SALE AND SERVICING AGREEMENT
dated as of December 1, 2000
by and among
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.,
as Depositor,
ABFS MORTGAGE LOAN TRUST 2000-4,
as Issuer,
AMERICAN BUSINESS CREDIT, INC.,
as Servicer,
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee and Collateral Agent
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.............................................................................................1
Section 1.01. Certain Defined Terms............................................................................1
Section 1.02. Provisions of General Application................................................................1
Section 1.03. Business Day Certificate.........................................................................2
ARTICLE II SALE AND CONVEYANCE OF THE MORTGAGE LOANS..............................................................2
Section 2.01. Purchase and Sale of Mortgage Loans..............................................................2
Section 2.02. [Reserved].......................................................................................3
Section 2.03. Purchase Price...................................................................................3
Section 2.04. Possession of Mortgage Files; Access to Mortgage Files...........................................3
Section 2.05. Delivery of Mortgage Loan Documents..............................................................3
Section 2.06. Acceptance of the Trust Estate; Certain Substitutions; Certification by the Collateral
Agent........................................................................................6
Section 2.07. Grant of Security Interest.......................................................................8
Section 2.08. Further Action Evidencing Assignments............................................................9
Section 2.09. Assignment of Agreement..........................................................................9
ARTICLE III REPRESENTATIONS AND WARRANTIES.......................................................................10
Section 3.01. Representations of the Servicer.................................................................10
Section 3.02. Representations, Warranties and Covenants of the Depositor......................................11
Section 3.03. Representations, Warranties and Covenants of the Collateral Agent...............................12
Section 3.04. Representations, Warranties and Covenants of the Indenture Trustee..............................13
ARTICLE IV THE MORTGAGE LOANS....................................................................................13
Section 4.01. Representations and Warranties Concerning the Mortgage Loans....................................13
Section 4.02. Purchase and Substitution.......................................................................14
ARTICLE V ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS.....................................................15
Section 5.01. The Servicer....................................................................................15
Section 5.02. Collection of Certain Mortgage Loan Payments; Collection Account................................16
Section 5.03. Permitted Withdrawals from the Collection Account...............................................17
Section 5.04. Hazard Insurance Policies; Property Protection Expenses.........................................18
Section 5.05. Assumption and Modification Agreements..........................................................19
Section 5.06. Realization Upon Defaulted Mortgage Loans.......................................................20
Section 5.07. Indenture Trustee to Cooperate..................................................................21
Section 5.08. Servicing Compensation; Payment of Certain Expenses by Servicer.................................21
Section 5.09. Annual Statement as to Compliance...............................................................22
Section 5.10. Annual Independent Public Accountants' Servicing Report.........................................22
Section 5.11. Access to Certain Documentation.................................................................22
Section 5.12. Maintenance of Fidelity Bond....................................................................22
(i)
Section 5.13. The Subservicers................................................................................23
Section 5.14. Reports to the Indenture Trustee; Collection Account Statements.................................23
Section 5.15. Optional Purchase of Defaulted Mortgage Loans...................................................23
Section 5.16. Reports to be Provided by the Servicer..........................................................24
Section 5.17. Adjustment of Servicing Compensation in Respect of Prepaid Mortgage Loans.......................26
Section 5.18. Periodic Advances...............................................................................26
Section 5.19. Indemnification; Third Party Claims.............................................................26
Section 5.20. Maintenance of Corporate Existence and Licenses; Merger or Consolidation of the Servicer........27
Section 5.21. Assignment of Agreement by Servicer; Servicer Not to Resign.....................................28
Section 5.22. Periodic Filings with the Securities and Exchange Commission; Additional Information............28
ARTICLE VI APPLICATION OF FUNDS..................................................................................28
Section 6.01. Deposits to the Payment Account.................................................................28
Section 6.02. Collection of Money.............................................................................29
Section 6.03. Application of Principal and Interest...........................................................29
Section 6.04. Information Concerning the Mortgage Loans.......................................................29
Section 6.05. Compensating Interest...........................................................................29
Section 6.06. Effect of Payments by the Note Insurer; Subrogation.............................................29
ARTICLE VII SERVICER DEFAULT.....................................................................................30
Section 7.01. Servicer Events of Default......................................................................30
Section 7.02. Indenture Trustee to Act; Appointment of Successor..............................................32
Section 7.03. Waiver of Defaults..............................................................................34
Section 7.04. Rights of the Note Insurer to Exercise Rights of the Noteholders................................34
Section 7.05. Indenture Trustee To Act Solely with Consent of the Note Insurer................................35
Section 7.06. Mortgage Loans, Trust Estate and Accounts Held for Benefit of the Note Insurer..................35
Section 7.07. Note Insurer Default............................................................................35
ARTICLE VIII TERMINATION.........................................................................................36
Section 8.01. Termination.....................................................................................36
Section 8.02. Additional Termination Requirements.............................................................37
Section 8.03. Accounting Upon Termination of Servicer.........................................................37
ARTICLE IX THE COLLATERAL AGENT..................................................................................37
Section 9.01. Duties of the Collateral Agent..................................................................37
Section 9.02. Certain Matters Affecting the Collateral Agent..................................................39
Section 9.03. Collateral Agent Not Liable for Notes or Mortgage Loans.........................................40
Section 9.04. Collateral Agent May Own Notes..................................................................40
Section 9.05. Collateral Agent's Fees and Expenses; Indemnity.................................................40
Section 9.06. Eligibility Requirements for Collateral Agent...................................................40
Section 9.07. Resignation and Removal of the Collateral Agent.................................................41
(ii)
Section 9.08. Successor Collateral Agent......................................................................41
Section 9.09. Merger or Consolidation of Collateral Agent.....................................................42
ARTICLE X MISCELLANEOUS PROVISIONS...............................................................................42
Section 10.01. Limitation on Liability........................................................................42
Section 10.02. Acts of Noteholders............................................................................43
Section 10.03. Amendment......................................................................................43
Section 10.04. Recordation of Agreement.......................................................................44
Section 10.05. Duration of Agreement..........................................................................44
Section 10.06. Notices........................................................................................44
Section 10.07. Severability of Provisions.....................................................................45
Section 10.08. No Partnership.................................................................................45
Section 10.09. Counterparts...................................................................................45
Section 10.10. Successors and Assigns.........................................................................45
Section 10.11. Headings.......................................................................................45
Section 10.12. The Note Insurer Default.......................................................................45
Section 10.13. Third Party Beneficiary........................................................................46
Section 10.14. Intent of the Parties..........................................................................46
Section 10.15. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL...................................46
EXHIBITS
EXHIBIT A Contents of the Mortgage File
EXHIBIT B Indenture Trustee's Acknowledgement of Receipt
EXHIBIT C Collateral Agent's Acknowledgement of Receipt
EXHIBIT D Initial Certification of Collateral Agent
EXHIBIT E Final Certification of Collateral Agent
EXHIBIT F Request for Release of Documents
EXHIBIT G [Reserved]
SCHEDULES
SCHEDULE I Mortgage Loan Schedule
(iii)
SALE AND SERVICING AGREEMENT, dated as of December 1, 2000
(this "Agreement"), by and among BEAR XXXXXXX ASSET BACKED SECURITIES, INC., a
Delaware corporation, as depositor (the "Depositor"), ABFS MORTGAGE LOAN TRUST
2000-4, a Delaware statutory business trust, as issuer (the "Trust"), AMERICAN
BUSINESS CREDIT, INC., a Pennsylvania corporation, as servicer (the "Servicer"),
and THE CHASE MANHATTAN BANK, a New York banking corporation, as indenture
trustee and collateral agent (respectively, the "Indenture Trustee" and the
"Collateral Agent").
W I T N E S S E T H
WHEREAS, the Depositor desires to sell to the Trust, and the
Trust desires to purchase from the Depositor, the mortgage loans (the "Mortgage
Loans") listed on Schedule I to this Agreement;
WHEREAS, immediately after such purchase, the Trust will
pledge such Mortgage Loans to the Indenture Trustee pursuant to the terms of an
Indenture, dated as of December 1, 2000 (the "Indenture"), between the Trust and
the Indenture Trustee, and issue the ABFS Mortgage Loan Trust 2000-4, Mortgage
Backed Notes (the "Notes");
WHEREAS, the Servicer has agreed to service the Mortgage
Loans, which constitute the principal assets of the Trust;
WHEREAS, the Collateral Agent will hold, on behalf of the
Indenture Trustee, the Mortgage Loans and certain other assets pledged to the
Indenture Trustee pursuant to the Indenture; and
WHEREAS, Ambac Assurance Corporation (the "Note Insurer") is
intended to be a third-party beneficiary of this Agreement, and is hereby
recognized by the parties hereto as a third-party beneficiary of this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the Trust, the Depositor, the Servicer, the
Collateral Agent and the Indenture Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. Capitalized terms used
herein but not defined herein shall have the meanings ascribed to such terms in
Appendix I attached hereto.
Section 1.02. Provisions of General Application. (a) All
accounting terms not specifically defined herein shall be construed in
accordance with GAAP.
(b) The terms defined herein and in Appendix I to the
Indenture include the plural as well as the singular.
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(c) The words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole. All references to
Articles and Sections shall be deemed to refer to Articles and Sections of this
Agreement.
(d) Any reference to statutes are to be construed as including
all statutory provisions consolidating, amending or replacing the statute to
which reference is made and all regulations promulgated pursuant to such
statutes.
(e) All calculations of interest with respect to the Class A
Notes provided for herein shall be made on the basis of a 360-day year
consisting of twelve 30-day months. All calculations of interest with respect to
any Mortgage Loan provided for herein shall be made in accordance with the terms
of the related Mortgage Note and Mortgage or, if such documents do not specify
the basis upon which interest accrues thereon, on the basis of a 360-day year
consisting of twelve 30-day months, to the extent permitted by applicable law.
(f) Any Mortgage Loan payment is deemed to be received on the
date such payment is actually received by the Servicer; provided, however, that,
for purposes of calculating payments on the Notes, prepayments with respect to
any Mortgage Loan are deemed to be received on the date they are applied in
accordance with Accepted Servicing Practices consistent with the terms of the
related Mortgage Note and Mortgage to reduce the outstanding Principal Balance
of such Mortgage Loan on which interest accrues.
Section 1.03. Business Day Certificate. On the Closing Date
(with respect to the calendar year 2000) and thereafter, within fifteen (15)
days prior to the end of each calendar year while this Agreement remains in
effect (with respect to the succeeding calendar years), the Servicer shall
provide to the Indenture Trustee and the Collateral Agent a certificate of a
Servicing Officer specifying the days on which banking institutions in the
Commonwealth of Pennsylvania are authorized or obligated by law, executive order
or governmental decree to be closed.
ARTICLE II
SALE AND CONVEYANCE OF THE MORTGAGE LOANS
Section 2.01. Purchase and Sale of Mortgage Loans. The
Depositor does hereby sell, transfer, assign, set over and convey to the Trust,
without recourse, but subject to the terms and provisions of this Agreement, all
of the right, title and interest of the Depositor in and to the Mortgage Loans,
including the outstanding principal of, and interest due on, such Mortgage Loans
listed on Schedule I attached hereto, and all other assets included or to be
included in the Trust Estate. In connection with such transfer and assignment,
and pursuant to Section 2.07 of the Unaffiliated Seller's Agreement, the
Depositor does hereby also irrevocably transfer, assign, set over and otherwise
convey to the Trust all of its rights under the Unaffiliated Seller's Agreement,
including, without limitation, its right to exercise the remedies created by
Sections 2.06 and 3.05 of the Unaffiliated Seller's Agreement for defective
documentation and for breaches of certain representations and warranties,
agreements and covenants of the Unaffiliated Seller and the Originators
contained in Sections 3.01, 3.02 and 3.03 of the Unaffiliated Seller's
Agreement.
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Section 2.02. [Reserved]
Section 2.03. Purchase Price. On the Closing Date, as full
consideration for the Depositor's sale of the Mortgage Loans to the Trust, the
Underwriter, on behalf of the Trust, will deliver to, or at the direction of,
the Depositor (i) an amount in cash equal to the sum of (A) 99.75% of the
Original Note Principal Balance as of the Closing Date of the Class A Notes plus
(B) accrued interest on the Original Note Principal Balance of the Class A Notes
at the rate of 7.05% per annum from (and including) December 1, 2000 to (but not
including) the Closing Date, payable by wire transfer of same day funds, and
(ii) the Trust Certificates to be issued pursuant to the Trust Agreement.
Section 2.04. Possession of Mortgage Files; Access to Mortgage
Files. (a) Upon the receipt by the Depositor, or its designee, of the purchase
price for the Mortgage Loans set forth in Section 2.03 hereof and the issuance
of the Notes pursuant to the Indenture, the ownership of each Mortgage Note,
each Mortgage and the contents of the Mortgage File related to each Mortgage
Loan will be vested in the Trust, and will be pledged to the Indenture Trustee,
for the benefit of the Noteholders and the Note Insurer.
(b) Pursuant to Section 2.05 hereof and Section 2.05 of the
Unaffiliated Seller's Agreement, the Unaffiliated Seller has delivered or caused
to be delivered the Indenture Trustee's Mortgage File related to each Mortgage
Loan to the Collateral Agent, on behalf of the Indenture Trustee.
(c) The Collateral Agent will be the custodian, on behalf of
the Indenture Trustee, to hold the Indenture Trustee's Mortgage Files in trust
for the benefit of all present and future Noteholders and the Note Insurer. In
the event the Collateral Agent resigns or is removed, the Indenture Trustee
shall either (x) hold the Indenture Trustee's Mortgage Files, or (y) appoint a
successor Collateral Agent to hold the Indenture Trustee's Mortgage Files as set
forth in Section 9.08 hereof.
(d) The Collateral Agent shall afford the Depositor, the
Trust, the Note Insurer and the Servicer reasonable access to all records and
documentation regarding the Mortgage Loans relating to this Agreement, such
access being afforded at customary charges, upon reasonable prior written
request and during normal business hours at the offices of the Collateral Agent.
Section 2.05. Delivery of Mortgage Loan Documents. (a) In
connection with the transfer and assignment of the Mortgage Loans, the Depositor
shall on or before the Closing Date, deliver, or cause the Unaffiliated Seller
to deliver, to the Collateral Agent, on behalf of the Indenture Trustee (as
pledgee of the Trust pursuant to the Indenture), the following documents or
instruments with respect to each Mortgage Loan so transferred or assigned:
(i) the original Mortgage Note, endorsed without recourse in
blank by the related Originator, including all intervening endorsements
showing a complete chain of endorsement;
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(ii) the related original Mortgage with evidence of recording
indicated thereon or a copy thereof certified by the applicable
recording office;
(iii) the recorded mortgage assignment, or copy thereof
certified by the applicable recording office, if any, showing a
complete chain of assignment from the originator of the related
Mortgage Loan to the related Originator (which assignment may, at such
Originator's option, be combined with the assignment referred to in
subpart (iv) hereof, in which case it must be in recordable form, but
need not have been previously recorded);
(iv) a mortgage assignment in recordable form (which, if
acceptable for recording in the relevant jurisdiction, may be included
in a blanket assignment or assignments) of each Mortgage from the
related Originator to the Indenture Trustee;
(v) originals of all assumption, modification and substitution
agreements in those instances where the terms or provisions of a
Mortgage or Mortgage Note have been modified or such Mortgage or
Mortgage Note has been assumed; and
(vi) an original title insurance policy (or (A) a copy of the
title insurance policy, or (B) a binder thereof or copy of such binder
together with a certificate from the related Originator that the
original Mortgage has been delivered to the title insurance company
that issued such binder for recordation).
In instances where the original recorded Mortgage and a
completed assignment thereof in recordable form cannot be delivered by the
related Originator to the Unaffiliated Seller, and by the Unaffiliated Seller to
the Collateral Agent, on behalf of the Indenture Trustee prior to or
concurrently with the execution and delivery of this Agreement, due to a delay
in connection with recording, the related Originator may:
(x) in lieu of delivering such original recorded Mortgage,
deliver to the Collateral Agent, on behalf of the Indenture Trustee, a copy
thereof; provided, that the related Originator certifies that the original
Mortgage has been delivered to a title insurance company for recordation after
receipt of its policy of title insurance or binder therefor; and
(y) in lieu of delivering the completed assignment in
recordable form, deliver to the Collateral Agent, on behalf of the Indenture
Trustee, the assignment in recordable form, otherwise complete except for
recording information.
The Collateral Agent, at the direction and authority of the
parties to this Agreement, on behalf of the Indenture Trustee, shall promptly
upon receipt thereof, with respect to each Mortgage Note described in Section
2.05(a)(i) hereof and each assignment described in Section 2.05(a)(iv) hereof,
endorse such Mortgage Note and assignment as follows: "The Chase Manhattan Bank,
as Indenture Trustee under the Indenture dated as of December 1, 2000, ABFS
Mortgage Loan Trust 2000-4."
(b) As promptly as practicable, but in any event within thirty
(30) days from the Closing Date, the Unaffiliated Seller shall promptly submit,
or cause to be submitted by the related Originator, for recording in the
appropriate public office for real property records, each
4
assignment referred to in Section 2.05(a)(iv). The Collateral Agent, on behalf
of the Indenture Trustee, shall retain a copy of each assignment submitted for
recording. In the event that any such assignment is lost or returned unrecorded
because of a defect therein, the Unaffiliated Seller or such Originator shall
promptly prepare a substitute assignment or cure such defect, as the case may
be, and thereafter the Unaffiliated Seller or such Originator shall submit each
such assignment for recording. The costs relating to the delivery and
recordation of the documents in connection with the Mortgage Loans as specified
in this Article II shall be borne by the Unaffiliated Seller.
(c) The Unaffiliated Seller or the related Originator shall,
within five (5) Business Days after the receipt thereof, deliver, or cause to be
delivered, to the Collateral Agent, on behalf of the Indenture Trustee: (i) the
original recorded Mortgage and related power of attorney, if any, in those
instances where a copy thereof certified by the related Originator was delivered
to the Collateral Agent, on behalf of the Indenture Trustee; (ii) the original
recorded assignment of Mortgage from the related Originator to the Indenture
Trustee, which, together with any intervening assignments of Mortgage, evidences
a complete chain of assignment from the originator of the Mortgage Loan to the
Indenture Trustee, in those instances where copies of such assignments certified
by the related Originator were delivered to the Collateral Agent, on behalf of
the Indenture Trustee, and (iii) the title insurance policy or title opinion
required in Section 2.05(a)(vi). The Collateral Agent shall review the recorded
assignment to confirm the information contained therein. The Collateral Agent
shall notify the Indenture Trustee, the Note Insurer and the Servicer, of any
defect in such assignment based on such review. The Servicer shall have a period
of sixty (60) days following such notice to correct or cure such defect or to
cause the related Originator to correct or cure such defect.
Notwithstanding anything to the contrary contained in this
Section 2.05, in those instances where the public recording office retains the
original Mortgage, power of attorney, if any, assignment or assignment of
Mortgage after it has been recorded or such original has been lost, the
Unaffiliated Seller or the related Originator shall be deemed to have satisfied
its obligations hereunder upon delivery to the Collateral Agent, on behalf of
the Indenture Trustee, of a copy of such Mortgage, power of attorney, if any,
assignment or assignment of Mortgage certified by the public recording office to
be a true copy of the recorded original thereof.
From time to time the Unaffiliated Seller or the related
Originator may forward, or cause to be forwarded, to the Collateral Agent, on
behalf of the Indenture Trustee, additional original documents evidencing any
assumption or modification of a Mortgage Loan.
(d) All original documents relating to the Mortgage Loans that
are not delivered to the Collateral Agent, on behalf of the Indenture Trustee,
as permitted by Section 2.05(a) hereof are, and shall be, held by the Servicer,
the Unaffiliated Seller or the related Originator, as the case may be, in trust
for the benefit of the Indenture Trustee, on behalf of the Noteholders and the
Note Insurer. In the event that any such original document is required pursuant
to the terms of this Section 2.05 to be a part of an Indenture Trustee's
Mortgage File, such document shall be delivered promptly to the Collateral
Agent, on behalf of the Indenture Trustee. From and after the sale of the
Mortgage Loans to the Trust pursuant hereto, to the extent that the Unaffiliated
Seller or the related Originator retains legal title of record to any Mortgage
Loans prior to the vesting of legal title in the Trust, such title shall be
retained in trust
5
for the Trust as the owner of the Mortgage Loans, and the Indenture Trustee, as
the pledgee of the Trust under the Indenture. In acting as custodian of any
original document which is part of the Indenture Trustee's Mortgage Files, the
Servicer agrees further that it does not and will not have or assert any
beneficial ownership interest in the related Mortgage Loans or the Mortgage
Files. Promptly upon the Servicer's receipt of any such original document, the
Servicer, on behalf of the Trust, shall xxxx conspicuously each such original
document, and its master data processing records with a legend evidencing that
the Trust has purchased the related Mortgage Loan and all right and title
thereto and interest therein, and pledged such Mortgage Loan and all right and
title thereto and interest therein to the Indenture Trustee, on behalf of the
Noteholders and the Note Insurer.
Section 2.06. Acceptance of the Trust Estate; Certain
Substitutions; Certification by the Collateral Agent. (a) The Indenture Trustee
agrees to execute and deliver to the Depositor, the Note Insurer, the Collateral
Agent and the Servicer on or prior to the Closing Date an acknowledgement of
receipt of the Policy in the form attached as Exhibit B hereto.
(b) The Collateral Agent is authorized and directed, on behalf
of the Indenture Trustee, to do the following:
(i) execute and deliver to the Depositor, the Note Insurer,
the Indenture Trustee, the Servicer and the Unaffiliated Seller, on or
prior to the Closing Date, with respect to each Mortgage Loan
transferred on such date, an acknowledgement of receipt of the Mortgage
File containing the original Mortgage Note (with any exceptions noted),
in the form attached as Exhibit C hereto, and declares that it will
hold such documents and any amendments, replacements or supplements
thereto, as well as any other assets included in the definition of
Trust Estate and delivered to the Collateral Agent, on behalf of the
Indenture Trustee, subject to the conditions set forth herein, for the
benefit of the Noteholders and the Note Insurer.
(ii) to review (or cause to be reviewed) each Indenture
Trustee's Mortgage File within thirty (30) days after the Closing Date
(or, with respect to any Qualified Substitute Mortgage Loans, within
thirty (30) days after the receipt by the Collateral Agent, on behalf
of the Indenture Trustee, thereof), and to deliver to the Unaffiliated
Seller, the Servicer, the Depositor, the Indenture Trustee and the Note
Insurer a certification, in the form attached hereto as Exhibit D, to
the effect that, except as otherwise noted, as to each Mortgage Loan
listed in the related Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or any Mortgage Loan specifically identified in such
certification as not covered by such certification), (i) all documents
required to be delivered to it pursuant to Section 2.05 are in its
possession, (ii) each such document has been reviewed by it and
appears, on its face, not to have been mutilated, damaged, torn or
otherwise physically altered (handwritten additions, changes or
corrections shall not constitute physical alteration if they
reasonably appear to have been initialed), appears regular on its face
and relates to such Mortgage Loan, and (iii) based on its examination
and only as to the foregoing documents, the information set forth on
the Mortgage Loan Schedule as to the information set forth in (i),
(ii), (v) and (vi) of the definition of "Mortgage Loan Schedule"
accurately reflects the information set forth in the Indenture
Trustee's Mortgage File delivered on such date.
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(iii) to review (or cause to be reviewed) each Indenture
Trustee's Mortgage File within ninety (90) days after the Closing Date
(or, with respect to any Qualified Substitute Mortgage Loans, within
ninety (90) days after the receipt by the Collateral Agent, on behalf
of the Indenture Trustee, thereof), and to deliver to the Unaffiliated
Seller, the Servicer, the Depositor, the Indenture Trustee, the Rating
Agencies and the Note Insurer a certification in the form attached
hereto as Exhibit E to the effect that, except as otherwise noted, as
to each Mortgage Loan listed in the related Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in such certification as not covered by such
certification), (i) all documents required to be delivered to it
pursuant to Section 2.05 are in its possession, (ii) each such document
has been reviewed by it and has not been mutilated, damaged, torn or
otherwise physically altered (handwritten additions, changes or
corrections shall not constitute physical alteration if they reasonably
appear to be initialed by the Mortgagor), appears regular on its face
and relates to such Mortgage Loan, and (iii) based on its examination
and only as to the foregoing documents, the information set forth in
the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Indenture Trustee's Mortgage File
delivered on such date.
In performing any such review, the Collateral Agent may
conclusively rely on the Unaffiliated Seller as to the purported genuineness of
any such document and any signature thereon. It is understood that the scope of
the Collateral Agent's review of the Indenture Trustee's Mortgage Files is
limited solely to confirming that the documents listed in Section 2.05 have been
executed and received and relate to the Indenture Trustee's Mortgage Files
identified in the related Mortgage Loan Schedule. The Collateral Agent shall be
under no duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that they are genuine,
enforceable, or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
(c) If the Collateral Agent during the process of reviewing
the Indenture Trustee's Mortgage Files finds any document constituting a part of
a Indenture Trustee's Mortgage File which is not executed, has not been
received, is unrelated to the Mortgage Loan identified in the related Mortgage
Loan Schedule, or does not conform to the requirements of Section 2.05 or the
description thereof as set forth in the related Mortgage Loan Schedule, the
Collateral Agent shall promptly so notify the Servicer, the Unaffiliated Seller,
the Originators, the Note Insurer and the Indenture Trustee. Pursuant to Section
2.06(b) of the Unaffiliated Seller's Agreement, the Unaffiliated Seller and the
Originators have agreed to use reasonable efforts to cause to be remedied a
material defect in a document constituting part of an Indenture Trustee's
Mortgage File of which it is so notified by the Collateral Agent. If, however,
within sixty (60) days after the Collateral Agent's notice to it respecting such
defect the Unaffiliated Seller or the Originators have not caused to be remedied
the defect and the defect materially and adversely affects the interest of the
Noteholders and the Note Insurer in the related Mortgage Loan, the Unaffiliated
Seller and the Originators will be obligated, pursuant to Section 3.05 of the
Unaffiliated Seller's Agreement, to either (i) substitute in lieu of such
Mortgage Loan a Qualified Substitute Mortgage Loan in the manner and subject to
the conditions set forth in Section 3.05 of the Unaffiliated Seller's Agreement
or (ii) purchase such Mortgage Loan at a purchase price equal to the Loan
Repurchase Price. Upon receipt by the Collateral Agent and the Indenture Trustee
of a certification, in the form attached hereto as Exhibit F, of a Servicing
7
Officer of such substitution or purchase and, in the case of a substitution,
upon receipt by the Collateral Agent, on behalf of the Indenture Trustee, of the
related Indenture Trustee's Mortgage File, and the deposit of the amounts
described above in the Collection Account, the Collateral Agent shall release to
the Servicer for release to the Unaffiliated Seller the related Indenture
Trustee's Mortgage File and the Indenture Trustee shall execute, without
recourse, and deliver such instruments of transfer furnished by the Unaffiliated
Seller as may be necessary to transfer such Mortgage Loan to the Unaffiliated
Seller. The Collateral Agent shall report to the Indenture Trustee, who shall
notify the Note Insurer if the Unaffiliated Seller fails to repurchase or
substitute for a Mortgage Loan in accordance with the foregoing.
Section 2.07. Grant of Security Interest. (a) It is intended
that the conveyance of the Mortgage Loans and other property by the Depositor to
the Trust as provided in this Article II be, and be construed as, a sale of the
Mortgage Loans and such other property by the Depositor to the Trust. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans or such other property by the Depositor to the Trust to secure a debt or
other obligation of the Depositor. However, in the event that the Mortgage Loans
or any of such other property are held to be property of the Depositor, or if
for any reason this Agreement is held or deemed to create a security interest in
the Mortgage Loans or any of such other property, then it is intended that: (i)
this Agreement shall also be deemed to be a security agreement within the
meaning of the Uniform Commercial Code; (ii) the conveyance provided for in this
Article II shall be deemed to be a grant by the Depositor to the Trust of a
security interest in all of the Depositor's right, title and interest in and to
the Mortgage Loans and such other property and all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including, without limitation,
all amounts from time to time held or invested in the Payment Account, whether
in the form of cash, instruments, securities or other property; (iii) the
possession by the Collateral Agent, on behalf of the Indenture Trustee, of the
Mortgage Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to the Uniform Commercial Code; and (iv) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from financial intermediaries, bailees or agents, as applicable,
of the Indenture Trustee for the purpose of perfecting such security interest
under applicable law. The Depositor, the Servicer, on behalf of the Trust, the
Collateral Agent and the Indenture Trustee, shall, to the extent consistent with
this Agreement, take such actions as may be reasonably necessary to ensure that,
if this Agreement were deemed to create a security interest in the Mortgage
Loans or any of such other property, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and will
be maintained as such throughout the term of this Agreement.
(b) The Unaffiliated Seller, the Depositor and the Servicer
shall take no action inconsistent with the Trust's ownership of the Trust Estate
and each shall indicate or shall cause to be indicated in its records and
records held on its behalf that ownership of each Mortgage Loan and the other
assets in the Trust Estate are held by the Collateral Agent, on behalf of the
Indenture Trustee, for the benefit of the Noteholders and the Note Insurer. The
Collateral Agent is authorized to act, pursuant to the terms of this Agreement,
as agent and bailee of the Indenture
8
Trustee for the benefit of the Noteholders and Note Insurer and shall be
authorized to act at the direction of such parties. In addition, the
Unaffiliated Seller, the Depositor and the Servicer shall respond to any
inquiries from third parties with respect to ownership of a Mortgage Loan or any
other asset in the Trust Estate by stating that it is not the owner of such
asset and that the Trust is the owner of such Mortgage Loan or other asset in
the Trust Estate, which is held by the Collateral Agent, on behalf of the
Indenture Trustee, for the benefit of the Noteholders and the Note Insurer.
Section 2.08. Further Action Evidencing Assignments. (a) The
Servicer agrees that, from time to time, at its expense, it shall cause the
Unaffiliated Seller to (and the Depositor on behalf of itself also agrees that
it shall), promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or appropriate, or that the
Servicer, the Indenture Trustee or the Collateral Agent may reasonably request,
in order to perfect, protect or more fully evidence the transfer of ownership of
the Mortgage Loans and other assets in the Trust Estate or to enable the
Collateral Agent, on behalf of the Indenture Trustee, to exercise or enforce any
of its rights hereunder. Without limiting the generality of the foregoing, the
Servicer and the Depositor will, upon the request of the Servicer, the Indenture
Trustee or the Collateral Agent execute and file (or cause to be executed and
filed) such real estate filings, financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate.
(b) The Depositor hereby grants to the Servicer, the Indenture
Trustee and the Collateral Agent powers of attorney to execute all documents on
its behalf under this Agreement and the Unaffiliated Seller's Agreement as may
be necessary or desirable to effectuate the foregoing.
Section 2.09. Assignment of Agreement. The Depositor hereby
acknowledges and agrees that the Trust may assign its interest under this
Agreement to the Indenture Trustee, for the benefit of the Noteholders and the
Note Insurer, as may be required to effect the purposes of the Indenture,
without further notice to, or consent of, the Depositor, and the Indenture
Trustee shall succeed to such of the rights and obligations of the Trust
hereunder as shall be so assigned. The Trust shall, pursuant to the Indenture,
assign all of its right, title and interest in and to the Mortgage Loans and its
right to exercise the remedies created by Section 2.06 and 3.05 of the
Unaffiliated Seller's Agreement for breaches of the representations, warranties,
agreements and covenants of the Unaffiliated Seller or the Originators contained
in Sections 2.05, 2.06, 3.02 and 3.03 of the Unaffiliated Seller's Agreement,
assign such right, title and interest to the Indenture Trustee, for the benefit
of the Noteholders and the Note Insurer. The Depositor agrees that, upon such
assignment to the Indenture Trustee, such representations, warranties,
agreements and covenants will run to and be for the benefit of the Indenture
Trustee and the Indenture Trustee may enforce, without joinder of the Depositor
or the Trust, the repurchase obligations of the Unaffiliated Seller and the
Originators set forth herein with respect to breaches of such representations,
warranties, agreements and covenants.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations of the Servicer. The Servicer
hereby represents and warrants to the Indenture Trustee, the Depositor, the
Collateral Agent, the Trust, the Note Insurer and the Noteholders as of the
Closing Date and during the term of this Agreement that:
(a) Each of the Servicer and the Subservicers is duly
organized, validly existing and in good standing under the laws of their
respective states of incorporation and has the power to own its assets and to
transact the business in which it is currently engaged. Each of the Servicer and
the Subservicers is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it or the performance of its
obligations hereunder requires such qualification and in which the failure so to
qualify could reasonably be expected to have a material adverse effect on the
business, properties, assets, or condition (financial or other) of the Servicer
or the Subservicers or the performance of their respective obligations
hereunder;
(b) The Servicer has the power and authority to make, execute,
deliver and perform this Agreement and all of the transactions contemplated
under this Agreement, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement, and assuming the due
authorization, execution and delivery hereof by the other parties hereto
constitutes, or will constitute, the legal, valid and binding obligation of the
Servicer, enforceable in accordance with its terms, except as enforcement of
such terms may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the rights of creditors
generally, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(c) The Servicer is not required to obtain the consent of any
other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
which consent already has not been obtained in connection with the execution,
delivery, performance, validity or enforceability of this Agreement, except such
as have been obtained prior to the Closing Date;
(d) The execution, delivery and performance of this Agreement
by the Servicer will not violate any provision of any existing law or regulation
or any order or decree of any court or the charter or bylaws of the Servicer, or
constitute a breach of any mortgage, indenture, contract or other Agreement to
which the Servicer is a party or by which it may be bound;
(e) There is no action, suit, proceeding or investigation
pending or threatened against the Servicer or the Subservicers which, either in
any one instance or in the aggregate, is, in the Servicer's judgment, likely to
result in any material adverse change in the business, operations, financial
condition, properties, or assets of the Servicer or the Subservicers, or in any
material impairment of the right or ability of any of them to carry on its
business substantially as now conducted, or in any material liability on the
part of any of them, or which would draw into question the validity of this
Agreement, the Notes, or the Mortgage Loans or of any action taken
10
or to be taken in connection with the obligations of the Servicer or the
Subservicers contemplated herein or therein, or which would be likely to impair
materially the ability of the Servicer or the Subservicers to perform their
respective obligations hereunder;
(f) Neither this Agreement nor any statement, report, or other
document furnished by the Servicer or the Subservicers pursuant to this
Agreement or in connection with the transactions contemplated hereby, including,
without limitation, the sale or placement of the Notes, contains any untrue
statement of fact provided by or on behalf of the Servicer or omits to state a
fact necessary to make the statements provided by or on behalf of the Servicer
contained herein or therein not misleading:
(g) The Servicer does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant contained in
this Agreement; and
(h) None of the Servicer or the Subservicers is an "investment
company" or a company "controlled by an investment company," within the meaning
of the Investment Company Act of 1940, as amended.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 3.01 shall survive the
delivery of the respective Indenture Trustee's Mortgage Files to the Collateral
Agent, on behalf of the Indenture Trustee or to another custodian, as the case
may be, and inure to the benefit of the Indenture Trustee.
Section 3.02. Representations, Warranties and Covenants of the
Depositor. The Depositor hereby represents, warrants and covenants to the
Indenture Trustee, the Trust, the Collateral Agent and the Servicer that as of
the date of this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to
convey the Mortgage Loans and to execute, deliver and perform, and to enter into
and consummate transactions contemplated by this Agreement;
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Depositor, all requisite corporate action having
been taken, and, assuming the due authorization, execution and delivery hereof
by the other parties hereto, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by the
Depositor with this Agreement or the consummation by the
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Depositor of any of the transactions contemplated hereby, except as have been
made on or prior to the Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or
against or investigations of, the Depositor pending, or to the knowledge of the
Depositor, threatened, before any court, administrative agency or other
tribunal, and no notice of any such action, which, in the Depositor's reasonable
judgment, might materially and adversely affect the performance by the Depositor
of its obligations under this Agreement, or the validity or enforceability of
this Agreement; and
(g) The Depositor is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 3.02 shall survive delivery
of the respective Indenture Trustee's Mortgage Files to the Collateral Agent, on
behalf of the Indenture Trustee or to another custodian, as the case may be, and
shall inure to the benefit of the Indenture Trustee.
Section 3.03. Representations, Warranties and Covenants of the
Collateral Agent. The Collateral Agent hereby represents, warrants and covenants
to the Indenture Trustee, the Trust, the Servicer and the Depositor that as of
the date of this Agreement or as of such date specifically provided herein:
(a) The Collateral Agent is a banking corporation duly
organized, validly existing and in good standing under the laws of the State of
New York;
(b) The Collateral Agent has the corporate power and authority
to execute, deliver and perform, and to enter into and consummate transactions
contemplated by this Agreement; and
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Collateral Agent, all requisite corporate action
having been taken, and, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes or will constitute the legal,
valid and binding agreement of the Collateral Agent, enforceable against
12
the Collateral Agent in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 3.03(b) and 3.03(c) shall
survive delivery of the respective Indenture Trustee's Mortgage Files to the
Collateral Agent, on behalf of the Indenture Trustee or to another custodian, as
the case may be, and shall inure to the benefit of the Indenture Trustee.
Section 3.04. Representations, Warranties and Covenants of the
Indenture Trustee. The Indenture Trustee hereby represents, warrants and
covenants to the Collateral Agent, the Trust, the Servicer and the Depositor
that as of the date of this Agreement or as of such date specifically provided
herein:
(a) The Indenture Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the State of
New York;
(b) The Indenture Trustee has the corporate power and
authority to execute, deliver and perform, and to enter into and consummate
transactions contemplated by this Agreement;
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Indenture Trustee, all requisite corporate action
having been taken, and, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes or will constitute the legal,
valid and binding agreement of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law);
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 3.04 shall survive delivery
of the respective Indenture Trustee's Mortgage Files to the Collateral Agent, on
behalf of the Indenture Trustee or to another custodian, as the case may be.
ARTICLE IV
THE MORTGAGE LOANS
Section 4.01. Representations and Warranties Concerning the
Mortgage Loans. With respect to each Mortgage Loan, the Depositor hereby assigns
to the Trust, pursuant to Section 2.07 of the Unaffiliated Seller's Agreement,
the representations, warranties and covenants of the Unaffiliated Seller and the
Originators set forth in Sections 3.01, 3.02 and 3.03 of the Unaffiliated
Seller's Agreement. Such representations, warranties and covenants are made or
deemed to be made with respect to the Mortgage Loans, as of the Cut-Off Date.
13
Section 4.02. Purchase and Substitution. (a) It is understood
and agreed that the representations and warranties set forth in Sections 3.01,
3.02 and 3.03 of the Unaffiliated Seller's Agreement shall survive the purchase
by the Depositor of the Mortgage Loans, the subsequent transfer thereof by the
Depositor to the Trust, the subsequent pledge thereof by the Trust to the
Indenture Trustee, for the benefit of the Noteholders and the Note Insurer, and
the delivery of the Notes to the Noteholders, and shall continue in full force
and effect, notwithstanding any restrictive or qualified endorsement on the
Mortgage Notes and notwithstanding subsequent termination of this Agreement or
the Unaffiliated Seller's Agreement.
(b) Upon discovery by the Unaffiliated Seller, the Depositor,
the Servicer, any Subservicer, the Indenture Trustee, the Note Insurer or a
Noteholder of a breach of any of the representations and warranties in Sections
3.01, 3.02 or 3.03 of the Unaffiliated Seller's Agreement which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Noteholders or the Note Insurer, or which materially and adversely affects the
interests of the Note Insurer or the Noteholders in the related Mortgage Loan in
the case of a representation and warranty relating to a particular Mortgage Loan
(notwithstanding that such representation and warranty was made to the
Unaffiliated Seller's or the Originator's best knowledge), the party discovering
such breach or failure shall promptly (and in any event within five (5) Business
Days of the discovery) give written notice thereof to the others. Within thirty
(30) Business Days of the earlier of its discovery or its receipt of notice of
any breach of a representation or warranty, the Servicer shall, or shall cause
the Unaffiliated Seller or an Originator to, (a) promptly cure such breach in
all material respects, (b) purchase such Mortgage Loan on the next succeeding
Servicer Payment Date, in the manner and at the price specified in Section
2.06(b) and this Section 4.02, or (c) remove such Mortgage Loan from the Trust
Estate (in which case it shall become a Deleted Mortgage Loan) and substitute
one or more Qualified Substitute Mortgage Loans in the manner specified in
Section 2.06(b) and this Section 4.02. The Collateral Agent shall give prompt
written notice to the Indenture Trustee, who shall deliver such notice to the
Note Insurer and the Rating Agencies of any repurchase or substitution made
pursuant to this Section 4.02 or Section 2.06(b).
(c) As to any Deleted Mortgage Loan for which the Unaffiliated
Seller substitutes a Qualified Substitute Mortgage Loan or Loans, the Servicer
shall cause the Unaffiliated Seller or an Originator, as applicable, to effect
such substitution by delivering to the Indenture Trustee a certification, in the
form attached hereto as Exhibit F, executed by a Servicing Officer, and the
documents described in Sections 2.05(a)(i)-(vi) for such Qualified Substitute
Mortgage Loan or Loans.
(d) The Servicer shall deposit in the Payment Account all
payments received in connection with such Qualified Substitute Mortgage Loan or
Loans after the date of such substitution. Monthly Payments received with
respect to Qualified Substitute Mortgage Loan or Loans on or before the date of
substitution will be retained by the Unaffiliated Seller. The Trust will own all
payments received on the Deleted Mortgage Loan on or before the date of
substitution, and the Unaffiliated Seller shall thereafter be entitled to retain
all amounts subsequently received in respect of such Deleted Mortgage Loan. The
Servicer shall give written notice to the Indenture Trustee, the Collateral
Agent and the Note Insurer that such substitution has taken place and shall
amend the Mortgage Loan Schedule to reflect the removal
14
of such Deleted Mortgage Loan from the terms of this Agreement and the
substitution of the Qualified Substitute Mortgage Loan or Loans. Upon such
substitution, such Qualified Substitute Mortgage Loan or Loans shall be subject
to the terms of this Agreement in all respects.
(e) With respect to any Mortgage Loan that has been converted
to an REO Mortgage Loan, all references in this Section 4.02 or Section 2.06 to
"Mortgage Loan" shall be deemed to also refer to the REO Mortgage Loan. With
respect to any Mortgage Loan that the Servicer, Originator or Unaffiliated
Seller is required to repurchase that is or becomes a Liquidated Mortgage Loan,
in lieu of repurchasing such Mortgage Loan, the Servicer, Originator or
Unaffiliated Seller shall deposit into the Payment Account, pursuant to Section
8.01 of the Indenture, an amount equal to the amount of the Liquidated Loan
Loss, if any, incurred in connection with the liquidation of such Mortgage Loan
within the same time period in which the Servicer, Originator or Unaffiliated
Seller would have otherwise been required to repurchase such Mortgage Loan.
(f) It is understood and agreed that the obligations of the
Unaffiliated Seller and the Originators set forth in Sections 2.06 and 3.05 of
the Unaffiliated Seller's Agreement to, and the Servicer's obligation set forth
in this Section 4.02 to cause the Unaffiliated Seller and the Originators to,
cure, purchase or substitute for a defective Mortgage Loan, or to indemnify as
described in Section 3.05(g) of the Unaffiliated Seller's Agreement, constitute
the sole remedies of the Indenture Trustee, the Collateral Agent, the Note
Insurer and the Noteholders respecting a breach of the representations and
warranties of the Unaffiliated Seller and the Originators set forth in Sections
3.01, 3.02 and 3.03 of the Unaffiliated Seller's Agreement.
(g) Pursuant to Section 3.05(g) of the Unaffiliated Seller's
Agreement, the Unaffiliated Seller and the Originators shall be obligated to
indemnify the Indenture Trustee, the Depositor, the Trust, the Owner Trustee,
the Collateral Agent, the Noteholders and the Note Insurer for any third party
claims arising out of a breach by the Unaffiliated Seller or the related
Originator of representations or warranties regarding the Mortgage Loans.
(h) Pursuant to Section 3.05(h) of the Unaffiliated Seller's
Agreement, the Unaffiliated Seller and each of the Originators shall be jointly
and severally responsible for any repurchase, cure or substitution obligation of
the Unaffiliated Seller or any of the Originators under this Agreement, the
Unaffiliated Seller's Agreement or the Indenture.
ARTICLE V
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 5.01. The Servicer. (a) The Servicer shall service and
administer the Mortgage Loans in accordance with the Accepted Servicing
Practices and shall have full power and authority to do any and all things not
inconsistent therewith in connection with such servicing and administration
which it may deem necessary or desirable subject to the limitations set forth in
this Agreement. The Indenture Trustee shall furnish the Servicer with any powers
of attorney and other documents necessary or appropriate to enable the Servicer
to carry out its servicing and administrative duties hereunder. Without limiting
the generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered by the Indenture Trustee, to
15
execute and deliver, on behalf of itself, the Noteholders and the Indenture
Trustee or any of them, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge and all other comparable instruments,
and to effect such modifications, waivers, indulgences and other like matters as
are in its judgment necessary or desirable, with respect to the Mortgage Loans
and the Mortgaged Properties and the servicing and administration thereof. The
Servicer shall notify the Indenture Trustee of any such waiver, release,
discharge, modification, indulgence or other such matter by delivering to the
Indenture Trustee an Officer's Certificate certifying that such agreement is in
compliance with this Section 5.01 together with the original copy of any written
agreement or other document executed in connection therewith, all of which
written agreements or documents shall, for all purposes, be considered a part of
the related Indenture Trustee's Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. Notwithstanding anything
in this Agreement to the contrary, the Servicer shall not permit any
modification with respect to any Mortgage Loan unless (i) the modifications do
not decrease the Mortgage Interest Rate, reduce or increase the principal
balance, decrease the lien priority, increase the current LTV above the lesser
of the current LTV or the original LTV, or change the final maturity date on or
of such Mortgage Loan and (ii) the Note Insurer consents to such modifications
in writing; provided, however, that the Servicer shall be permitted to extend
the final maturity date on any Mortgage Loan by 180 days or less without the
consent of the Note Insurer.
(b) The relationship of the Servicer (and of any successor to
the Servicer as servicer under this Agreement) to the Indenture Trustee under
this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
(c) The Servicer agrees to give notice as required under
Section 3.07 and Section 3.13 of the Indenture.
Section 5.02. Collection of Certain Mortgage Loan Payments;
Collection Account. (a) The Servicer shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans,
and shall, to the extent such procedures shall be consistent with this
Agreement, follow the Accepted Servicing Practices. Consistent with the
foregoing, the Servicer may in its sole discretion waive any assumption fees or
other fees which may be collected in the ordinary course of servicing such
Mortgage Loans.
(b) The Servicer shall establish and maintain, in the name of
the Indenture Trustee, the Collection Account, in trust for the benefit of the
Noteholders and the Note Insurer. The Collection Account shall be established
and maintained as an Eligible Account.
(c) The Servicer shall deposit, or cause to be deposited, in
the Collection Account any amounts representing Monthly Payments on the Mortgage
Loans due or to be applied as of a date after the related Cut-Off Date, and
thereafter, on each Business Day (except as otherwise permitted herein), the
following payments and collections received or made by it (other than in respect
of principal collected and interest due on the Mortgage Loans on or before the
related Cut-Off Date):
(i) payments of interest on the Mortgage Loans;
16
(ii) payments of principal of the Mortgage Loans;
(iii) the Loan Repurchase Price of Mortgage Loans repurchased
pursuant to Sections 2.06, 4.02 or 5.05;
(iv) the Substitution Adjustment received in connection with
Mortgage Loans for which Qualified Substitute Mortgage Loans are
received pursuant to Sections 2.06 and 4.02;
(v) all Liquidation Proceeds; and
(vi) all Insurance Proceeds (including, for this purpose, any
amounts required to be deposited by the Servicer pursuant to Section
5.04 hereof).
It is understood that the Servicer need not deposit amounts representing
assumption fees, prepayment premiums, late payment charges or extension or other
administrative fees or charges payable by Mortgagors, or amounts received by the
Servicer for the account of Mortgagors for application towards the payment of
taxes, insurance premiums, assessments and similar items.
(d) The Servicer shall invest any funds in the Collection
Account in Permitted Investments, which shall mature not later than the Business
Day next preceding the Servicer Payment Date next following the date of such
investment (except that any investment held by the Indenture Trustee may mature
on such Servicer Payment Date) and shall not be sold or disposed of prior to its
maturity. All net income and gain realized from any such investment shall be for
the benefit of the Servicer and shall be subject to its withdrawal or order on a
Servicer Payment Date. The Servicer shall deposit from its own funds the amount
of any loss, to the extent not offset by investment income or earnings, in the
Collection Account upon the realization of such loss.
Section 5.03. Permitted Withdrawals from the Collection
Account. The Servicer may make withdrawals from the Collection Account, on or
prior to any Servicer Payment Date, for the following purposes:
(a) to reimburse the Servicer for Liquidation Expenses
theretofore incurred in respect of any Mortgage Loan in an amount not to exceed
the amount of the sum of the related Insurance Proceeds and Liquidation Proceeds
deposited in the Collection Account pursuant to Section 5.02(c)(v)-(vi);
(b) to reimburse the Servicer for amounts expended by it
pursuant to Section 5.04 in good faith in connection with the restoration of
damaged property, in an amount not to exceed the amount of the related Insurance
Proceeds and Liquidation Proceeds (net of withdrawals pursuant to Section
5.03(a)) and amounts representing proceeds of other insurance policies covering
the property subject to the related Mortgage deposited in the Collection Account
pursuant to Section 5.02(c)(v)-(vi);
(c) to pay to the Unaffiliated Seller amounts received in
respect of any Defective Mortgage Loan purchased or substituted for by the
Unaffiliated Seller to the extent that the payment of any such amounts on the
Servicer Payment Date upon which the proceeds of
17
such purchase are paid would make the total amount distributed in respect of any
such Mortgage Loan on such Servicer Payment Date greater than the Loan
Repurchase Price or the Substitution Adjustment therefor;
(d) to reimburse the Servicer for unreimbursed Servicing
Advances, without interest, with respect to the Mortgage Loans for which it has
made a Servicing Advance, from subsequent collections with respect to interest
on such Mortgage Loans and from Liquidation Proceeds, Insurance Proceeds and/or
the Loan Repurchase Price or Substitution Adjustment of or relating to such
Mortgage Loans;
(e) to reimburse the Servicer for any Periodic Advances
determined in good faith to have become Nonrecoverable Advances, such
reimbursement to be made from any funds in the Collection Account;
(f) to withdraw any amount received from a Mortgagor that is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the Bankruptcy Code in accordance with a final,
nonappealable order of a court having competent jurisdiction;
(g) to withdraw any Net Foreclosure Profits;
(h) to withdraw any funds deposited in the Collection Account
that were not required to be deposited therein; and
(i) to pay the Servicer the Servicing Compensation pursuant to
Section 5.08 hereof to the extent not retained or paid.
The Servicer shall keep and maintain a separate accounting for
each Mortgage Loan for the purpose of accounting for withdrawals from the
Collection Account pursuant to this Section 5.03.
Section 5.04. Hazard Insurance Policies; Property Protection
Expenses. (a) The Servicer shall cause to be maintained for each Mortgage Loan a
hazard insurance policy with extended coverage which contains a standard
mortgagee's clause with an appropriate endorsement in an amount equal to the
lesser of (x) the maximum insurable value of the related Mortgaged Property or
(y) the sum of the Principal Balance of such Mortgage Loan plus the outstanding
balance of any mortgage loan senior to such Mortgage Loan, but in no event shall
such amount be less than is necessary to prevent the Mortgagor from becoming a
coinsurer thereunder. The Servicer shall also maintain on property acquired upon
foreclosure, or by deed in lieu of foreclosure, hazard insurance with extended
coverage in an amount which is at least equal to the lesser of (i) the maximum
insurable value from time to time of the improvements which are a part of such
property or (ii) the sum of the Principal Balance of such Mortgage Loan and the
principal balance of any mortgage loan senior to such Mortgage Loan at the time
of such foreclosure plus accrued interest and the good-faith estimate of the
Servicer of related Liquidation Expenses to be incurred in connection therewith.
Amounts collected by the Servicer under any such policies shall be deposited in
the Collection Account to the extent that they constitute Liquidation Proceeds
or Insurance Proceeds. Each hazard insurance policy shall contain a standard
mortgagee clause naming the Originator, its successors and assigns, as
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mortgagee. The Servicer shall be under no obligation to require that any
Mortgagor maintain earthquake or flood or other additional insurance and shall
be under no obligation itself to maintain any such additional insurance on
property acquired in respect of a Mortgage Loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
(b) If the Servicer shall obtain and maintain a blanket policy
issued by an insurer acceptable to the Rating Agencies and the Note Insurer
insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in Section
5.04(a), it being understood and agreed that such policy may contain a
deductible clause, in which case the Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property a policy
complying with Section 5.04(a), and there shall have been a loss which would
have been covered by such policy, deposit in the Collection Account the amount
not otherwise payable under the blanket policy because of such deductible
clause.
(c) If the Mortgaged Property or REO Property is located at
the time of origination of the Mortgage Loan in a federally designated special
flood hazard area (and if the flood insurance policy referenced herein has been
made available), the Servicer will cause to be maintained flood insurance in
respect thereof. Such flood insurance shall be in an amount equal to the lesser
of (i) the sum of the Principal Balance of the related Mortgage Loan and the
principal balance of the related first lien, if any, (ii) the maximum insurable
value of the related Mortgaged Property, or (iii) the maximum amount of such
insurance available for the related Mortgaged Property under the national flood
insurance program (assuming that the area in which such Mortgaged Property is
located is participating in such program).
Section 5.05. Assumption and Modification Agreements. In any
case in which a Mortgaged Property has been or is about to be conveyed by the
Mortgagor, the Servicer shall, to the extent permitted by law, exercise its
right to accelerate the maturity of the related Mortgage Loan and require that
the Principal Balance thereof be paid in full on or prior to such conveyance by
the Mortgagor under any "due-on-sale" clause applicable thereto. If such
"due-on-sale" clause, by its terms, is not operable or the Servicer is
prevented, as provided in the last paragraph of this Section 5.05, from
enforcing any such clause, the Servicer is authorized, subject to the consent of
the Note Insurer, to take or enter into an assumption and modification agreement
from or with the Person to whom such property has been or is about to be
conveyed, pursuant to which such Person becomes liable under the Mortgage Note
and the Mortgagor remains liable thereon or, if the Servicer in its reasonable
judgment finds it appropriate, is released from liability thereon. The Servicer
shall notify the Indenture Trustee and the Collateral Agent that any assumption
and modification agreement has been completed by delivering to the Indenture
Trustee, the Collateral Agent and the Note Insurer an Officer's Certificate
certifying that such agreement is in compliance with this Section 5.05 together
with the original copy of such assumption and modification agreement. Any such
assumption and modification agreement shall, for all purposes, be considered a
part of the related Mortgage File to the same extent as all other documents and
instruments constituting a part thereof. In connection with any such agreement,
the then current Mortgage Interest Rate thereon shall not be increased or
decreased. Any fee collected by the Servicer for entering into any such
agreement will be retained by the Servicer as additional servicing compensation.
At its sole election, the Servicer may purchase
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from the Trust any Mortgage Loan that has been assumed in accordance with this
Section 5.05 within one month after the date of such assumption at a price equal
to the greater of (i) the fair market value of such Mortgage Loan (as determined
by the Servicer in its good faith judgment) and (ii) the Loan Repurchase Price.
Such amount, if any, shall be deposited into the Collection Account in the Due
Period in which such repurchase is made.
Notwithstanding the foregoing paragraph of this Section 5.05
or any other provision of this Agreement, the Servicer shall not be deemed to be
in default, breach or any other violation of its obligations hereunder by reason
of any assumption of a Mortgage Loan, or transfer of any Mortgaged Property
without the assumption thereof, by operation of law or any assumption or
transfer which the Servicer reasonably believes it may be restricted by law from
preventing for any reason whatsoever.
Section 5.06. Realization Upon Defaulted Mortgage Loans. (a)
The Servicer shall foreclose upon or otherwise comparably convert to ownership
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Section 5.02(a). If required by
its Accepted Servicing Practices, the Servicer shall, prior to conducting any
sale in a foreclosure proceeding or accepting a deed-in-lieu of foreclosure with
respect to any Mortgaged Property, cause an environmental review to be
performed, on the Mortgaged Property by a company such as Equifax, Inc. or
Toxicheck. If such review reveals that the Mortgaged Property has on it, under
it or is near hazardous or toxic material or waste or reveals any other
environmental problem, the Servicer shall not foreclose or record a deed-in-lieu
of foreclosure, without the prior written consent of the Note Insurer, such
consent not to be unreasonably withheld or delayed. In connection with such
foreclosure or other conversion, the Servicer shall follow such practices
(including, in the case of any default on a related senior mortgage loan, the
advancing of funds to correct such default) and procedures which are consistent
with Accepted Servicing Practices as it shall deem necessary or advisable and as
shall be normal and usual in its general first and second mortgage loan
servicing activities. Notwithstanding the foregoing, the Servicer shall not be
required to expend its own funds in connection with any foreclosure or towards
the correction of any default on a related senior mortgage loan or restoration
of any property unless, in the reasonable judgment of the Servicer, such
expenses will be recoverable from Liquidation Proceeds.
(b) In the event that title to any Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Servicer in trust for the Indenture
Trustee, or to its nominee, on behalf of Noteholders and the Note Insurer.
(c) Any Insurance Proceeds or Liquidation Proceeds received
with respect to a Mortgage Loan or REO Property (other than received in
connection with a purchase by the Trust Certificateholders of all the Mortgage
Loans and REO Properties in the Trust Estate pursuant to Section 10.01 of the
Indenture) will be applied in the following order of priority, in each case to
the extent of Available Funds: first, to pay the Servicer any accrued and unpaid
Servicing Fees relating to such Mortgage Loan; second, to reimburse the Servicer
or any Subservicer for any related unreimbursed Servicing Advances, and any
related unreimbursed Periodic Advances theretofore funded by the Servicer or any
Subservicer from its own funds, in each case, with respect to the related
Mortgage Loan; third, to accrued and unpaid interest on the
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Mortgage Loan, at the Mortgage Interest Rate (or at such lesser rate as may be
in effect for such Mortgage Loan pursuant to application of the Relief Act) on
the Principal Balance of such Mortgage Loan, to the date such Mortgage Loan is
determined to be a Liquidated Mortgage Loan if it is a Liquidated Mortgage Loan,
or to the Due Date in the Due Period prior to the Payment Date on which such
amounts are to be paid if such determination has not yet been made, minus any
unpaid Servicing Fees with respect to such Mortgage Loan; fourth, to the extent
of the Principal Balance of the Mortgage Loan outstanding immediately prior to
the receipt of such proceeds, as a recovery of principal of the related Mortgage
Loan; and fifth, to any prepayment or late payment charges or penalty interest
payable in connection with the receipt of such proceeds and to all other fees
and charges due and payable with respect to such Mortgage Loan. The amount of
any gross Insurance Proceeds and Liquidation Proceeds received with respect to
any Mortgage Loan or REO Property minus the amount of any unreimbursed Servicing
Advances, unreimbursed Periodic Advances or unpaid Servicing Fees, in each case,
with respect to the related Mortgage Loan, are the "Net Recovery Proceeds" with
respect to such Mortgage Loan or REO Property.
Section 5.07. Indenture Trustee to Cooperate. Upon the payment
in full of the Principal Balance of any Mortgage Loan, the Servicer will notify
the Indenture Trustee and the Collateral Agent by a certification (which
certification shall include a statement to the effect that all amounts received
in connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 5.02 have been so deposited) of a
Servicing Officer. Upon any such payment in full, the Servicer is authorized to
execute, pursuant to the authorization contained in Section 5.01, an instrument
of satisfaction regarding the related Mortgage, which instrument of satisfaction
shall be recorded by the Servicer if required by applicable law and be delivered
to the Person entitled thereto, it being understood and agreed that no expenses
incurred in connection with such instrument of satisfaction shall be reimbursed
from the Collection Account. From time to time and as appropriate for the
servicing or foreclosure of any Mortgage Loan, the Collateral Agent shall, upon
request of the Servicer and delivery to the Collateral Agent of a Request for
Release signed by a Servicing Officer, release the related Mortgage File to the
Servicer and shall execute, as Collateral Agent on behalf of the Indenture
Trustee, such documents as shall be necessary for the prosecution of any such
proceedings. Such Request for Release shall obligate the Servicer to return the
Indenture Trustee's Mortgage File to the Collateral Agent 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 Request for Release shall be released by the
Collateral Agent to the Servicer.
Section 5.08. Servicing Compensation; Payment of Certain
Expenses by Servicer. On each Payment Date, the Servicer shall be entitled to
receive, and the Indenture Trustee shall pay, out of collections on the Mortgage
Loans for the Due Period, as servicing compensation for such Due Period, an
amount (the "Monthly Servicing Fee") equal to the product of one-twelfth of the
Servicing Fee Rate and the aggregate outstanding Principal Balance of the
Mortgage Loan Pool as of the beginning of such Due Period. Additional servicing
compensation in the form of assumption fees, prepayment premiums, late payment
charges or extension and other administrative charges shall be retained by the
Servicer. The Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder (including payment of all fees and
expenses of the Subservicer), payment of the Indenture
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Trustee Fee to the extent that monies in the Collection Account are insufficient
therefor, as provided in Section 6.16 of the Indenture and payment of the
Collateral Agent Fee as provided in Section 9.05 hereof, and all other fees and
expenses not expressly stated hereunder to be payable by or from another source
and shall not be entitled to reimbursement therefor except as specifically
provided herein.
Section 5.09. Annual Statement as to Compliance. The Servicer
will deliver to the Indenture Trustee, the Collateral Agent, the Rating
Agencies, the Depositor, the Note Insurer and each Noteholder, on or before
April 30 of each year, beginning April 30, 2002, an Officer's Certificate of the
Servicer stating that (a) a review of the activities of the Servicer during the
preceding calendar year and of its performance under this Agreement has been
made under such officer's supervision and (b) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all its material
obligations under this Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof.
Section 5.10. Annual Independent Public Accountants' Servicing
Report. On or before April 30 of each year, beginning April 30, 2002, the
Servicer at its expense shall cause a firm of independent public accountants
that is a member of the American Institute of Certified Public Accountants (who
may also render other services to the Servicer) to furnish a report to the
Indenture Trustee, the Collateral Agent, the Depositor, the Rating Agencies and
each Noteholder to the effect that such firm has examined certain documents and
records relating to the servicing of mortgage loans under servicing agreements
(including this Agreement) substantially similar to this Agreement, and that
such examination, which has been conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers (to the extent that the
procedures in such audit guide are applicable to the servicing obligations set
forth in such agreements), has disclosed no items of noncompliance with the
provisions of this Agreement which, in the opinion of such firm, are material,
except for such items of noncompliance as shall be set forth in such report.
Section 5.11. Access to Certain Documentation. The Servicer
shall permit the designated agents or representatives of each Noteholder, the
Note Insurer, the Collateral Agent and the Indenture Trustee (i) to examine and
make copies of and abstracts from all books, records and documents (including
computer tapes and disks) in the possession or under the control of the Servicer
relating to the Mortgage Loans and (ii) to visit the offices and properties of
the Servicer for the purpose of examining such materials and to discuss matters
relating to the Mortgage Loans and the Servicer's performance under this
Agreement with any of the officers of the Servicer having knowledge thereof and
with the independent public accountants of the Servicer (and by this provision
the Servicer authorizes its accountants to discuss their respective finances and
affairs), all at such reasonable times, as often as may be reasonably requested
and without charge to such Noteholder, the Note Insurer, the Collateral Agent or
the Indenture Trustee.
Section 5.12. Maintenance of Fidelity Bond. The Servicer shall
during the term of its service as Servicer maintain in force a fidelity bond and
errors and omissions insurance in respect of its officers, employees or agents.
Such bond and insurance shall comply with the
22
requirements from time to time of the FNMA for Persons performing servicing for
mortgage loans purchased by such association.
Section 5.13. The Subservicers. The parties acknowledge that
the Servicer intends to appoint the Subservicers as the Servicer's agents for
the purpose of servicing on the Servicer's behalf such of the Mortgage Loans as
were originated by such Subservicer. The Servicer agrees to cause the
Subservicers to service such Mortgage Loans in a manner consistent with the
Accepted Servicing Practices set forth in this Agreement, and agrees that
receipt by the Subservicers of any and all amounts which by the terms hereof are
required to be deposited in the Collection Account shall constitute receipt
thereof by the Servicer for all purposes hereof as of the date so received by
the Subservicers. Notwithstanding such designation of the Subservicers, the
Servicer agrees that it is, and it shall remain, fully obligated under the terms
hereof as Servicer with respect to all such Mortgage Loans, and nothing herein
shall relieve or release the Servicer from its obligations to the other parties
hereto to service such Mortgage Loans in the manner provided in this Agreement.
Section 5.14. Reports to the Indenture Trustee; Collection
Account Statements. Not later than fifteen (15) days after each Payment Date,
the Servicer shall provide to the Indenture Trustee, the Collateral Agent and
the Note Insurer a statement, certified by a Servicing Officer, setting forth
the status of the Collection Account as of the close of business on the related
Payment Date, stating that all payments required by this Agreement to be made by
the Servicer on behalf of the Indenture Trustee have been made (or if any
required payment has not been made by the Servicer, specifying the nature and
status thereof) and showing, for the period covered by such statement, the
aggregate of deposits into and withdrawals from the Collection Account for each
category of deposit specified in Section 5.02 and each category of withdrawal
specified in Section 5.03 and the aggregate of deposits into the Collection
Account as specified in Section 6.01. Such statement shall also state the
aggregate unpaid principal balance of all the Mortgage Loans as of the close of
business on the last day of the month preceding the month in which such Payment
Date occurs. Copies of such statement shall be provided by the Indenture Trustee
to any Noteholder upon request.
Section 5.15. Optional Purchase of Defaulted Mortgage Loans.
(a) Subject to Sections 5.15(b) and 5.15(c), the Unaffiliated Seller or any
Affiliate of the Unaffiliated Seller, in its sole discretion, shall have the
right to elect (by written notice sent to the Servicer, the Indenture Trustee
and the Note Insurer), but shall not be obligated, to purchase for its own
account from the Trust any Mortgage Loan which is ninety (90) days or more
Delinquent in the manner and at the Loan Purchase Price (except that the amount
described in clause (ii) of the definition of Loan Purchase Price shall in no
case be net of the Servicing Fee). The purchase price for any Mortgage Loan
purchased hereunder shall be deposited in the Collection Account and the
Collateral Agent, upon the Indenture Trustee's receipt of such deposit, shall
release or cause to be released to the purchaser of such Mortgage Loan the
related Indenture Trustee's Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the purchaser of such Mortgage
Loan, in each case without recourse, as shall be necessary to vest in the
purchaser of such Mortgage Loan any Mortgage Loan released pursuant hereto and
the purchaser of such Mortgage Loan shall succeed to all the Indenture Trustee's
right, title and interest in and to such Mortgage Loan and all security and
documents related thereto. Such assignment shall be an assignment outright and
not for security. The purchaser of such Mortgage
23
Loan shall thereupon own such Mortgage Loan, and all security and documents,
free of any further obligation to the Indenture Trustee, the Collateral Agent,
the Note Insurer or the Noteholders with respect thereto. The purchaser of such
Mortgage Loan shall give written notice to the Note Insurer of the means by
which any Mortgage Loan purchased pursuant to this Section 5.15 is ultimately
disposed of.
(b) After the Unaffiliated Seller or an Affiliate of the
Unaffiliated Seller has repurchased any Mortgage Loans which are 90 days or more
Delinquent in an Aggregate Principal Balance equal to 2% of the Maximum
Collateral Amount, then notwithstanding the foregoing, unless the Note Insurer
consents, any such Unaffiliated Seller or Affiliate of the Unaffiliated Seller
may only exercise its option pursuant to this Section 5.15 with respect to the
Mortgage Loan or Mortgage Loans that have been Delinquent for the longest period
at the time of such repurchase. Any request by the Unaffiliated Seller or
Affiliate to the Note Insurer for consent to repurchase Mortgage Loans that are
not the most Delinquent shall be accompanied by a description of the Mortgage
Loans that have been Delinquent longer than the Mortgage Loan or Mortgage Loans
the Unaffiliated Seller or such Affiliate proposes to repurchase. If the Note
Insurer fails to respond to such request within ten (10) Business Days after
receipt thereof, the Unaffiliated Seller or such Affiliate may repurchase the
Mortgage Loan or Mortgage Loans proposed to be repurchased without the consent
of, or any further action by, the Note Insurer. Notice to the Note Insurer shall
be delivered in accordance with the terms of the Insurance and Indemnity
Agreement.
(c) After the Unaffiliated Seller or an Affiliate of the
Unaffiliated Seller has repurchased any Mortgage Loans which are 90 days or more
Delinquent in an Aggregate Principal Balance equal to 5% of the Maximum
Collateral Amount, then notwithstanding the foregoing, unless the Note Insurer
consents, any such Unaffiliated Seller or Affiliate of the Unaffiliated Seller
may not repurchase such additional Mortgage Loans.
Section 5.16. Reports to be Provided by the Servicer.
(a) On each Servicer Payment Date, the Servicer shall deliver
to the Indenture Trustee and the Note Insurer (i) a Noteholder Statement and
(ii) a Servicer Remittance Report for such Servicer Payment Date setting forth
the following information with respect to all Mortgage Loans as well as a break
out as to consumer purpose and business purpose Mortgage Loans, in each case, as
of the close of business on the last Business Day of the prior calendar month
(except as otherwise provided in clause (v) below):
(i) the total number of Mortgage Loans and the Aggregate
Principal Balances thereof, together with the number, Aggregate
principal balances of such Mortgage Loans and the percentage (based on
the Aggregate Principal Balances of the Mortgage Loans) of the
Aggregate Principal Balances of such Mortgage Loans to the Aggregate
Principal Balance of all Mortgage Loans (A) 31-59 days Delinquent, (B)
60-89 days Delinquent and (C) 90 or more days Delinquent;
(ii) the number, Aggregate Principal Balances of all Mortgage
Loans and percentage (based on the Aggregate Principal Balances of the
Mortgage Loans) of the Aggregate Principal Balances of such Mortgage
Loans to the aggregate Principal Balance
24
of all Mortgage Loans in foreclosure proceedings and the number,
Aggregate Principal Balances of all Mortgage Loans and percentage
(based on the Aggregate Principal Balances of the Mortgage Loans) of
any such Mortgage Loans also included in any of the statistics
described in the foregoing clause (i);
(iii) the number, Aggregate Principal Balances of all Mortgage
Loans and percentage (based on the Aggregate Principal Balances of the
Mortgage Loans) of the Aggregate Principal Balances of such Mortgage
Loans to the Aggregate Principal Balance of all Mortgage Loans relating
to Mortgagors in bankruptcy proceedings and the number, Aggregate
Principal Balances of all Mortgage Loans and percentage (based on the
Aggregate Principal Balances of the Mortgage Loans) of any such
Mortgage Loans also included in any of the statistics described in the
foregoing clause (i);
(iv) the number, Aggregate Principal Balances of all Mortgage
Loans and percentage (based on the Aggregate Principal Balances of the
Mortgage Loans) of the Aggregate Principal Balances of such Mortgage
Loans to the Aggregate Principal Balance of all Mortgage Loans relating
to REO Properties and the number, Aggregate Principal Balances of all
Mortgage Loans and percentage (based on the Aggregate Principal
Balances of the Mortgage Loans) of any such Mortgage Loans also
included in any of the statistics described in the foregoing clause
(i);
(v) the weighted average Mortgage Interest Rate as of the Due
Date occurring in the Due Period related to such Payment Date;
(vi) the weighted average remaining term to stated maturity of
all Mortgage Loans;
(vii) the book value of any REO Property;
(viii) the Cumulative Loan Losses and the aggregate Cumulative
Loan Losses since the Closing Date; and
(ix) the total number of Mortgage Loans and the Aggregate
Principal Balance of the Mortgage Loans.
(b) In connection with the transfer of the Notes, the
Indenture Trustee on behalf of any Noteholder may request that the Servicer make
available to any prospective Noteholder annual audited financial statements of
the Servicer for one or more of the most recently completed five (5) fiscal
years for which such statements are publicly available, which request shall not
be unreasonably denied or unreasonably delayed. Such annual audited financial
statements also shall be made available to the Note Insurer upon request.
(c) The Servicer also agrees, upon reasonable advanced written
notice, to make available on a reasonable basis to the Note Insurer or any
prospective Noteholder a knowledgeable financial or accounting officer for the
purpose of answering reasonable questions respecting recent developments
affecting the Servicer or the financial statements of the Servicer and to permit
the Note Insurer or any prospective Noteholder to inspect the Servicer's
servicing facilities during normal business hours for the purpose of satisfying
the Note Insurer or such
25
prospective Noteholder that the Servicer has the ability to service the Mortgage
Loans in accordance with this Agreement.
Section 5.17. Adjustment of Servicing Compensation in Respect
of Prepaid Mortgage Loans. The Monthly Servicing Fee that the Servicer shall be
entitled to receive with respect to each Mortgage Loan and each Payment Date
shall be offset on such Payment Date by an amount equal to the Prepayment
Interest Shortfall with respect to such Mortgage Loan to the extent that it is
the subject of Principal Prepayments during the month preceding the month of
such Payment Date. The amount of any offset against the Monthly Servicing Fee
with respect to any Payment Date under this Section 5.17 shall be limited to the
Monthly Servicing Fee otherwise payable to the Servicer (without adjustment on
account of Prepayment Interest Shortfalls) with respect to such Mortgage Loan,
and the rights of the Noteholders to the offset of the aggregate Prepayment
Interest Shortfalls against the Monthly Servicing Fee shall not be cumulative.
Section 5.18. Periodic Advances. If, on any Servicer Payment
Date, the Servicer determines that any Monthly Payments due on the Due Date
immediately preceding such Servicer Payment Date have not been received as of
the end of the related Due Period, the Servicer shall determine the amount of
any Periodic Advance required to be made with respect to the related Payment
Date. The Servicer shall, one (1) Business Day after such Servicer Payment Date,
deliver a magnetic tape or diskette to the Indenture Trustee indicating the
payment status of each Mortgage Loan as of such Servicer Payment Date. The
Servicer shall include in the amount to be deposited in the Collection Account
on such Servicer Payment Date an amount equal to the Periodic Advance, if any,
which deposit may be made in whole or in part from funds in the Collection
Account being held for future payment or withdrawal on or in connection with
Payment Dates in subsequent months. Any funds being held for future payment to
Noteholders and so used shall be replaced by the Servicer from its own funds by
deposit in the Collection Account on or before the Business Day preceding any
such future Servicer Payment Date to the extent that funds in the Collection
Account on such Servicer Payment Date shall be less than payments to Noteholders
required to be made on such date.
The Servicer shall designate on its records the specific
Mortgage Loans and related installments (or portions thereof) as to which such
Periodic Advance shall be deemed to have been made, such determination being
conclusive for purposes of withdrawals from the Collection Account pursuant to
Section 5.03 hereof.
Section 5.19. Indemnification; Third Party Claims. (a) The
Servicer agrees to indemnify and to hold each of the Trust, the Owner Trustee,
the Depositor, the Indenture Trustee, the Collateral Agent, the Unaffiliated
Seller, the Note Insurer and each Noteholder harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses that the Trust, the Owner
Trustee, the Depositor, the Indenture Trustee, the Collateral Agent, the
Unaffiliated Seller, the Note Insurer and any Noteholder may sustain in any way
related to the failure of the Servicer to perform its duties and service the
Mortgage Loans in compliance with the terms of this Agreement and the other
Basic Documents including Section 8.02 of the Trust Agreement. Each indemnified
party and the Servicer shall immediately notify the other indemnified parties if
a claim is made by a third party with respect to this Agreement and the other
Basic Documents, and the Servicer shall
26
assume the defense of any such claim and pay all expenses in connection
therewith, including reasonable counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against the Trust, the Owner
Trustee, the Depositor, the Servicer, the Indenture Trustee, the Collateral
Agent, the Unaffiliated Seller, the Note Insurer and/or a Noteholder in respect
of such claim. The Indenture Trustee shall reimburse the Servicer in accordance
with Section 5.08 hereof, out of collections on the Mortgage Loans for the Due
Period, for all amounts advanced by it pursuant to the preceding sentence except
to the extent that the claim relates directly to the failure of the Servicer to
service and administer the Mortgages in compliance with the terms of this
Agreement; provided, that the Servicer's indemnity hereunder shall not be in any
manner conditioned on the availability of funds for such reimbursement. The
obligations of the Servicer under this Section 5.19 arising prior to any
resignation or termination of the Servicer hereunder shall survive the
resignation or termination of the Servicer.
(b) The Indenture Trustee shall, if necessary, reimburse the
Servicer from amounts otherwise distributable on the Trust Certificates for all
amounts advanced by it pursuant to Section 4.04(a)(ii) of the Unaffiliated
Seller's Agreement, except to the extent that the claim relates directly to the
failure of the Servicer, if it is the Unaffiliated Seller, or is an Affiliate of
the Unaffiliated Seller, to perform its obligations to service and administer
the Mortgages in compliance with the terms of the Unaffiliated Seller's
Agreement and this Agreement, or the failure of the Unaffiliated Seller to
perform its duties in compliance with the terms of this Agreement.
(c) The Indenture Trustee shall reimburse the Unaffiliated
Seller from amounts otherwise distributable on the Trust Certificates for all
amounts advanced by the Unaffiliated Seller pursuant to the second sentence of
Section 4.04(a)(ii) of the Unaffiliated Seller's Agreement except when the
relevant claim relates directly to the failure of the Unaffiliated Seller to
perform its duties in compliance with the terms of the Unaffiliated Seller's
Agreement.
Section 5.20. Maintenance of Corporate Existence and Licenses;
Merger or Consolidation of the Servicer. (a) The Servicer will keep in full
effect its existence, rights and franchises as a corporation, will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement and will otherwise operate its business so as to cause the
representations and warranties under Section 3.01 to be true and correct at all
times under this Agreement. Any person succeeding to the business of the
Servicer shall assume all rights and obligations of the Servicer under the Basic
Documents.
(b) Any Person into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, or any Person succeeding
to the business of the Servicer, shall be an established mortgage loan servicing
institution that has a net worth of at least $15,000,000 and is a Permitted
Transferee, and in all events shall be the successor of the Servicer without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. The Servicer
shall send notice of any such merger or consolidation to
27
the Owner Trustee, the Indenture Trustee, the Collateral Agent, the Depositor
and the Note Insurer.
Section 5.21. Assignment of Agreement by Servicer; Servicer
Not to Resign. The Servicer shall not assign this Agreement nor resign from the
obligations and duties hereby imposed on it except by mutual consent of the
Owner Trustee, on behalf of the Trust, at the direction of the Trust
Certificateholders, the Depositor, the Servicer, the Unaffiliated Seller, the
Note Insurer, the Collateral Agent and the Indenture Trustee or upon the
determination that the Servicer's duties hereunder are no longer permissible
under applicable law and that such incapacity cannot be cured by the Servicer
without incurring, in the reasonable judgment of the Note Insurer, unreasonable
expense. Any such determination that the Servicer's duties hereunder are no
longer permissible under applicable law permitting the resignation of the
Servicer shall be evidenced by a written Opinion of Counsel (who may be counsel
for the Servicer) to such effect delivered to the Indenture Trustee, the
Collateral Agent, the Unaffiliated Seller, the Trust, the Depositor and the Note
Insurer. No such resignation shall become effective until the Indenture Trustee
or a successor appointed in accordance with the terms of this Agreement has
assumed the Servicer's responsibilities and obligations hereunder in accordance
with Section 7.02. The Servicer shall provide the Indenture Trustee, the
Collateral Agent, the Depositor, the Rating Agencies and the Note Insurer with
30 days' prior written notice of its intention to resign pursuant to this
Section 5.21.
Section 5.22. Periodic Filings with the Securities and
Exchange Commission; Additional Information. The Indenture Trustee shall prepare
or cause to be prepared for filing with the Commission (other than the initial
Current Report on Form 8-K to be filed by the Depositor in connection with the
issuance of the Notes) any and all reports, statements and information
respecting the Trust and/or the Notes required to be filed, and shall solicit
any and all proxies of the Noteholders whenever such proxies are required to be
solicited, pursuant to the Securities Exchange Act of 1934, as amended. The
Depositor shall promptly file, and exercise its reasonable best efforts to
obtain a favorable response to, no-action requests with, or other appropriate
exemptive relief from, the Commission seeking the usual and customary exemption
from such reporting requirements granted to issuers of securities similar to the
Notes. Fees and expenses incurred by the Indenture Trustee in connection with
the foregoing shall be reimbursed pursuant to Section 6.16 of the Indenture and
shall not be paid by the Trust.
The Servicer and the Depositor each agree to promptly furnish
to the Indenture Trustee, from time to time upon request, such further
information, reports and financial statements as the Indenture Trustee deems
appropriate to prepare and file all necessary reports with the Commission.
ARTICLE VI
APPLICATION OF FUNDS
Section 6.01. Deposits to the Payment Account. On each
Servicer Payment Date, the Servicer shall cause to be deposited in the Payment
Account, from funds on deposit in the Collection Account, (a) an amount equal to
the Servicer Remittance Amount and (b) Net Foreclosure Profits, if any with
respect to the related Payment Date, minus any portion thereof
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payable to the Servicer pursuant to Section 5.03. On each Servicer Payment Date,
the Servicer shall also deposit into the Payment Account any Periodic Advances
with respect to the related Payment Date calculated in accordance with Section
5.18.
Section 6.02. Collection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or delivery
of all money and other property payable to or receivable by the Indenture
Trustee pursuant to this Agreement, including (a) all payments due on the
Mortgage Loans in accordance with the respective terms and conditions of such
Mortgage Loans and required to be paid over to the Indenture Trustee by the
Servicer or by any Subservicer and (b) Insured Payments. The Indenture Trustee
shall hold all such money and property received by it, as part of the Trust
Estate and shall apply it as provided in the Indenture.
Section 6.03. Application of Principal and Interest. In the
event that Net Liquidation Proceeds on a Liquidated Mortgage Loan are less than
the Principal Balance of the related Mortgage Loan plus accrued interest
thereon, or any Mortgagor makes a partial payment of any Monthly Payment due on
a Mortgage Loan, such Net Liquidation Proceeds or partial payment shall be
applied to payment of the related Mortgage Note as provided therein, and if not
so provided, first to interest accrued at the Mortgage Interest Rate and then to
principal.
Section 6.04. Information Concerning the Mortgage Loans. No
later than 12:00 noon Pennsylvania time on the fourth Business Day preceding
each Payment Date, the Servicer shall deliver to the Indenture Trustee a report
in computer-readable form containing such information as to each Mortgage Loan
and as to the Mortgage Loan Pool as of such Payment Date and such other
information as the Indenture Trustee shall reasonably require.
Section 6.05. Compensating Interest. Not later than the close
of business on the third Business Day prior to the Payment Date, the Servicer
shall remit to the Indenture Trustee (without right to reimbursement therefor)
for deposit into the Payment Account, an amount equal to, for each Mortgage
Loan, the lesser of (a) the Prepayment Interest Shortfall for such Mortgage Loan
for the related Payment Date resulting from Principal Prepayments during the
related Due Period and (b) its Monthly Servicing Fees with respect to such
Mortgage Loan received in the related Due Period (the "Compensating Interest").
Section 6.06. Effect of Payments by the Note Insurer;
Subrogation. Anything herein to the contrary notwithstanding, any payment with
respect to principal of or interest on the Notes which is made with moneys
received pursuant to the terms of the Policy shall not be considered payment of
the Notes from the Trust Estate. The Depositor, the Servicer, the Trust, the
Collateral Agent and the Indenture Trustee acknowledge and agree, that without
the need for any further action on the part of the Note Insurer, the Depositor,
the Servicer, the Trust, the Collateral Agent, the Indenture Trustee or the Note
Registrar (a) to the extent the Note Insurer makes payments, directly or
indirectly, on account of principal of or interest on the Notes to the Holders
of such Notes, the Note Insurer will be fully subrogated to, and each
Noteholder, the Servicer, the Depositor, the Trust, the Collateral Agent and the
Indenture Trustee hereby delegate and assign to the Note Insurer, to the fullest
extent permitted by law, the rights of such Holders to receive such principal
and interest from the Trust Estate, including, without limitation, any amounts
due to the Noteholders in respect of securities law violations arising from the
offer and sale of the Notes, and (b) the Note Insurer shall be paid such amounts
from the sources and in the
29
manner provided herein for the payment of such amounts and as provided in the
Insurance Agreement. The Indenture Trustee, the Collateral Agent and the
Servicer shall cooperate in all respects with any reasonable request by the Note
Insurer for action to preserve or enforce the Note Insurer's rights or interests
under this Agreement without limiting the rights or affecting the interests of
the Holders as otherwise set forth herein.
