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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest Event
Reported): July 30, 1999
BEAR STEARNS ASSET BACKED SECURITIES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 333-43091 13-3836437
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
245 Park Avenue
New York, New York 10167
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(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code (212) 272-4095
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<PAGE>
Item 5. Other Events.
On July 30, 1999, Bear Stearns Asset Backed Securities, Inc. (the
"Company") executed a Pooling and Servicing Agreement dated as of July 1, 1999
(the "Pooling and Servicing Agreement") among the Company, as depositor,
Countrywide Home Loans, Inc., as seller and master servicer ("Countrywide"),
and The Bank of New York, as trustee (the "Trustee"). The Pooling and
Servicing Agreement is annexed hereto as Exhibit 99.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
The following is filed herewith. The exhibit number corresponds with Item
601(b) of Regulation S-K.
Exhibit No. Description
-------------------------- --------------------------------------
99 Pooling and Servicing Agreement dated
as of July 1, 1999 among the Company,
Countrywide and the Trustee, providing
for the issuance of Bear Stearns Asset
Backed Securities, Inc., Asset Backed
Certificates, Series 1999-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
BEAR STEARNS ASSET BACKED
SECURITIES, INC.
By: /s/ Patricia A. Jehle
---------------------------------
Patricia A. Jehle
President
Dated: August 13, 1999
<PAGE>
Exhibit Index
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<TABLE>
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Exhibit No. Description Page
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<S> <C> <C>
99 Pooling and Servicing Agreement dated 6
as of July 1, 1999 among the Company,
Countrywide and the Trustee, providing
for the issuance of Bear Stearns Asset
Backed Securities, Inc., Asset Backed
Certificates, Series 1999-1
</TABLE>
Exhibit 99
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BEAR STEARNS ASSET BACKED SECURITIES, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller and Master Servicer
and
THE BANK OF NEW YORK,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of July 1, 1999
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ASSET-BACKED CERTIFICATES, SERIES 1999-1
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<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
ARTICLE I.
DEFINITIONS
<S> <C> <C>
Section 1.01. Defined Terms...............................................................I-1
Section 1.02. Certain REMIC-Related Defined Terms........................................I-44
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans...............................................II-1
Section 2.02. Acceptance by Trustee of the Mortgage Loans................................II-4
Section 2.03. Representations, Warranties and Covenants of the Master Servicer and
the Seller.................................................................II-6
Section 2.04. Representations and Warranties of the Depositor...........................II-17
Section 2.05. Delivery of Opinion of Counsel in Connection with Substitutions and
Repurchases...............................................................II-19
Section 2.06. Authentication and Delivery of Certificates...............................II-20
Section 2.07. Covenants of the Master Servicer..........................................II-20
ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS III
Section 3.01. Master Servicer to Service Mortgage Loans.................................III-1
Section 3.02. Subservicing; Enforcement of the Obligations of Master Servicer.III..........-2
Section 3.03. Rights of the Depositor, the Trustee in Respect of the Master Servicer....III-2
Section 3.04. Trustee to Act as Master Servicer.........................................III-3
Section 3.05. Collection of Mortgage Loan Payments; Certificate Account;
Distribution Account......................................................III-3
Section 3.06. Collection of Taxes, Assessments and Similar Items; Escrow Accounts.......III-6
Section 3.07. Access to Certain Documentation and Information Regarding the
Mortgage Loans............................................................III-7
Section 3.08. Permitted Withdrawals from the Certificate Account, Distribution
Account, the Fixed Rate Carryover Reserve Fund and the Adjustable
Rate Carryover Reserve Fund...............................................III-7
Section 3.09. [Reserved................................................................III-10
Section 3.10. Maintenance of Hazard Insurance..........................................III-10
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements................III-11
Section 3.12. Realization Upon Defaulted Mortgage Loans; Determination of Excess
Proceeds and Realized Losses; Repurchase of Certain Mortgage Loans.......III-12
Section 3.13. Trustee to Cooperate; Release of Mortgage Files..........................III-15
Section 3.14. Documents, Records and Funds in Possession of Master Servicer to be
Held for the Trustee.I....................................................II-16
Section 3.15. Servicing Compensation...................................................III-16
Section 3.16. Access to Certain Documentation..........................................III-17
Section 3.17. Annual Statement as to Compliance........................................III-17
Section 3.18. Annual Independent Public Accountants' Servicing Statement; Financial
Statements...............................................................III-17
ARTICLE IV.
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances...................................................................IV-1
Section 4.02. Reduction of Servicing Compensation in Connection with Prepayment
Interest Shortfalls........................................................IV-1
Section 4.03. REMIC Distributions........................................................IV-2
Section 4.04. Distributions..............................................................IV-2
Section 4.05. Monthly Statements to Certificateholders...................................IV-8
Section 4.06. REMIC 1F, REMIC 1V, REMIC 2, REMIC 3, and REMIC 4 Allocations.............IV-10
Section 4.07. Extra Master Servicing Fee................................................IV-16
Section 4.08. Fixed Rate Carryover Reserve Fund.........................................IV-17
Section 4.09. Adjustable Rate Carryover Reserve Fund....................................IV-18
ARTICLE V.
