Section 4.03.
Section 11.06 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (a) in the case of the Depositor, Structured Asset Securities
Corporation, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Mortgage Finance ARC 2001-BC4, (b) in the case of the Seller, Xxxxxx Brothers
Holdings Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Mortgage Finance ARC 2001-BC4, (c) in the case of the Loss Mitigation
Advisor, The Murrayhill Company, 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000, Attention: Xxx X. Xxxxxxx, (d) in the case of the Trustee, Xxxxx Fargo
Bank Minnesota, National Association, 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxx 00000; Attention: Trust Administration, and (e) in the case of the
Guarantor, 0000 Xxxxx Xxxxxx Xxxx, XxXxxx, Xxxxxxxx, Attention: Director,
Securities Servicing, or as to each party such other address as may hereafter be
furnished by such party to the other parties in writing. All demands, notices
and communications to a party hereunder shall be in writing and shall be deemed
to have been duly given when delivered to such party at the relevant address,
facsimile number or electronic mail address set forth above or at such other
address, facsimile number or electronic mail address as such party may designate
from time to time by written notice in accordance with this Section 11.07.
Section 11.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
92
Section 11.09 Indulgences; No Waivers. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
Section 11.10 Headings Not To Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof. Section 11.11 Benefits of
Agreement. Nothing in this Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of the Certificates, any benefit or any
legal or equitable right, power, remedy or claim under this Agreement, except to
the extent specified in Section 11.14.
Section 11.12 Conflicts. To the extent that the terms of this Agreement
conflict with the terms of the Servicing Agreement, the Servicing Agreement,
shall govern.
Section 11.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
Section 11.14 Transfer of Servicing. The Seller hereby agrees that it
shall provide written notice to the Trustee and the Guarantor thirty days prior
to any transfer or assignment by the Seller of its rights under the Servicing
Agreement or of the servicing thereunder or delegation of its rights or duties
thereunder or any portion thereof to any other Person including any other
Servicer under the Servicing Agreement. All costs and expenses of the Trustee
related to any such transfer or assignment shall be at the expense of the
Seller. In addition, the ability of the Seller to transfer or assign its rights
and delegate its duties under the Servicing Agreement or to transfer the
servicing thereunder to a successor servicer shall be subject to the following
conditions:
(a) Such successor servicer must be qualified to service loans for
FHLMC;
(b) Such successor servicer must satisfy the seller/servicer
eligibility standards in the Servicing Agreement, exclusive of any experience in
mortgage loan origination, and must be reasonably acceptable to the Trustee and
the Guarantor, whose approval shall not be unreasonably withheld;
(c) Such successor servicer must execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, that
contains an assumption by such successor servicer of the due and punctual
performance and observance of each covenant and condition to be performed and
observed by the Servicer under the Servicing Agreement;
93
(d) There must be delivered to the Trustee and the Guarantor a letter
from each Rating Agency to the effect that such transfer of servicing will not
result in a qualification, withdrawal or downgrade of the then-current rating of
any of the Certificates;
(e) The Seller shall, at its own cost and expense, take such steps, or
cause the terminated Servicer to take such steps, as may be necessary or
appropriate to effectuate and evidence the transfer of the servicing of the
Mortgage Loans to such successor servicer, including, but not limited to, the
following: (A) to the extent required by the terms of the Mortgage Loans and by
applicable federal and state laws and regulations, the Seller shall cause the
prior Servicer to timely mail to each obligor under a Mortgage Loan any required
notices or disclosures describing the transfer of servicing of the Mortgage
Loans to the successor servicer; (B) prior to the effective date of such
transfer of servicing, the Seller shall cause the prior Servicer to transmit to
any related insurer notification of such transfer of servicing; (C) on or prior
to the effective date of such transfer of servicing, the Seller shall cause the
prior Servicer to deliver to the successor servicer all Mortgage Loan Documents
and any related records or materials; (D) on or prior to the effective date of
such transfer of servicing, the Seller shall cause the prior Servicer to
transfer to the successor servicer all funds held by the prior Servicer in
respect of the Mortgage Loans; (E) on or prior to the effective date of such
transfer of servicing, the Seller shall cause the prior Servicer to, after the
effective date of the transfer of servicing to the successor servicer, continue
to forward to such successor servicer, within one Business Day of receipt, the
amount of any payments or other recoveries received by the prior Servicer, and
to notify the successor servicer of the source and proper application of each
such payment or recovery; and (F) the Seller shall cause the prior Servicer to,
after the effective date of transfer of servicing to the successor servicer,
continue to cooperate with the successor servicer to facilitate such transfer in
such manner and to such extent as the successor servicer may reasonably request.
Section 11.15 Special Notices to the Rating Agencies.
(a) The Depositor shall give prompt notice to the Rating Agencies of
the occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) the occurrence of any Event of Default described in
Section 6.14;
(iii) any notice of termination given to the Servicer pursuant
to Section 6.14 and any resignation of the Servicer under the Servicing
Agreement;
(iv) the appointment of any successor to any Servicer pursuant
to Section 6.14; and
(v) the making of a final payment pursuant to Section 7.02;
and
(b) All notices to the Rating Agencies provided for this Section shall
be in writing and sent by first class mail, telecopy or overnight courier, as
follows:
94
If to Fitch, to:
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgages
If to Moody's, to:
Moody's Investor Services, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgages
If to S&P, to:
Standard & Poor's Credit Market Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgages
(c) Reports prepared pursuant to Section 4.03 shall be made available
to the Rating Agencies via the Trustee's website at "xxx.xxxxxxx.xxx" and the
Loss Mitigation Advisor shall be responsible for delivering to the Rating
Agencies the reports prepared pursuant to Section 9.05.
95
IN WITNESS WHEREOF, the Depositor, the Seller, the Loss Mitigation
Advisor, the Trustee and the Guarantor have caused their names to be signed
hereto by their respective officers hereunto duly authorized as of the day and
year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE MURRAYHILL COMPANY,
as Loss Mitigation Advisor
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxx Xxxxx
----------------------------
Name:
Title:
FEDERAL HOME LOAN MORTGAGE
CORPORATION, as Guarantor
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Director, Securities
Marketing Investors
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------
Name: Xxxxxxx Labanowksi
Title: Senior Vice President
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT B
[RESERVED]
EXHIBIT C
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
-----------------------------
Date
[Addressed to Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Trustee under a certain Trust Agreement dated as of May 1, 2001 among Structured
Asset Securities Corporation, as Depositor, Xxxxxx Brothers Holdings Inc., as
Seller, The Murrayhill Company, as Loss Mitigation Advisor, The Federal Home
Loan Mortgage Corporation, as Guarantor, and you, as Trustee (the "Trust
Agreement"), the undersigned Servicer hereby requests a release of the Mortgage
File held by you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full. (The Servicer hereby certifies that all
amounts received in connection with the loan have been or will be credited to
the Certificate Account pursuant to the Trust Agreement.)
____ 2. The Mortgage Loan is being foreclosed.
____ 3. Mortgage Loan substituted. (The Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and delivered to you along
with the related Mortgage File pursuant to the Trust Agreement.)
____ 4. Mortgage Loan purchased. (The Servicer hereby certifies that the
Purchase Price has been credited to the Certificate Account pursuant to the
Trust Agreement.)
____ 5. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Trust Agreement and
will be returned to you within ten (10) days of our receipt of the Mortgage
File, except if the Mortgage Loan has been paid in full, or repurchased or
substituted for a Qualifying Substitute Mortgage Loan (in which case the
Mortgage File will be retained by us permanently) and except if the Mortgage
Loan is being foreclosed (in which case the Mortgage File will be returned when
no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Trust Agreement.
[Name of Servicer],
as Servicer
By:_______________________________
Name:
Title: Servicing Officer
C-2
EXHIBIT D-1
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes
and says:
1. That he [she] is [title of officer] ________________________
of [name of Purchaser]
_________________________________________ (the "Purchaser"), a
_______________________ [description of type of entity] duly
organized and existing under the laws of the [State of
__________] [United States], on behalf of which he [she] makes
this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within
the meaning of Section 860E(e)(5) of the Internal Revenue Code
of 1986, as amended (the "Code") and will not be a
"disqualified organization" as of [date of transfer], and that
the Purchaser is not acquiring a Residual Certificate (as
defined in the Agreement) for the account of, or as agent
(including a broker, nominee, or other middleman) for, any
person or entity from which it has not received an affidavit
substantially in the form of this affidavit. For these
purposes, a "disqualified organization" means the United
States, any state or political subdivision thereof, any
foreign government, any international organization, any agency
or instrumentality of any of the foregoing (other than an
instrumentality if all of its activities are subject to tax
and a majority of its board of directors is not selected by
such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to
persons in rural areas as described in Code Section
1381(a)(2)(C), any "electing large partnership" within the
meaning of Section 775 of the Code, or any organization (other
than a farmers' cooperative described in Code Section 521)
that is exempt from federal income tax unless such
organization is subject to the tax on unrelated business
income imposed by Code Section 511.