ARTICLE VII
SERVICER DEFAULT
Section 7.01. Servicer Events of Default. (a) The following
events shall each constitute a "Servicer Event of Default" hereunder:
(i) any failure by the Servicer to remit to the Indenture
Trustee any payment required to be made by the Servicer under the terms
of this Agreement (other than Servicing Advances covered by clause (ii)
below), which continues unremedied for one (1) Business Day after the
date upon which written notice of such failure, requiring the same to
be remedied, shall have been given to the Servicer and the Note Insurer
by the Indenture Trustee or to the Servicer and the Indenture Trustee
by the Note Insurer or Noteholders of Notes evidencing Percentage
Interests of at least 25%;
(ii) the failure by the Servicer to make any required
Servicing Advance, which failure continues unremedied for a period of
thirty (30) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Servicer by the Indenture Trustee or to the Servicer and the
Indenture Trustee by any Noteholder or the Note Insurer;
(iii) any failure on the part of the Servicer duly to observe
or perform in any material respect any other of the covenants or
agreements on the part of the Servicer contained in this Agreement, or
the failure of any representation and warranty made pursuant to Section
3.01(a) hereof to be true and correct which continues unremedied for a
period of thirty (30) days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Indenture Trustee or to the Servicer and the
Indenture Trustee by any Noteholder or the Note Insurer;
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law or for
the appointment of a conservator or receiver or liquidation in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree
or order shall have remained in force, undischarged or unstayed for a
period of ninety (90) days;
(v) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities
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or similar proceedings of or relating to the Servicer or of or relating
to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability
generally to pay its debts as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee of
any "event of default" under the Insurance Agreement;
(viii) if on any Payment Date the Rolling Six Month
Delinquency Rate exceeds 12.50% of the aggregate outstanding Principal
Balance for the Mortgage Loans;
(ix) if on any Payment Date, commencing in December 2001, the
Twelve Month Loss Amount exceeds 2.50% of the sum of aggregate
outstanding Principal Balance for the Mortgage Loans, as of the close
of business on the first day of the twelfth preceding calendar month;
(x) if on any Payment Date, the occurrence of a Company
Stockholders' Equity Trigger; and
(xi) the occurrence of an Event of Default under the
Indenture.
(b) So long as a Servicer Event of Default shall have occurred
and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if
such payment is in respect of Periodic Advances or Compensating Interest owing
by the Servicer and such payment is not made by 12:00 noon New York time on the
second Business Day prior to the applicable Payment Date, the Indenture Trustee,
upon receipt of written notice or discovery by a Responsible Officer of such
failure, shall give immediate telephonic and facsimile notice of such failure to
a Servicing Officer of the Servicer and to the Note Insurer and the Indenture
Trustee shall, with the consent of the Note Insurer, terminate all of the rights
and obligations of the Servicer under this Agreement, except for the Servicer's
indemnification obligation under Section 5.19, and the Indenture Trustee, or a
successor Servicer appointed in accordance with Section 7.02, shall immediately
make such Periodic Advance or payment of Compensating Interest and assume,
pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with
respect to that portion of Section 7.01(a)(i) not referred to in the preceding
clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of
Section 7.01, the Indenture Trustee shall, but only at the direction of the Note
Insurer or the Majority Noteholders, by notice in writing to the Servicer and a
Responsible Officer of the Indenture Trustee and subject to the prior written
consent of the Note Insurer, in the case of any removal at the direction of the
Majority Noteholders, and in addition to whatever rights such Noteholders may
have at law or equity to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Servicer under this
Agreement, except for the Servicer's indemnification obligations under Section
5.19, and in and to the Mortgage Loans and the proceeds thereof, as servicer;
and (z) with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture
Trustee shall, but only at the direction of the Note Insurer, after notice in
writing to the Servicer and a Responsible Officer of the Indenture
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Trustee, terminate all the rights and obligations of the Servicer under this
Agreement, except for the Servicer's indemnification obligations under Section
5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer.
Upon receipt by the Servicer of such written notice, all authority and power of
the Servicer under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall, subject to Section 7.02, pass to and be vested in the
Indenture Trustee, or its designee approved by the Note Insurer, and the
Indenture Trustee is hereby authorized and empowered to execute and deliver, on
behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the
Servicer, any and all documents and other instruments and do or cause to be done
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, including, but not limited to, the transfer and
endorsement or assignment of the Mortgage Loans and related documents. The
Servicer agrees to cooperate (and pay any related costs and expenses) with the
Indenture Trustee in effecting the termination of the Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Indenture Trustee, or its designee, for administration by it of
all amounts which shall at the time be credited by the Servicer to the
Collection Account or thereafter received with respect to the Mortgage Loans.
The Indenture Trustee shall promptly notify the Note Insurer and the Rating
Agencies of the occurrence of a Servicer Event of Default.
Section 7.02. Indenture Trustee to Act; Appointment of
Successor. On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01 or the Indenture Trustee receives the resignation of
the Servicer evidenced by an Opinion of Counsel (if required) pursuant to
Section 5.21, or the Servicer is removed as Servicer pursuant to this Article
VII, in which event the Indenture Trustee shall promptly notify the Rating
Agencies, except as otherwise provided in Section 7.01, the Indenture Trustee
shall be the successor in all respects to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof
arising on or after the date of succession; provided, however, that the
Indenture Trustee shall not be liable for any actions or the representations and
warranties of any Servicer prior to it and including, without limitation, the
obligations of the Servicer set forth in Sections 2.06 and 4.02 hereof. The
Indenture Trustee, as successor Servicer, shall be obligated to pay Compensating
Interest pursuant to Section 6.05 in any event and to make advances pursuant to
Section 5.18 unless, and only to the extent the Indenture Trustee determines
reasonably and in good faith that such advances would not be recoverable
pursuant to Section 5.04, such determination to be evidenced by a certification
of a Responsible Officer of the Indenture Trustee delivered to the Note Insurer.
(b) Notwithstanding the above, the Indenture Trustee may, if
it shall be unwilling to so act, or shall, if it is unable to so act or if the
Majority Noteholders with the consent of the Note Insurer or the Note Insurer so
requests in writing to the Indenture Trustee, appoint, pursuant to such
direction of the Majority Noteholders and Note Insurer or the Note Insurer, or
if no such direction is provided to the Indenture Trustee, pursuant to the
provisions set forth in Section 7.02(c), or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
acceptable to the Note Insurer that has a net worth of not less than $15,000,000
as the successor to the Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Servicer hereunder.
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(c) In the event the Indenture Trustee is the successor
Servicer, it shall be entitled to the same Servicing Compensation (including the
Servicing Fee as adjusted pursuant to the definition thereof) and other funds
pursuant to Section 5.08 hereof as the Servicer if the Servicer had continued to
act as servicer hereunder. In the event the Indenture Trustee is unable or
unwilling to act as successor Servicer, the Indenture Trustee shall solicit, by
public announcement, bids from housing and home finance institutions, banks and
mortgage servicing institutions meeting the qualifications set forth above. Such
public announcement shall specify that the successor servicer shall be entitled
to the full amount of the aggregate Servicing Fees hereunder as servicing
compensation, together with the other Servicing Compensation. Within thirty (30)
days after any such public announcement, the Indenture Trustee shall negotiate
and effect the sale, transfer and assignment of the servicing rights and
responsibilities hereunder to the qualified party submitting the highest
qualifying bid. The Indenture Trustee shall deduct from any sum received by the
Indenture Trustee from the successor to the Servicer in respect of such sale,
transfer and assignment all costs and expenses of any public announcement and of
any sale, transfer and assignment of the servicing rights and responsibilities
hereunder and the amount of any unreimbursed Servicing Advances and Periodic
Advances owed to the Indenture Trustee. After such deductions, the remainder of
such sum shall be paid by the Indenture Trustee to the Servicer at the time of
such sale, transfer and assignment to the Servicer's successor.
(d) The Indenture Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. The Servicer agrees to cooperate with the Indenture Trustee and
any successor Servicer in effecting the termination of the Servicer's servicing
responsibilities and rights hereunder and shall promptly provide the Indenture
Trustee or such successor Servicer, as applicable, at the Servicer's cost and
expense, all documents and records reasonably requested by it to enable it to
assume the Servicer's functions hereunder and shall promptly also transfer to
the Indenture Trustee or such successor servicer, as applicable, all amounts
that then have been or should have been deposited in the Collection Account by
the Servicer or that are thereafter received with respect to the Mortgage Loans.
Any collections received by the Servicer after such removal or resignation shall
be endorsed by it to the Indenture Trustee and remitted directly to the
Indenture Trustee or, at the direction of the Indenture Trustee, to the
successor Servicer. Neither the Indenture Trustee nor any other successor
Servicer shall be held liable by reason of any failure to make, or any delay in
making, any payment hereunder or any portion thereof caused by (i) the failure
of the Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Servicer hereunder. Notwithstanding anything to the
contrary herein, no appointment of a successor Servicer under this Agreement
shall be effective until the Indenture Trustee and the Note Insurer shall have
consented thereto, and written notice of such proposed appointment shall have
been provided by the Indenture Trustee to the Note Insurer, the Depositor, and
to each Noteholder. The Indenture Trustee shall not resign as Servicer until a
successor Servicer reasonably acceptable to the Note Insurer has been appointed.
The Note Insurer shall have the right to remove the Indenture Trustee as
successor Servicer under this Section 7.02 without cause, and the Indenture
Trustee shall appoint such other successor Servicer as directed by the Note
Insurer.
(e) Pending appointment of a successor Servicer hereunder, the
Indenture Trustee shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Indenture Trustee may make
such arrangements for the compensation of
33
such successor Servicer out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Servicer pursuant to Section 5.08, together with
other Servicing Compensation. The Servicer, the Indenture Trustee and such
successor Servicer shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
Section 7.03. Waiver of Defaults. The Majority Noteholders
may, on behalf of all Noteholders, and subject to the consent of the Note
Insurer, waive any events permitting removal of the Servicer as servicer
pursuant to this Article VII; provided, however, that the Majority Noteholders
may not waive a default in making a required payment on a Note without the
consent of the Holder of such Note. Upon any waiver of a past default, such
default shall cease to exist, and any Servicer 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 thereto except to the extent expressly so waived.
Notice of any such waiver shall be given by the Indenture Trustee to the Rating
Agencies, the Depositor and the Note Insurer.
Section 7.04. Rights of the Note Insurer to Exercise Rights of
the Noteholders. By accepting its Note, each Noteholder agrees that unless a
Note Insurer Default exists, the Note Insurer shall be deemed to be the
Noteholders for all purposes (other than with respect to the receipt of payment
on the Notes) and shall have the right to exercise all rights of the Noteholders
under this Agreement and under the Notes without any further consent of the
Noteholders, including, without limitation:
(a) the right to require the Unaffiliated Seller to repurchase
Mortgage Loans pursuant to Sections 2.06 and 4.02 hereof to the extent set forth
therein;
(b) the right to give notices of breach or to terminate the
rights and obligations of the Servicer as servicer pursuant to Section 7.01
hereof and to consent to or direct waivers of Servicer defaults pursuant to
Section 7.03 hereof;
(c) the right to direct the actions of the Indenture Trustee
during the continuance of a Servicer Event of Default pursuant to Sections 7.01
and 7.02 hereof;
(d) the right to institute proceedings against the Servicer
pursuant to Section 7.01 hereof;
(e) the right to remove the Indenture Trustee pursuant to
Section 6.09 of the Indenture;
(f) the right to direct foreclosures upon the failure of the
Servicer to do so in accordance with the provisions of Section 5.06 of this
Agreement; and
(g) any rights or remedies expressly given the Majority
Noteholders.
In addition, each Noteholder agrees that, subject to Section
10.02, unless a Note Insurer Default exists, the rights specifically enumerated
above may only be exercised by the Noteholders with the prior written consent of
the Note Insurer.
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Section 7.05. Indenture Trustee To Act Solely with Consent of
the Note Insurer. Unless a Note Insurer Default exists, the Indenture Trustee
shall not, without the Note Insurer's consent or unless directed by the Note
Insurer:
(a) terminate the rights and obligations of the Servicer as
Servicer pursuant to Section 7.01 hereof;
(b) agree to any amendment pursuant to Section 10.03 hereof;
or
(c) undertake any litigation.
The Note Insurer may, in writing and in its sole discretion
renounce all or any of its rights under Sections 7.04, 7.05 or 7.06 or any
requirement for the Note Insurer's consent for any period of time.
Section 7.06. Mortgage Loans, Trust Estate and Accounts Held
for Benefit of the Note Insurer. (a) The Indenture Trustee shall hold the Trust
Estate and the Indenture Trustee's Mortgage Files, for the benefit of the
Noteholders and the Note Insurer, and all references in this Agreement and in
the Notes to the benefit of Noteholders shall be deemed to include the Note
Insurer. The Indenture Trustee shall cooperate in all reasonable respects with
any reasonable request by the Note Insurer for action to preserve or enforce the
Note Insurer's rights or interests under this Agreement and the Notes unless, as
stated in an Opinion of Counsel addressed to the Indenture Trustee and the Note
Insurer, such action is adverse to the interests of the Noteholders or
diminishes the rights of the Noteholders or imposes additional burdens or
restrictions on the Noteholders.
(b) The Servicer hereby acknowledges and agrees that it shall
service the Mortgage Loans for the benefit of the Noteholders and for the
benefit of the Note Insurer, and all references in this Agreement to the benefit
of or actions on behalf of the Noteholders shall be deemed to include the Note
Insurer.
Section 7.07. Note Insurer Default. Notwithstanding anything
elsewhere in this Agreement or in the Notes to the contrary, if a Note Insurer
Default exists, or if and to the extent the Note Insurer has delivered its
written renunciation of all of its rights under this Agreement, the provisions
of this Article VII and all other provisions of this Agreement which (a) permit
the Note Insurer to exercise rights of the Noteholders, (b) restrict the ability
of the Noteholders, the Servicer, the Collateral Agent or the Indenture Trustee
to act without the consent or approval of the Note Insurer, (c) provide that a
particular act or thing must be acceptable to the Note Insurer, (d) permit the
Note Insurer to direct (or otherwise to require) the actions of the Indenture
Trustee, the Collateral Agent, the Servicer or the Noteholders, (e) provide that
any action or omission taken with the consent, approval or authorization of the
Note Insurer shall be authorized hereunder or shall not subject the party taking
or omitting to take such action to any liability hereunder or (f) which have a
similar effect, shall be of no further force and effect and the Indenture
Trustee shall administer the Trust Estate and perform its obligations hereunder
solely for the benefit of the Holders of the Notes. Nothing in the foregoing
sentence, nor any action taken pursuant thereto or in compliance therewith,
shall be deemed to have released the Note Insurer from any obligation or
liability it may have to any party or to the Noteholders
35
hereunder, under any other agreement, instrument or document (including, without
limitation, the Policy) or under applicable law.
ARTICLE VIII
TERMINATION
Section 8.01. Termination. (a) Subject to Section 8.02, this
Agreement shall terminate upon notice to the Indenture Trustee of either: (i)
the disposition of all funds with respect to the last Mortgage Loan and the
remittance of all funds due hereunder and the payment of all amounts due and
payable to the Note Insurer and the Indenture Trustee or (ii) mutual consent of
the Owner Trustee, on behalf of the Trust, at the direction of the Trust
Certificateholders, the Indenture Trustee, the Collateral Agent, the Servicer,
the Note Insurer and all Noteholders in writing.
(b) In addition, subject to Section 8.02, certain of the Trust
Certificateholders or the Servicer may, at their respective option and at their
respective sole cost and expense, call the Notes or terminate the Trust in
accordance with the terms of Section 10.01 of the Indenture.
(c) If on any Payment Date, the Servicer determines that there
are no outstanding Mortgage Loans and no other funds or assets in the Trust
Estate other than funds in the Payment Account, the Servicer shall send a final
payment notice promptly to each Noteholder in accordance with Section 8.01(d).
(d) Notice of any termination, specifying the Payment Date
upon which the Trust will terminate and the Noteholders shall surrender their
Notes to the Indenture Trustee for final payment and cancellation, shall be
given promptly by the Servicer by letter to Noteholders mailed during the month
of such final payment before the Servicer Payment Date in such month, specifying
(i) the Payment Date upon which final payment of the Notes will be made upon
presentation and surrender of Notes at the office of the Indenture Trustee
therein designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Notes at the
office of the Indenture Trustee therein specified. The Servicer shall give such
notice to the Indenture Trustee therein specified at the time such notice is
given to Noteholders. The obligations of the Note Insurer hereunder shall
terminate upon the deposit by the Servicer with the Indenture Trustee of a sum
sufficient to purchase all of the Mortgage Loans and REO Properties as set forth
in Section 10.01 of the Indenture or when the Note Principal Balance of the
Notes has been reduced to zero.
(e) In the event that all of the Noteholders do not surrender
their Notes for cancellation within six (6) months after the time specified in
the above-mentioned written notice, the Servicer shall give a second written
notice to the remaining Noteholders to surrender their Notes for cancellation
and receive the final payment with respect thereto. If within six (6) months
after the second notice, all of the Notes shall not have been surrendered for
cancellation, the Indenture Trustee may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the remaining Noteholders
concerning surrender of their Notes and the cost thereof shall be paid out of
the funds and other assets which remain subject hereto. If within
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nine (9) months after the second notice all the Notes shall not have been
surrendered for cancellation, the Trust Certificateholders shall be entitled to
all unclaimed funds and other assets which remain subject hereto and the
Indenture Trustee upon transfer of such funds shall be discharged of any
responsibility for such funds and the Noteholders shall look only to the Trust
Certificateholders for payment and not to the Note Insurer. Such funds shall
remain uninvested.
Section 8.02. Additional Termination Requirements. By their
acceptance of the Notes, the Holders thereof hereby agree to appoint the
Servicer as their attorney in fact to: (i) adopt such a plan of complete
liquidation (and the Noteholders hereby appoint the Indenture Trustee as their
attorney in fact to sign such plan) as appropriate or upon the written request
of the Note Insurer and (ii) to take such other action in connection therewith
as may be reasonably required to carry out such plan of complete liquidation all
in accordance with the terms hereof.
Section 8.03. Accounting Upon Termination of Servicer. Upon
termination of the Servicer, the Servicer shall, at its expense:
(a) deliver to the successor Servicer or, if none shall yet
have been appointed, to the Indenture Trustee, the funds in any Account;
(b) deliver to the successor Servicer or, if none shall yet
have been appointed, to the Indenture Trustee all Indenture Trustee's Mortgage
Files and related documents and statements held by it hereunder and a Mortgage
Loan portfolio computer tape;
(c) deliver to the successor Servicer or, if none shall yet
have been appointed, to the Indenture Trustee and, upon request, to the
Noteholders a full accounting of all funds, including a statement showing the
Monthly Payments collected by it and a statement of monies held in trust by it
for the payments or charges with respect to the Mortgage Loans; and
(d) execute and deliver such instruments and perform all acts
reasonably requested in order to effect the orderly and efficient transfer of
servicing of the Mortgage Loans to the successor Servicer and to more fully and
definitively vest in such successor all rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer under this
Agreement.
ARTICLE IX
THE COLLATERAL AGENT
Section 9.01. Duties of the Collateral Agent. (a) The
Collateral Agent, prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Default has occurred and has not been cured or waived,
the Collateral Agent shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in its exercise as
a prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Collateral Agent, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Collateral
37
Agent which are specifically required to be furnished pursuant to any provision
of this Agreement, shall examine them to determine whether they conform on their
face to the requirements of this Agreement; provided, however, that the
Collateral Agent shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by any Person hereunder. If any such instrument is found
not to conform on its face to the requirements of this Agreement, the Collateral
Agent shall note it as such on the Initial Certification or Final Certification
delivered pursuant to Section 2.06(b).
(c) No provision of this Agreement shall be construed to
relieve the Collateral Agent from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided, however,
that:
(i) prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default which may have occurred, the
duties and obligations of the Collateral Agent shall be determined
solely by the express provisions of this Agreement, the Collateral
Agent shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Collateral Agent and, in the absence of bad faith on the part of the
Collateral Agent, the Collateral Agent may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Collateral
Agent and conforming to the requirements of this Agreement;
(ii) the Collateral Agent shall not be personally liable for
an error of judgment made in good faith by a Responsible Officer or
other officers of the Collateral Agent, unless it shall be proved that
the Collateral Agent was negligent in ascertaining the pertinent facts;
(iii) the Collateral Agent shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Note Insurer or the
Indenture Trustee or with the consent of the Note Insurer or the
Indenture Trustee;
(iv) the Collateral Agent 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 Collateral
Agent to perform, or be responsible for the manner of performance of,
any of the obligations of the Servicer or the Indenture Trustee under
this Agreement; and
(v) subject to the other provisions of this Agreement and
without limiting the generality of this Section 9.01, the Collateral
Agent 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
38
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, the Trust Estate, the Noteholders or the Mortgage Loans, (D)
to confirm or verify the contents of any reports or certificates of any
Person delivered to the Collateral Agent pursuant to this Agreement
believed by the Collateral Agent to be genuine and to have been signed
or presented by the proper party or parties.
Section 9.02. Certain Matters Affecting the Collateral Agent.
Except as otherwise provided in Section 9.01 hereof:
(a) the Collateral Agent may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
Opinion of Counsel, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) the Collateral Agent may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(c) the Collateral Agent shall be under no obligation to
exercise any of the powers vested in it by this Agreement or to institute,
conduct or defend by litigation hereunder or in relation hereto at the request,
order or direction of the Note Insurer or any of the Noteholders, pursuant to
the provisions of this Agreement, unless such Noteholders or the Note Insurer,
as applicable, shall have offered to the Indenture Trustee reasonable security
or indemnity against the costs, expenses and liabilities which may be incurred
therein by the Collateral Agent or thereby; nothing contained herein shall,
however, relieve the Collateral Agent of the obligation, upon the occurrence of
an Event of Default (which has not been cured), to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of care
and skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(d) the Collateral Agent shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) the Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to do so
by the Note Insurer or Holders of Notes evidencing Percentage Interests
aggregating not less than 25%; provided, however, that if the payment within a
reasonable time to the Collateral Agent of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Collateral Agent, not reasonably assured to the Collateral Agent
by the security afforded to it by the terms of this Agreement, the Collateral
Agent may
39
require reasonable indemnity against such expense or liability as a condition to
taking any such action. The reasonable expense of every such examination shall
be paid by the Servicer or, if paid by the Collateral Agent, shall be repaid by
the Servicer upon demand from the Servicer's own funds;
(f) the right of the Collateral Agent to perform any
discretionary act enumerated in this Agreement shall not be construed as a duty,
and the Collateral Agent shall not be answerable for anything other than its
negligence or willful misconduct in the performance of such act;
(g) the Collateral Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys.
Section 9.03. Collateral Agent Not Liable for Notes or
Mortgage Loans. (a) The recitals contained herein shall be taken as the
statements of the Trust and the Servicer, as the case may be, and the Collateral
Agent assumes no responsibility for their correctness. The Collateral Agent
makes no representations as to the validity or sufficiency of this Agreement or
of any Mortgage Loan or related document. The Collateral Agent shall not be
accountable for the use or application of any funds paid to the Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Servicer. The Collateral Agent shall not be responsible for the
legality or validity of the Agreement or the validity, priority, perfection or
sufficiency of the security for the Notes issued or intended to be issued under
the Indenture.
Section 9.04. Collateral Agent May Own Notes. (a) The
Collateral Agent in its individual or any other capacity may become the owner or
pledgor of Notes with the same rights it would have if it were not Collateral
Agent, and may otherwise deal with the parties hereto.
Section 9.05. Collateral Agent's Fees and Expenses; Indemnity.
(a) The Collateral Agent acknowledges that in consideration of the performance
of its duties hereunder it is entitled to receive its fees and expenses from the
Servicer, as separately agreed between the Servicer and the Collateral Agent.
The Depositor, the Indenture Trustee and the Note Insurer shall not pay any of
the Collateral Agent fees and expenses in connection with this transaction. The
Collateral Agent shall not be entitled to compensation for any expense,
disbursement or advance as may arise from its negligence or bad faith.
(b) The Collateral Agent and any director, officer, employee
or agent of the Collateral Agent shall be indemnified by first, the Trust and,
second, the Servicer and held harmless against any loss, liability, claim,
damage or reasonable expense incurred in connection with this Agreement other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence of the Collateral Agent in the performance of its duties
hereunder or by reason of the Collateral Agent 's reckless disregard of
obligations and duties hereunder. The obligations of the Servicer under this
Section 9.05 arising prior to any resignation or termination of the Servicer
hereunder shall survive termination of the Servicer and payment of the Notes.
Section 9.06. Eligibility Requirements for Collateral Agent.
The Collateral Agent hereunder shall at all times be a banking entity (a)
organized and doing business under the
40
laws of any state or the United States of America subject to supervision or
examination by federal or state authority, (b) authorized under such laws to
exercise corporate trust powers, including taking title to the Trust Estate on
behalf of the Indenture Trustee, for the benefit of the Noteholders and the Note
Insurer, (c) having a combined capital and surplus of at least $50,000,000, (d)
whose long-term deposits, if any, shall be rated at least BBB- by S&P and Baa3
by Xxxxx'x (except as provided herein) or such lower long-term deposit rating as
may be approved in writing by the Note Insurer, and (e) reasonably acceptable to
the Note Insurer as evidenced in writing. If such banking entity 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
determining an entity's combined capital and surplus for clause (c) of this
Section 9.06, the amount set forth in its most recent report of condition so
published shall be deemed to be its combined capital and surplus. In case at any
time the Collateral Agent shall cease to be eligible in accordance with the
provisions of this Section 9.06, the Collateral Agent shall resign immediately
in the manner and with the effect specified in Section 9.07.
Section 9.07. Resignation and Removal of the Collateral Agent.
(a) The Collateral Agent may at any time resign and be discharged from the
trusts hereby created by giving thirty (30) days' written notice thereof to the
Indenture Trustee, the Servicer, and the Note Insurer.
(b) If at any time the Collateral Agent shall cease to be
eligible in accordance with the provisions of Section 9.06 and shall fail to
resign after written request therefor by the Indenture Trustee, the Servicer or
the Note Insurer, or if at any time the Collateral Agent shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Collateral Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Collateral Agent or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Indenture Trustee or the Servicer, with the consent of the Note Insurer, or the
Note Insurer may remove the Collateral Agent.
(c) If the Collateral Agent fails to perform in accordance
with the terms of this Agreement, the Indenture Trustee, the Servicer or the
Majority Noteholders, with the consent of the Note Insurer, or the Note Insurer
may remove the Collateral Agent.
(d) Upon removal or receipt of notice of resignation of the
Collateral Agent, the Indenture Trustee shall either (i) take possession of the
Indenture Trustee's Mortgage Files and assume the duties of the Collateral Agent
hereunder or (ii) appoint a successor Collateral Agent pursuant to Section 9.08.
If the Indenture Trustee shall assume the duties of the Collateral Agent
hereunder, it shall notify the Trust, the Depositor, the Servicer and Note
Insurer in writing.
Section 9.08. Successor Collateral Agent. Upon the resignation
or removal of the Collateral Agent, the Indenture Trustee may appoint a
successor Collateral Agent, with the written approval of the Note Insurer;
provided, however, that the successor Collateral Agent so appointed shall in no
event be the Unaffiliated Seller, the Depositor or the Servicer or any Person
known to a Responsible Officer of the Indenture Trustee to be an Affiliate of
the Unaffiliated Seller, the Depositor or the Servicer and shall be approved by
the Note Insurer. The Indenture Trustee or such custodian, as the case may be,
shall assume the duties of the Collateral Agent hereunder. Any successor
Collateral Agent appointed as provided in this Section 9.08 shall
41
execute, acknowledge and deliver to the Trust, the Depositor, the Note Insurer,
the Servicer, the Indenture Trustee and to its predecessor Collateral Agent an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Collateral Agent shall become effective and such
successor Collateral Agent, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Collateral
Agent herein. The predecessor Collateral Agent shall deliver to the successor
Collateral Agent all Indenture Trustee's Mortgage Files and related documents
and statements held by it hereunder, and the Servicer and the predecessor
Collateral Agent shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor Collateral Agent all such rights, powers, duties and
obligations. The cost of any such transfer to the successor Collateral Agent
shall be for the account of the Collateral Agent in the event of the resignation
of the Collateral Agent, and shall be for the account of the Servicer in the
event of the removal of the Collateral Agent. No successor Collateral Agent
shall accept appointment as provided in this Section 9.08 unless at the time of
such acceptance such successor Collateral Agent shall be eligible under the
provisions of Section 9.06. Upon acceptance of appointment by a successor
Collateral Agent as provided in this Section 9.08, the Servicer shall mail
notice of the succession of such Collateral Agent hereunder to all Noteholders
at their addresses as shown in the Note Register and to the Rating Agencies. If
the Servicer fails to mail such notice within ten (10) days after acceptance of
appointment by the successor Collateral Agent, the successor Collateral Agent
shall cause such notice to be mailed at the expense of the Servicer.
Section 9.09. Merger or Consolidation of Collateral Agent. Any
Person into which the Collateral Agent may be merged or converted or with which
it may be consolidated or any corporation or national banking association
resulting from any merger, conversion or consolidation to which the Collateral
Agent shall be a party, or any corporation or national banking association
succeeding to the business of the Collateral Agent, shall be the successor of
the Collateral Agent hereunder; provided, that such corporation or national
banking association shall be eligible under the provisions of Section 9.06,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Limitation on Liability. None of the Trust, the
Owner Trustee, the Depositor, the Servicer, the Collateral Agent, the Indenture
Trustee or any of the directors, officers, employees or agents of such Persons
shall be under any liability to the Trust, the Noteholders or the Note Insurer
for any action taken, or for refraining from the taking of any action, in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Trust, the Owner Trustee, the
Depositor, the Servicer, the Collateral Agent, the Indenture Trustee or any such
Person against any breach of warranties or representations made herein by such
party, or against any specific liability imposed on each such party pursuant to
this Agreement or against any liability which would otherwise be imposed
42
upon such party by reason of willful misfeasance, bad faith or gross negligence
in the performance of duties or by reason of reckless disregard of obligations
or duties hereunder. The Trust, the Owner Trustee, the Depositor, the Servicer,
the Collateral Agent, the Indenture Trustee and any director, officer, employee
or agent of such Person may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any appropriate Person
respecting any matters arising hereunder.
Section 10.02. Acts of Noteholders. (a) Except as otherwise
specifically provided herein, whenever Noteholder action, consent or approval is
required under this Agreement, such action, consent or approval shall be deemed
to have been taken or given on behalf of, and shall be binding upon, all
Noteholders if the Majority Noteholders or the Note Insurer agrees to take such
action or give such consent or approval.
(b) The death or incapacity of any Noteholder shall not
operate to terminate this Agreement or the Trust, nor entitle such Noteholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(c) No Noteholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Notes, be construed
so as to constitute the Noteholders from time to time as partners or members of
an association; nor shall any Noteholder 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.
Section 10.03. Amendment. (a) This Agreement may be amended
from time to time by the Owner Trustee, on behalf of the Trust, the Servicer,
the Depositor, the Collateral Agent and the Indenture Trustee by written
agreement, upon the prior written consent of the Note Insurer, without notice to
or consent of the Noteholders or the Holders of the Trust Certificates to cure
any ambiguity, to correct or supplement any provisions herein, to comply with
any changes in the Code, or to make any other provisions with respect to matters
or questions arising under this Agreement which shall not be inconsistent with
the provisions of this Agreement; provided, however, that such action shall not,
as evidenced by (i) an Opinion of Counsel, at the expense of the party
requesting the change, delivered to the Indenture Trustee or (ii) a letter from
each Rating Agency confirming that such action will not result in the reduction,
qualification or withdrawal of the then-current ratings on the Notes, adversely
affect in any material respect the interests of any Noteholder; and provided,
further, that no such amendment shall reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required to
be paid on any Note without the consent of such Noteholder, or change the rights
or obligations of any other party hereto without the consent of such party. The
Indenture Trustee shall give prompt written notice to the Rating Agencies of any
amendment made pursuant to this Section 10.03.
(b) This Agreement may be amended from time to time by the
Owner Trustee, on behalf of the Trust, the Servicer, the Depositor, the
Collateral Agent and the Indenture Trustee, with the consent of the Note
Insurer, the Majority Noteholders and the Holder of the
43
majority of the Percentage Interest of the Trust Certificates, for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders; provided, however, that no such amendment shall reduce in any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be paid on any Class of Notes without the consent of
the Holders of such Class of Notes or reduce the percentage for the Holders of
which are required to consent to any such amendment without the consent of the
Holders of 100% of such Class of Notes affected thereby.
(c) It shall not be necessary for the consent of Holders under
this Section 10.03 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
(d) In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by Article IX of the Indenture or the
modifications thereby of the trusts created by the Indenture, the Indenture
Trustee shall be entitled to receive, and (subject to Section 6.01 of the
Indenture) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by the Indenture. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties or immunities under the Indenture or
otherwise. The Servicer, on behalf of the Trust, shall cause executed copies of
any supplemental indentures to be delivered to the Note Insurer and the Rating
Agencies.
Section 10.04. Recordation of Agreement. To the extent
permitted by applicable law, this Agreement, or a memorandum thereof if
permitted under applicable law, is subject to recordation in all appropriate
public offices for real property records in all of the counties or other
comparable jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Servicer at the Noteholders'
expense on direction and at the expense of Majority Noteholders requesting such
recordation, but only when accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of the
Noteholders or is necessary for the administration or servicing of the Mortgage
Loans.
Section 10.05. Duration of Agreement. This Agreement shall
continue in existence and effect until terminated as herein provided.