THE CERTIFICATES
Section 5.01. The Certificates............................................................V-1
Section 5.02. Certificate Register; Registration of Transfer and Exchange of
Certificates................................................................V-2
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...........................V-6
Section 5.04. Persons Deemed Owners.......................................................V-6
Section 5.05. Access to List of Certificateholders' Names and Addresses...................V-6
Section 5.06. Book-Entry Certificates.....................................................V-6
Section 5.07. Notices to Depository.......................................................V-8
Section 5.08. Definitive Certificates.....................................................V-8
Section 5.09. Maintenance of Office or Agency.............................................V-8
ARTICLE VI.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER
Section 6.01. Respective Liabilities of the Depositor, the Master Servicer and the
Seller.....................................................................VI-1
Section 6.02. Merger or Consolidation of the Depositor, the Master Servicer or the
Seller.....................................................................VI-1
Section 6.03. Limitation on Liability of the Depositor, the Seller, the Master
Servicer and others........................................................VI-1
Section 6.04. Limitation on Resignation of Master Servicer...............................VI-2
Section 6.05. Errors and Omissions Insurance; Fidelity Bonds.............................VI-2
ARTICLE VII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 7.01. Events of Default.........................................................VII-1
Section 7.02. Trustee to Act; Appointment of Successor..................................VII-2
Section 7.03. Notification to Certificateholders........................................VII-3
ARTICLE VIII.
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee........................................................VIII-1
Section 8.02. Certain Matters Affecting the Trustee....................................VIII-2
Section 8.03. Trustee Not Liable for Mortgage Loans....................................VIII-3
Section 8.04. Trustee May Own Certificates.............................................VIII-3
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses.......................VIII-3
Section 8.06. Eligibility Requirements for Trustee.....................................VIII-4
Section 8.07. Resignation and Removal of Trustee.......................................VIII-4
Section 8.08. Successor Trustee........................................................VIII-5
Section 8.09. Merger or Consolidation of Trustee.......................................VIII-6
Section 8.10. Appointment of Co-Trustee or Separate Trustee............................VIII-6
Section 8.11. Tax Matters..............................................................VIII-7
ARTICLE IX.
TERMINATION
Section 9.01. Termination upon Liquidation or Repurchase of all Mortgage Loans...........IX-1
Section 9.02. Final Distribution on the Certificates.....................................IX-1
Section 9.03. Additional Termination Requirements........................................IX-3
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment...................................................................X-1
Section 10.02. Recordation of Agreement; Counterparts......................................X-2
Section 10.03. Governing Law...............................................................X-2
Section 10.04. Intention of Parties........................................................X-3
Section 10.05. Notices.....................................................................X-3
Section 10.06. Severability of Provisions..................................................X-4
Section 10.07. Assignment..................................................................X-4
Section 10.08. Limitation on Rights of Certificateholders..................................X-4
Section 10.09. Inspection and Audit Rights.................................................X-5
Section 10.10. Certificates Nonassessable and Fully Paid...................................X-6
</TABLE>
<PAGE>
POOLING AND SERVICING AGREEMENT, dated as of July 1, 1999, among BEAR
STEARNS ASSET BACKED SECURITIES, INC., a Delaware corporation, as depositor
(the "Depositor"), COUNTRYWIDE HOME LOANS, INC., a New York corporation (in its
capacity as seller hereunder, the "Seller", and in its capacity as master
servicer hereunder, the "Master Servicer"), and The Bank of New York, a New
York banking corporation, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. As provided herein, the Trustee
shall elect that the Trust Fund be treated for Federal income tax purposes as
four separate real estate mortgage investment conduits (each a "REMIC" or, in
the alternative, "REMIC 1", "REMIC 2", "REMIC 3", and "REMIC 4", respectively,
REMIC 4 also being referred to as the "Upper Tier REMIC." The Class AF-1, Class
AF-2, Class AF-3, Class AF-4, Class AF-5, Class AF-6, Class MF-1, Class MF-2,
Class BF, Class AV-1, Class MV-1, Class MV-2, Class BV, Class BF-IO, and Class
BV-IO Certificates represent ownership of all of the regular interests in REMIC
4. The Class R-4 Interest represents the sole class of "residual interest" in
REMIC 4 for purposes of the REMIC provisions. Each of the Class R-1, Class R-2,
and Class R-3 Interests represent the sole class of residual interest in REMIC
1, REMIC 2, and REMIC 3, respectively, for purposes of the REMIC provisions.
Under this Agreement, there are also three classes of uncertificated REMIC 1F
regular interests issued (the Class T1-F1, Class T1-F2, Class T1-F3) three
classes of uncertificated REMIC IV regular interests issued (Class T1-V1, Class
T1-V2, and Class T1-V3 Interests), eight classes of uncertificated REMIC 2
regular interests issued (the Class T2-F1, Class T2-F2, Class T2-F3, Class
T2-F4, Class T2-V1, Class T2-V2, Class T2-V3, and Class T2-V4 Interests),
twenty-one classes of uncertificated REMIC 3 regular interests issued (the
Class T3-F1, Class T3-F2, Class T3-F3, Class T3-F4, Class T3-F5, Class T3-F6,
Class T3-F7, Class T3-F8, Class T3-F9, Class T3-F10, Class T3-F11, Class
T3-F12, Class T3-F13, Class T3-V1, Class T3-V2, Class T3-V3, Class T3-V4, Class
T3-V5, Class T3-V6, Class T3-V7 and Class T3-V8 Interests), and twenty-six
classes of uncertificated REMIC 4 regular interests issued (Class T4-F1, Class
T4-F2, Class T4-F3, Class T4-F4, