EXHIBIT 4.2
RYLAND MORTGAGE SECURITIES CORPORATION
MORTGAGE PARTICIPATION SECURITIES
SERIES 1991-12
AMENDMENT
TO
TRUST AGREEMENTS
Dated as of
May 1, 1997
among
FINANCIAL ASSET SECURITIZATION, INC.,
formerly known as Ryland Mortgage Securities Corporation,
Depositor,
NORWEST BANK MINNESOTA, N.A.,
as assignee of Xxxxxx Mortgage Company,
Master Servicer,
and
THE BANK OF NEW YORK,
as assignee of NationsBank, N.A., successor to Sovran Bank, N.A.,
Trustee
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AMENDMENT TO TRUST AGREEMENTS
THIS AMENDMENT TO TRUST AGREEMENTS, dated as of May 1, 1997, is made by
and among FINANCIAL ASSET SECURITIZATION, INC. (formerly known as Xxxxxx
Mortgage Securities Corporation), a Virginia corporation (the "Depositor"), as
depositor, NORWEST BANK MINNESOTA, N.A., a national banking association (the
"Master Servicer"), as assignee of Xxxxxx Mortgage Company, an Ohio corporation,
as master servicer, and THE BANK OF NEW YORK, a New York banking corporation
(the "Trustee"), as assignee of NationsBank, N.A., successor to Sovran Bank,
N.A., as trustee, under the Pooling Trust Agreement and the Issuing Trust
Agreement, each dated as of July 1, 1991, among Ryland Mortgage Securities
Corporation, Ryland Mortgage Company, and the Trustee relating to the Xxxxxx
Mortgage Securities Corporation Mortgage Participation Securities, Series
1991-12 (the "Trust Agreements"), which Trust Agreements incorporate by
reference the Xxxxxx Mortgage Securities Corporation, Mortgage Participation
Securities, Standard Terms to Trust Agreement, March 1991 Edition (the "Standard
Terms"). Capitalized terms used herein shall have the meanings assigned in the
Trust Agreements unless otherwise defined herein.
RECITALS
WHEREAS, Section 11.01 of the Standard Terms provides that, subject to
the conditions specified therein, the Trust Agreements may be amended by the
Depositor, the Master Servicer, and the Trustee without the consent of any of
the Securityholders to make any provisions with respect to matters arising with
respect to the respective Trusts which are not covered by the Trust Agreements
and which shall not be inconsistent with the provisions of the Trust Agreements;
and
WHEREAS, Section 11.01 of the Standard Terms also provides that,
subject to the conditions specified therein, the Trust Agreements may be amended
by the Depositor, the Master Servicer, and the Trustee with the consent of any
of the Holders of Securities entitled to at least 66% of the Voting Rights for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Trust Agreement or of modifying in any manner the
rights of the Holders of Securities; provided, however, that no such amendment
shall (A) 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 Security
without the consent of the Holder of such Security, (B) adversely affect in any
material respect the interests of the Holders of any Class of Securities in a
manner other than as described in (A), without the consent of the Holders of
Securities of such Class evidencing at least 66% of the Voting Rights of such
Class, or (C) reduce the aforesaid percentage of Securities the Holders of which
are required to consent to any such amendment, without the consent of such
Holders of all Securities then outstanding; and
WHEREAS, the consent of the Holders of Securities entitled to at least
66% of the Voting Rights has been obtained with respect to the amendment
effected by Section 2 hereof; and
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WHEREAS, the parties desire to amend the terms of the Trust Agreements
as provided in this Amendment to Trust Agreements;
NOW, THEREFORE, the Depositor, the Master Servicer, and the Trustee
hereby agree to amend the terms of the Trust Agreements as follows:
AGREEMENT
1. As it applies to the Securities issued pursuant to the Trust
Agreements, Section 9.01 of the Standard Terms, as modified by the Trust
Agreements, is further amended by adding the following new paragraphs after the
fifth paragraph in Section 9.01:
Notwithstanding any other provision of this Standard Terms to
the contrary, the Holders of the majority of the Percentage
Interest in the Class R-1 Securities (the "Residual Majority")
may in connection with its election to make a Terminating
Purchase make the following additional election. If the
certificates in physical form evidencing the Regular
Securities and the Residual Securities (other than those
Securities held by the Residual Majority and by the Tax
Matters Person) issued by the Issuing Trust are surrendered to
the Trustee (duly endorsed for transfer) no later than the
second Business Day (the "Purchase Election Date") prior to
the Distribution Date on which the Terminating Purchase is to
be made (the "Purchase Date"), the Residual Majority may
elect, in lieu of purchasing the Mortgage Loans, to purchase
all of the outstanding Regular Securities and the Residual
Securities (other than those Securities held by the Residual
Majority and by the Tax Matters Person) issued by the Issuing
Trust (hereinafter, the "Securities") and to treat the
Securities so purchased as remaining outstanding and having
been purchased by the Residual Majority or its designee. In
the event that the Residual Majority elects to purchase the
Securities, the purchase price (the "Securities Purchase
Price") to be deposited in the Asset Proceeds Account shall be
100% of the aggregate Security Principal Balance of the
Securities, plus, with respect to each Class of Securities,
Accrued Pass-Through Interest with respect to the related
Distribution Date and any Accrued Pass-Through Interest from a
previous Distribution Date remaining unpaid as of the Purchase
Date; but if such election is not made on the Purchase
Election Date, then the amount to be deposited in the Asset
Proceeds Account shall be the Termination Price. In either
event, the Holders of the Securities shall be entitled to
receive the distributions set forth in this Section 9.01.
Any such further election to purchase the Securities and to
treat such Securities as outstanding shall be made by the
Residual Majority by written notice of such further election
delivered to the Trustee no later than the Purchase Election
Date. During the period after which the Trustee has given
notice of the Terminating Purchase to the Securityholders and
the Purchase Election Date, the Trustee shall use all
reasonable efforts to obtain surrender of the certificates in
physical form evidencing the Securities, together with such
certificates or documents as may be
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required to be delivered by the transferor of a Security
pursuant to Section 5.03 of the Standard Terms. On the
Purchase Date, if the Residual Majority has elected to
purchase the outstanding Securities and upon receipt by the
Trustee of such certificates, agreements and/or opinions as
may be required by any transferor or transferee pursuant to
Section 5.03 of the Standard Terms, the Trustee shall execute,
and the Security Registrar shall authenticate and deliver, in
the name of the Residual Majority or its designee, one or more
new Regular Securities and Residual Securities of the Issuing
Trust in an aggregate principal amount equal to the aggregate
outstanding principal amount of the purchased Securities as of
the date of purchase upon surrender of outstanding
certificates evidencing the Securities, except to the extent
that any of such Securities are in book entry form (in which
case the transfer of such Securities shall be effected as
provided in the Trust Agreement for the book-entry
securities).
In connection with the foregoing, and notwithstanding anything
else to the contrary contained in this Section 9.01 or
elsewhere in this Standard Terms or in the Trust Agreements,
if the Residual Majority elects to purchase the Securities
upon the surrender of the outstanding certificates in physical
form evidencing the same, then (i) such purchase shall not
result in the payment in full of the principal of, or the
cessation of interest payments on, the Securities, (ii)
neither the respective obligations and responsibilities of the
parties under the Trust Agreements, nor the Pooling Trust or
Issuing Trust, shall terminate (notwithstanding the deposit of
funds in respect of such purchase in the respective Asset
Proceeds Account, the Section 3.11 Account or the Termination
Account, as the case may be), (iii) the Mortgage Certificates
shall be treated as remaining outstanding and the Trustee of
the Issuing Trust shall not release any of the Mortgage
Certificates but shall retain such assets as assets of the
Issuing Trust, (iv) the Trustee of the Pooling Trust or the
Custodian, as the case may be, shall not release any of the
Mortgage Loan Files, but shall retain such assets as assets of
the Pooling Trust, (v) neither the Depositor nor the Pooling
Trust or Issuing Trust shall be deemed to have adopted a plan
of liquidation pursuant to Section 9.02 of the Standard Terms,
and (vi) the Master Servicer thereafter shall not elect to
cause a Terminating Purchase, provided, however, that the
Master Servicer thereafter may elect to cause a Terminating
Purchase if the Master Servicer determines, based upon an
Opinion of Counsel, that the REMIC status of any Trust REMIC
has been lost or that a substantial risk exists that such
REMIC status will be lost for the then-current taxable year.
2. As it applies to the Securities issued pursuant to the Trust
Agreements, Section 2.03 of the Standard Terms, as modified by the Pooling Trust
Agreement, is further amended by adding the following new subsection (k):
(k) Purchase of Delinquent Mortgage Loans.
The Holder of the entire Security Principal Balance of the
Class B Securities (the "Class B Holder"), at its option, may
purchase, on any date during a Prepayment
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Period, (i) any Mortgage Loan that is delinquent in payment by
90 days or more and that is in default or with respect to
which default is reasonably foreseeable, or (ii) any Mortgage
Loan with respect to which there has been initiated legal
action or other proceedings for the foreclosure of the
Mortgaged Premises either judicially or non-judicially. The
Class B Holder shall purchase any such Mortgage Loan with its
own funds at a price equal to its outstanding principal
balance plus any accrued but unpaid interest thereon at its
Note Rate through the Accounting Date preceding the
Distribution Date. To the extent that the purchase of any
Mortgage Loan pursuant to this paragraph results in the
imposition of a "prohibited transaction" tax (as such term is
defined in the Code), the Class B Holder shall reimburse the
related REMIC for the amount of such tax; provided, however,
that such reimbursement shall not result in a tax on
contributions pursuant to Code section 860G(d). Promptly
following any such purchase, the Class B Holder shall furnish
a written report to the Rating Agencies indicating the number
and aggregate unpaid principal balance of all Mortgage Loans
repurchased pursuant to this Section 2.03(k).
3. This Amendment to Trust Agreements may be executed in two or more
counterparts, each such counterpart when executed and delivered shall be an
original and all such counterparts together shall be one and the same document.
4. This Amendment to Trust Agreements shall be construed in accordance
with and governed by the laws of the Commonwealth of Virginia applicable to
agreements made and to be performed therein.
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, and the Trustee
have caused this Amendment to Trust Agreements to be duly executed by their
respective officers thereunto duly authorized and their respective signatures
duly attested all as of the 1st day of May, 1997.
FINANCIAL ASSET SECURITIZATION,
INC.,
formerly known as Xxxxxx Mortgage
Securities Corporation, as Depositor
By: /s/ R. Xxxxxx Xxxxx IV
Name: R. Xxxxxx Xxxxx IV
Title: President
NORWEST BANK MINNESOTA, N.A.,
assignee of Xxxxxx Mortgage Company, as
Master Servicer
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW
YORK, assignee of
NationsBank, N.A.,
successor to
Sovran Bank, N.A.,
not in its
individual
capacity, but
solely in its
capacity as
Trustee under the
Trust Agreements
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Treasurer
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By its execution hereof, each of the undersigned holders of the Class
R-1 Securities (being all of the holders of Securities of such Class), and, in
the case of Dynex Capital, Inc., the holder of Securities entitled to at least
66% of the Voting Rights, hereby consents to the terms hereof as of the 1st day
of May, 1997.
DYNEX CAPITAL, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
NORWEST BANK MINNESOTA, N.A.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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COMMONWEALTH OF VIRGINIA )
) ss.
CITY OF RICHMOND )
The foregoing instrument was acknowledged before me in the City of
Richmond, Virginia this 13th day of May, 1997, by R. Xxxxxx Xxxxx IV, President,
of Financial Asset Securitization, Inc., a Virginia corporation, on behalf of
the corporation.
Xxxxx X. Xxxxxxx
Notary Public
My Commission expires: 9/30/98
[SEAL]
STATE OF MARYLAND )
) ss.
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me in the County of
Xxxxxx, Maryland this 23rd day of May, 1997, by Xxxxxxx X. Xxxxx, Vice President
of Norwest Bank Minnesota, N.A., a national banking association, on behalf of
the association.
Xxxxx X. Xxxxxxx
Notary Public
My Commission expires: 8/18/1998
[SEAL]
00
XXXXX XX XXX XXXX )
) ss.
CITY OF NEW YORK )
The foregoing instrument was acknowledged before me in the City of New
York, New York this 30th day of May, 1997, by Xxxxxxxx X. Xxxxxx, as Assistant
Treasurer of The Bank of New York, a New York banking corporation, on behalf of
the association.
Xxxxxxx X. Xxxxxx
Notary Public
My Commission expires: 1/18/98
[SEAL]
COMMONWEALTH OF VIRGINIA )
) ss.
COUNTY OF HENRICO )
The foregoing instrument was acknowledged before me in the County of
Henrico, Virginia this 1st day of May, 1997, by Xxxx X. Xxxxx, Vice President of
Dynex Capital Inc., a Virginia corporation, on behalf of the corporation.
Xxxxxxxxx Xxxxx
Notary Public
My Commission expires: 6/30/00
[SEAL]
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COMMONWEALTH OF VIRGINIA )
) ss.
CITY OF RICHMOND )
The foregoing instrument was acknowledged before me in the City of
Richmond, Virginia this 1st day of May, 1997, by Xxxxxxx X. Xxxx Xx. , Executive
Vice President of SMFC One, Inc., a Virginia corporation, on behalf of the
corporation.
X. Xxxxx
Notary Public
My Commission expires: 1/31/97
[SEAL]
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