Section 10.06. Notices. All demands, notices and
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered to (i) in the case of the Servicer, the Subservicers
or the Originators, addressed to such Person, c/o American Business Financial
Services, Inc., Xxxxxxxxxx Xxxxxx Xxxxxx, 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxx Cynwyd, Pennsylvania 19004, Attention: General Counsel; (ii) in the case of
the Unaffiliated Seller, 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx Xxxxx, Executive Vice President; (iii) in the case of the
Trust, ABFS Mortgage Loan Trust 2000-4, c/o the Owner Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration; (iv) in the case of the
Indenture Trustee or the Collateral Agent, x/x Xxx Xxxxx Xxxxxxxxx Bank, 000
Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
44
Capital Markets Fiduciary Services, telephone (000) 000-0000, telecopy (212)
946-7317; (v) in the case of the Depositor or the Representative, Bear Xxxxxxx
Asset Backed Securities, Inc. or Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Chief Counsel; (vi) in the case of the
Co-Underwriter, Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Managing Director- Asset Backed Finance Group; (vii) in
the case of the Note Insurer, Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Risk Management - Consumer
Asset-Backed Securities (in each case in which notice or other communication to
the Note Insurer refers to an Event of Default, a Servicer Event of Default or a
claim on the Policy or with respect to which failure on the part of the Note
Insurer to respond shall be deemed to constitute consent or acceptance, then a
copy of such notice or other communication should also be sent to the attention
of the General Counsel, and shall be marked to indicate "URGENT MATERIAL
ENCLOSED"); (viii) in the case of Standard & Poor's Rating Services, a division
of the McGraw Hill Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Surveillance Group; (ix) in the case of Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention:
Home Equity Monitoring Group; and (x) in the case of the Noteholders, as set
forth in the Note Register. Any such notices shall be deemed to be effective
with respect to any party hereto upon the receipt of such notice by such party,
except that notices to the Noteholders shall be effective upon mailing or
personal delivery.
Section 10.07. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be
held invalid for any reason whatsoever, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other covenants, agreements, provisions or
terms of this Agreement.
Section 10.08. No Partnership. Nothing herein contained shall
be deemed or construed to create a co-partnership or joint venture between the
parties hereto and the services of the Servicer shall be rendered as an
independent contractor and not as agent for the Noteholders.
Section 10.09. Counterparts. This Agreement may be executed in
one or more counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to be an
original; such counterparts, together, shall constitute one and the same
agreement.
Section 10.10. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the Trust, the Servicer, the
Depositor, the Indenture Trustee, the Collateral Agent and the Noteholders and
their respective successors and permitted assigns.
Section 10.11. Headings. The headings of the various sections
of this Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
Section 10.12. The Note Insurer Default. Any right conferred
to the Note Insurer shall be suspended during any period in which a Note Insurer
Default exists. At such time as the
45
Notes are no longer outstanding hereunder, and no amounts owed to the Note
Insurer hereunder remain unpaid, the Note Insurer's rights hereunder shall
terminate.
Section 10.13. Third Party Beneficiary. The parties agree that
each of the Owner Trustee, the Unaffiliated Seller and the Note Insurer is
intended and shall have all rights of a third-party beneficiary of this
Agreement.
Section 10.14. Intent of the Parties. It is the intent of the
parties hereto and Noteholders that, for federal income taxes, state and local
income or franchise taxes and other taxes imposed on or measured by income, the
Notes be treated as debt. The parties to this Agreement and the Holder of each
Note, by acceptance of its Note, and each Beneficial Owner thereof, agree to
treat, and to take no action inconsistent with the treatment of, the related
Notes in accordance with the preceding sentence for purposes of federal income
taxes, state and local income and franchise taxes and other taxes imposed on or
measured by income.
Section 10.15. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
OF THE STATE OF NEW YORK.
(b) THE TRUST, THE SERVICER, THE DEPOSITOR, THE COLLATERAL
AGENT AND THE INDENTURE TRUSTEE HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT
LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND EACH WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH IN SECTION
10.06 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID. THE
TRUST, THE DEPOSITOR, THE SERVICER, THE COLLATERAL AGENT AND THE INDENTURE
TRUSTEE EACH HEREBY WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT. NOTHING IN THIS SECTION 10.15 SHALL AFFECT THE RIGHT OF THE TRUST, THE
DEPOSITOR, THE SERVICER, THE COLLATERAL AGENT OR THE INDENTURE TRUSTEE TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT ANY OF THEIR RIGHTS
TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE TRUST, THE DEPOSITOR, THE SERVICER, THE COLLATERAL
AGENT AND THE INDENTURE TRUSTEE EACH HEREBY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS
AGREEMENT. INSTEAD, ANY DISPUTE WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A
JURY.
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[Remainder of Page Intentionally Left Blank]
47
[Signature Page to Sale and Servicing Agreement]
IN WITNESS WHEREOF, the Servicer, the Trust, the Indenture
Trustee, the Collateral Agent and the Depositor have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.,
as Depositor
By:
---------------------------------------
Name:
Title:
ABFS MORTGAGE LOAN TRUST 2000-4
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity,
but solely as Owner Trustee under the Trust
Agreement
By:
---------------------------------------
Name:
Title:
AMERICAN BUSINESS CREDIT, INC., as Servicer
By:
---------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Indenture
Trustee and Collateral Agent
By:
---------------------------------------
Name:
Title:
[Signature Page to Sale and Servicing Agreement]
SCHEDULE I
MORTGAGE LOAN SCHEDULE
[See Schedule I to Unaffiliated Seller's Agreement]
APPENDIX I
DEFINED TERMS
[See Appendix I to Indenture]
EXHIBITS TO SALE AND SERVICING AGREEMENT
EXHIBIT A
CONTENTS OF THE MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items (copies to the extent the originals have
been delivered to the Collateral Agent, on behalf of the Indenture Trustee, for
the benefit of the Noteholders and the Note Insurer, pursuant to Section 2.05 of
the Sale and Servicing Agreement), all of which shall be available for
inspection by the Noteholders, to the extent required by applicable laws:
1. The original Mortgage Note, with all prior and intervening
endorsements showing a complete chain of endorsements from the
originator of the Mortgage Loan to the Person so endorsing the
Mortgage Loan to the Trustee, endorsed by such Person "Pay to
the order of ________________ without recourse" and signed, by
facsimile or manual signature, in the name of the Unaffiliated
Seller by a Responsible Officer.
2. Either: (i) the original Mortgage, and related power of
attorney, if any, with evidence of recording thereon, or (ii)
a copy of the Mortgage and related power of attorney, if any,
certified as a true copy of the original Mortgage or power of
attorney by a Responsible Officer of the Unaffiliated Seller
on the face of such copy substantially as follows: "certified
true and correct copy of original which has been transmitted
for recordation."
3. Either: (i) The original Assignment of Mortgage in recordable
form in blank or (ii) a copy of the Assignment of Mortgage
certified as a true copy of the original Assignment of
Mortgage by a Responsible Officer of the Unaffiliated Seller
on the face of such copy substantially as follows: "certified
true and correct copy of original which has been transmitted
for recordation." Any such Assignments of Mortgage may be made
by blanket assignments for Mortgage Loans secured by the
Mortgaged Properties located in the same county, if permitted
by applicable law.
4. The original lender's policy of title insurance or a true copy
thereof, or if such original lender's title insurance policy
has been lost, a copy thereof certified by the appropriate
title insurer to be true and complete, or if such lender's
title insurance policy has not been issued as of the Closing
Date, a marked up commitment (binder) to issue such policy.
5. All original intervening assignments, if any, showing a
complete chain of assignments from the originator to the
related Originator, including any recorded warehousing
assignments, with evidence of recording thereon, certified by
a Responsible Officer of the related Originator by facsimile
or manual signature as a true copy of the original of such
intervening assignments.
6. Originals of all assumption, written assurance, substitution
and modification agreements, if any.
A-1
EXHIBIT B
INDENTURE TRUSTEE'S ACKNOWLEDGMENT OF RECEIPT
December __, 2000
Bear Xxxxxxx Asset Backed Securities, Inc. American Business Credit, Inc.
000 Xxxx Xxxxxx XxxxXxxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
The Chase Manhattan Bank, Ambac Assurance Corporation
as Collateral Agent One State Street Plaza
000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Re: Sale and Servicing Agreement, dated as of December 1,
2000 among Bear Xxxxxxx Asset Backed Securities,
Inc., as Depositor, ABFS Mortgage Loan Trust 2000-4,
American Business Credit, Inc., as Servicer and The
Chase Manhattan Bank, as Indenture Trustee and as
Collateral Agent
Ladies and Gentlemen:
In accordance with Section 2.06 of the above-captioned Sale
and Servicing Agreement, the undersigned, as Indenture Trustee, hereby
acknowledges receipt by it in good faith without notice of adverse claims, of
the Note Insurance Policy, and declares that it holds and will hold the Note
Insurance Policy in trust for the exclusive use and benefit of all present and
future Noteholders.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in Appendix I to the Indenture, dated as of
December 1, 2000, by and between ABFS Mortgage Loan Trust 2000-4 and the
Indenture Trustee.
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By:
----------------------------------
Name:
Title:
B-1
EXHIBIT C
COLLATERAL AGENT'S ACKNOWLEDGEMENT OF RECEIPT
December __, 2000
Bear Xxxxxxx Asset Backed Securities, Inc. American Business Credit, Inc.
000 Xxxx Xxxxxx XxxxXxxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
The Chase Manhattan Bank, Ambac Assurance Corporation
as Indenture Trustee One State Street Plaza
and Collateral Agent Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Sale and Servicing Agreement, dated as of December 1,
2000 among Bear Xxxxxxx Asset Backed Securities,
Inc., as Depositor, ABFS Mortgage Loan Trust 2000-4,
American Business Credit, Inc., as Servicer and The
Chase Manhattan Bank, as Indenture Trustee and as
Collateral Agent
Ladies and Gentlemen:
In accordance with Section 2.06 of the above-captioned Sale
and Servicing Agreement, the undersigned, as Collateral Agent, hereby
acknowledges receipt by it in good faith without notice of adverse claims,
subject to the provisions of Sections 2.04 and 2.05 of the Sale and Servicing
Agreement (as such provisions relate to the Mortgage Loans), of, with respect to
each of the Mortgage Loans, the Mortgage File containing the original Mortgage
Note, except with respect to the list of exceptions attached hereto, and based
on its examination and only as to the foregoing, the information set forth in
the Mortgage Loan Schedule accurately reflects information set forth in the
Mortgage Note, and declares that it holds and will hold such documents and the
other documents delivered to it constituting the Indenture Trustee's Mortgage
Files, and that it holds or will hold all such assets and such other assets
included in the definition of "Trust Estate" that are delivered to it, on behalf
of the Indenture Trustee, for the exclusive use and benefit of all present and
future Noteholders and the Note Insurer.
The Collateral Agent has made no independent examination of
any such documents beyond the review specifically required in the
above-referenced Sale and Servicing Agreement. The Collateral Agent makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any such documents or any of the Mortgage Loans identified on
the Mortgage Loan Schedule, or (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan.
C-1
The Schedule of Mortgage Loans is attached to this Receipt.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in Appendix I to the Indenture, dated as of
December 1, 2000, by and between ABFS Mortgage Loan Trust 2000-4 and the
Indenture Trustee.
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
------------------------------------
Name:
Title:
C-2
EXHIBIT D
INITIAL CERTIFICATION OF COLLATERAL AGENT
______________, 2000
Bear Xxxxxxx Asset Backed Securities, Inc. American Business Credit, Inc.
000 Xxxx Xxxxxx XxxxXxxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
The Chase Manhattan Bank, Ambac Assurance Corporation
as Indenture Trustee One State Street Plaza
and Collateral Agent Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Sale and Servicing Agreement, dated as of December 1,
2000 among Bear Xxxxxxx Asset Backed Securities,
Inc., as Depositor, ABFS Mortgage Loan Trust 2000-4,
American Business Credit, Inc., as Servicer and The
Chase Manhattan Bank, as Indenture Trustee and as
Collateral Agent
Ladies and Gentlemen:
In accordance with the provisions of Section 2.06 of the
above-referenced Sale and Servicing Agreement, the undersigned, as Collateral
Agent, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
listed on the attachment hereto), it has reviewed the documents delivered to it
pursuant to Section 2.05 of the Sale and Servicing Agreement and has determined
that (i) all documents required to be delivered to it pursuant to Section 2.05
of the above-referenced Sale and Servicing Agreement are in its possession, (ii)
such documents have been reviewed by it and appear regular on their face and
have not been mutilated, damaged, torn or otherwise physically altered
(handwritten additions, changes or corrections do not constitute physical
alteration if they reasonably appear to have been initialed by the Mortgagor),
appear regular on their face and relate to such Mortgage Loan and (iii) based on
its examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule as to the information in clauses (i), (ii),
(v) and (vi) of the definition of "Mortgage Loan Schedule" respecting such
Mortgage Loan accurately reflects the information set forth in Indenture
Trustee's Mortgage File. The Collateral Agent has made no independent
examination of such documents beyond the review specifically required in the
above-referenced Sale and Servicing Agreement. The Collateral Agent makes no
representations as to: (x) the validity, legality, enforceability or genuineness
of any such documents contained in each or any of the Mortgage Loans identified
D-1
on the Mortgage Loan Schedule, or (y) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Sale and Servicing
Agreement.
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
-------------------------------------
Name:
Title:
D-2
EXHIBIT E
FINAL CERTIFICATION OF COLLATERAL AGENT
________________, 2000
Bear Xxxxxxx Asset Backed Securities, Inc. American Business Credit, Inc.
000 Xxxx Xxxxxx XxxxXxxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
The Chase Manhattan Bank, Ambac Assurance Corporation
as Indenture Trustee One State Street Plaza
and Collateral Agent Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Sale and Servicing Agreement, dated as of December 1,
2000 among Bear Xxxxxxx Asset Backed Securities,
Inc., as Depositor, ABFS Mortgage Loan Trust 2000-4,
American Business Credit, Inc., as Servicer and The
Chase Manhattan Bank, as Indenture Trustee and as
Collateral Agent
Ladies and Gentlemen:
In accordance with the provisions of Section 2.06 of the
above-referenced Sale and Servicing Agreement, the undersigned, as Collateral
Agent, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
listed on the attachment hereto), it has reviewed the documents delivered to it
pursuant to Section 2.05 of the Sale and Servicing Agreement and has determined
that (i) all documents required to be delivered to it pursuant to Section 2.05
of the above-referenced Sale and Servicing Agreement are in its possession, (ii)
such documents have been reviewed by it and appear regular on their face and
have not been mutilated, damaged, torn or otherwise physically altered
(handwritten additions, changes or corrections do not constitute physical
alteration if they reasonably appear to have been initialed by the Mortgagor)
appears regular on its face and relates to such Mortgage Loan and (iii) based on
its examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately
reflects the information set forth in the Indenture Trustee's Mortgage File. The
Collateral Agent has made no independent examination of such documents beyond
the review specifically required in the above-referenced Sale and Servicing
Agreement. The Collateral Agent makes no representations as to: (x) the
validity, legality, enforceability or genuineness of any such documents
contained in each or any of the Mortgage Loans identified on the Mortgage
E-1
Loan Schedule, or (y) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Sale and Servicing
Agreement.
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
------------------------------------
Name:
Title:
E-2
EXHIBIT F
REQUEST FOR RELEASE OF DOCUMENTS
________________, 2000
The Chase Manhattan Bank,
as Indenture Trustee
and Collateral Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Sale and Servicing Agreement, dated as of December 1, 2000
among Bear Xxxxxxx Asset Backed Securities, Inc., as
Depositor, ABFS Mortgage Loan Trust 2000-4, American Business
Credit, Inc., as Servicer and The Chase Manhattan Bank, as
Indenture Trustee and as Collateral Agent
In connection with the administration of the pool of Mortgage Loans
held by The Chase Manhattan Bank, as Collateral Agent, on behalf of The Chase
Manhattan Bank, as Indenture Trustee, for the benefit of the Noteholders and the
Note Insurer, we request the release, and acknowledge receipt, of the (Indenture
Trustee's Mortgage File/[specify document]) for the Mortgage Loan described
below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
-------------------------------------
Mortgage Loan Number:
---------------------
Reason for Requesting Documents (check one)
-------------------------------------------
1. Mortgage Loan Paid in Full
---- (Servicer hereby certifies that all amounts received
in connection therewith have been credited to the
Collection Account.)
2. Mortgage Loan Liquidated
---- (Servicer hereby certifies that all proceeds of
foreclosure, insurance or other liquidation have been
finally received and credited to the Collection
Account.)
3. Mortgage Loan in Foreclosure
----
F-1
4. Mortgage Loan Repurchased Pursuant to Section 5.15 of the Sale and
---- Servicing Agreement.
5. Mortgage Loan Repurchased or Substituted pursuant to Article II or III
---- of the Sale and Servicing Agreement (Servicer hereby certifies that the
repurchase price or Substitution Adjustment has been credited to the
related Distribution Account and that the substituted mortgage loan is
a Qualified Substitute Mortgage Loan.)
6. Other (explain)
---- ----------------------------------------------------
If box 1 or 2 above is checked, and if all or part of the Indenture
Trustee's Mortgage File was previously released to us, please release to us our
previous receipt on file with you, as well as any additional documents in your
possession relating to the above specified Mortgage Loan.
If box 3, 4, 5 or 6 above is checked, upon our return of all of the
above documents to the Collateral Agent, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
AMERICAN BUSINESS CREDIT, INC.,
as Servicer
By:
---------------------------------------
Name:
Title:
Documents returned to Collateral Agent:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
-------------------------------
Name:
Title:
Date:
F-2
EXHIBIT G
[RESERVED]
G-1