4. That the Purchaser is not, and on __________ [insert date of
transfer of Residual Certificate to Purchaser] will not be,
and is not and on such date will not be investing the assets
of, an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"),
or a plan subject to Code Section 4975 or a person or entity
that is using the assets of any employee benefit plan or other
plan to acquire a Residual Certificate.
5. That the Purchaser hereby acknowledges that under the terms of
the Trust Agreement (the "Agreement") among Structured Asset
Securities Corporation, as Depositor, Xxxxxx Brothers Holdings
Inc., as Seller, The Murrayhill Company, as Loss Mitigation
Advisor, Xxxxx Fargo Bank Minnesota, National Association, as
Trustee, and The Federal Home Loan Mortgage Corporation, as
Guarantor, dated as of May 1, 2001, no transfer of the
Residual Certificates shall be permitted to be made to any
person unless the Trustee has received a certificate from such
transferee to the effect that such transferee is not an
employee benefit plan subject to ERISA or a plan subject to
Section 4975 of the Code and is not using the assets of any
employee benefit plan or other plan to acquire Residual
Certificates.
6. That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such
securities through electronic book-entry changes in accounts
of participating organizations (such entity, a "Book-Entry
Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes
legally required to be paid with respect to such Residual
Certificate.
8. That the Purchaser will not transfer a Residual Certificate to
any person or entity (i) as to which the Purchaser has actual
knowledge that the requirements set forth in paragraph 3,
paragraph 6 or paragraph 10 hereof are not satisfied or that
the Purchaser has reason to believe does not satisfy the
requirements set forth in paragraph 7 hereof, and (ii) without
obtaining from the prospective Purchaser an affidavit
substantially in this form and providing to the Trustee a
written statement substantially in the form of Exhibit D-2 to
the Agreement.
9. That the Purchaser understands that, as the holder of a
Residual Certificate, the Purchaser may incur tax liabilities
in excess of any cash flows generated by the interest and that
it intends to pay taxes associated with holding such Residual
Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in
connection with the conduct of a trade or business within the
United States and has furnished the transferor and the Trustee
with an effective Internal Revenue Service Form 4224 or
successor form at the time and in the manner required by the
Code or (iii) is a Non-U.S. Person that has delivered to both
the transferor and the Trustee an opinion of a nationally
recognized tax counsel to the effect that the transfer of such
Residual Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated
thereunder and that such transfer of a Residual Certificate
D-1-2
will not be disregarded for federal income tax purposes.
"Non-U.S. Person" means an individual, corporation,
partnership or other person other than (i) a citizen or
resident of the United States; (ii) a corporation (or entity
treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United
States or of any state thereof, including, for this purpose,
the District of Columbia; (iii) a partnership (or entity
treated as a partnership for tax purposes) organized in the
United States or under the laws of the United States or of any
state thereof, including, for this purpose, the District of
Columbia (unless provided otherwise by future Treasury
regulations); (iv) an estate whose income is includible in
gross income for United States income tax purposes regardless
of its source; or (v) a trust, if a court within the United
States is able to exercise primary supervision over the
administration of the trust and one or more U.S. Persons have
authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to
the extent provided in Treasury regulations, certain trusts in
existence on August 20, 1996, and treated as U.S. Persons
prior to such date, may elect to continue to be U.S. Persons.
11. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the
restrictions on transfer of any Residual Certificate to such a
"disqualified organization," an agent thereof, a Book-Entry
Nominee, or a person that does not satisfy the requirements of
paragraph 7 and paragraph 10 hereof.
12. That the Purchaser consents to the designation of the Trustee
as its agent to act as "tax matters person" of the Trust Fund
pursuant to the Trust Agreement.
13. The Purchaser has provided financial statements or other
financial information requested by the Transferor in
connection with the transfer of the Class R Certificates to
permit the Transferor to assess the financial capability of
the Purchaser to pay such taxes.
D-1-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[title of officer] this _____ day of __________, 20__.
---------------------------------
[name of Purchaser]
By:______________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________, 20__.
NOTARY PUBLIC
------------------------------
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________, 20__.
EXHIBIT D-2
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
----------------------------
Date
Re: Amortizing Residential Collateral Trust
Mortgage Pass-Through Certificates, Series 2001-BC4
---------------------------------------------------
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to a Residual Certificate. In addition, the Transferor has conducted a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
---------------------------
Name:
Title:
EXHIBIT E
SERVICING AGREEMENT (Option One Mortgage Corporation)
EXHIBIT F
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Amortizing Residential Collateral Trust
Mortgage Pass-Through Certificates
Series 2001-BC4
---------------------------------------
Reference is hereby made to the Trust Agreement dated as of May 1, 2001
(the "Trust Agreement") among Structured Asset Securities Corporation, as
Depositor, Xxxxxx Brothers Holdings Inc., as Seller, The Murrayhill Company, as
Loss Mitigation Advisor, Xxxxx Fargo Bank Minnesota, National Association, as
Trustee, and The Federal Home Loan Mortgage Corporation, as Guarantor.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Trust Agreement.
This letter relates to $__________ initial Certificate Balance of Class
Certificates which are held in the form of Definitive Certificates registered in
the name of ______________ (the "Transferor"). The Transferor has requested a
transfer of such Definitive Certificates for Definitive Certificates of such
Class registered in the name of [insert name of transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a "qualified institutional buyer"
within the meaning of Rule 144A purchasing for its own account or for the
account of a "qualified institutional buyer," which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Underwriter and the Depositor.
-------------------------------------
[Name of Transferor]
By:__________________________________
Name:
Title:
Dated: ___________, ____
EXHIBIT G
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
------------------------
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Mortgage Pass-Through Certificates, Series 2001-BC4 (the "Privately
Offered Certificates") of Amortizing Residential Collateral Trust, Series
2001-BC4 (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as permitted
in the following sentence. We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we
should sell any Privately Offered Certificates within three years of
the later of the date of original issuance of the Privately Offered
Certificates or the last day on which such Privately Offered
Certificates are owned by the Depositor or any affiliate of the
Depositor (which includes the Underwriter) we will do so only (A) to
the Depositor, (B) to "qualified institutional buyers" (within the
meaning of Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act ("QIBs"), (C) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act, or (D)
to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act
that is not a QIB (an "Institutional Accredited Investor") which, prior
to such transfer, delivers to the Trustee under the Trust Agreement
dated as of May 1, 2001 among the Depositor, Xxxxxx Brothers Holdings,
Inc., as Seller, The Murrayhill Company, as Loss Mitigation Advisor,
Xxxxx Fargo Bank Minnesota, National Association, as Trustee (the
"Trustee"), and The Federal Home Loan Mortgage Corporation, as
Guarantor, a signed letter in the form of this letter; and we further
agree, in the capacities stated above, to provide to any person
purchasing any of the Privately Offered Certificates from us a notice
advising such purchaser that resales of the Privately Offered
Certificates are restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited Investor,
we will be required to furnish to the Trustee and the Depositor a
certification from such transferee in the form hereof to confirm that
the proposed sale is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act. We further understand that the Privately Offered
Certificates purchased by us will bear a legend to the foregoing
effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Privately Offered Certificates, and we and any account for which we are
acting are each able to bear the economic risk of such investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment discretion.
(5) We have received such information as we deem necessary in order to make
our investment decision.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
G-2
You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
----------------------------------
[Purchaser]
By: ________________________________
Name:
Title:
G-3
EXHIBIT H
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of (the
"Investor"), a [corporation duly organized] and existing under the laws of
__________, on behalf of which he makes this affidavit.
2. The Investor either (x) is not an employee benefit plan subject
to Section 406 or Section 407 of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), the Trustee of any such plan or a
person acting on behalf of any such plan nor a person using the assets of
any such plan or (2) if the Investor is an insurance company, such Investor
is purchasing such Certificates with funds contained in an "Insurance
Company General Account" (as such term is defined in Section v(e) of the
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under PTCE 95-60; or
(y) shall deliver to the Trustee and the Depositor an opinion of counsel (a
"Benefit Plan Opinion") satisfactory to the Trustee and the Depositor, and
upon which the Trustee and the Depositor shall be entitled to rely, to the
effect that the purchase or holding of such Certificate by the Investor
will not result in the assets of the Trust Fund being deemed to be plan
assets and subject to the prohibited transaction provisions of ERISA or the
Code and will not subject the Trustee or the Depositor to any obligation in
addition to those undertaken by such entities in the Trust Agreement, which
opinion of counsel shall not be an expense of the Trustee or the Depositor.
3. The Investor hereby acknowledges that under the terms of the
Trust Agreement (the "Agreement") among Structured Asset Securities
Corporation, as Depositor, Xxxxxx Brothers Holdings Inc., as Seller, The
Murrayhill Company, as Loss Mitigation Advisor, Xxxxx Fargo Bank Minnesota,
National Association, as Trustee, and The Federal Home Loan Mortgage
Corporation, as Guarantor, dated as of May 1, 2001, no transfer of the
ERISA-Restricted Certificates shall be permitted to be made to any person
unless the Depositor and Trustee have received a certificate from such
transferee in the form hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________, 20__.
---------------------------------
[Investor]
By:______________________________
Name:
Title:
ATTEST:
-----------------------------
STATE OF )
) ss:
COUNTY OF )
Personally appeared before me the above-named ________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Investor, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this _____ day of _________ 20_.
------------------------------
NOTARY PUBLIC
My commission expires the
_____ day of __________, 20__.
H-2
EXHIBIT I
CUSTODIAL AGREEMENT (U.S. Bank Trust, National Association)
EXHIBIT J
Form of Trustee Remittance Report
BOND SUMMARY REPORTING - BND FILE FORMAT
DETAIL RECORD FIELDS: File Name: T0nnMMYY.BND
------------------------------------- ----------- ------------ --------------------------------------------------------------
Field Name Fld Nbr Format Definition
------------------------------------- ----------- ------------ -------------------------------------------------------------
Series# (Deal Identifier) 1 10 (x) As defined by issuer or as assigned - T0nn
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Class# 2 2 (x) As assigned or determined by issuer. Input default value
if not applicable.
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 5 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
CUSIP# 3 9 (x) If not available, Input default value. Xxxxxxx Mac may
provide dummy numbers, if CUSIP numbers are not assigned by
the issuer.
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Coupon - Current Pass-through Rate 4 6.3 Bond Coupon Rate
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Original Face Value 5 13.2 Par Value, original issue amount, of Class
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Beginning Unpaid Principal Balance 6 13.2 Beginning Class UPB as of beginning of cycle
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Principal payment amount 7 13.2 Dollar amount of class principal payment
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Interest payment amount 8 13.2 Dollar amount of class interest payment
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Total Distribution 9 13.2 Dollar amount of principal & interest payment
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Deferred Interest 10 13.2 Dollar amount of overcollateralization (Difference between
security principal and mortgage principal balances applied
this period. This can include non-cash allocations)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Principal Loss 11 13.2 Dollar amount of principal losses applied this period
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Interest Loss 12 13.2 Dollar amount of interest losses applied this period
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Ending Unpaid Principal Balance 13 13.2 Ending Class UPB as of beginning of cycle
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Principal Distribution Factor 14 9.7 Factor representing the principal payment divided by the
Original UPB of the class.
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Interest Distribution Factor 15 9.7 Factor representing the interest payment divided by the
Beginning UPB of the class.
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
------------------------------------- ----------- ------------ -------------------------------------------------------------
Prepayment Interest Shortfall 16 9.7 If loans were prepaid and an interest shortfall arose in
this period, it should be entered in this field. If not
applicable, a zero should be used.
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Total Distribution Factor 17 9.7 Factor representing the combined principal and interest
payment divided by the Original UPB of the class.
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Deferred Interest Factor 18 9.7 Factor representing any increase in residual class due to
credit enhancement requirements. This is determined by
dividing the increase amount by the original UPB.
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Ending Principal Balance Factor 19 9.7 Ending UPB divided by original UPB.
------------------------------------- ----------- ------------ -------------------------------------------------------------
Blank 1 (x)
------------------------------------- ----------- ------------ -------------------------------------------------------------
Remaining Unpaid Interest 20 13.2 If interest should be due, but not received on a given
amount, then that amount should be entered.
------------------------------------- ----------- ------------ -------------------------------------------------------------
Notes: File must be a text file (either space or tab delimited).
Any dates should be in YYYYMMDD format. They should not contain slashes
(/) or dashes (-).
Number fields should NOT include commas.
Any negative number should be denoted by a "-" in front of the number,
do not put the "-" after the number or use parentheses.
EXHIBIT K
[Reserved]
EXHIBIT L
[Reserved]
EXHIBIT M
FORM OF LOSS MITIGATION ADVISORY AGREEMENT
BETWEEN THE MURRAYHILL COMPANY, AS LOSS
MITIGATION ADVISOR, AND THE SERVICER
SCHEDULE A
MORTGAGE LOAN SCHEDULE
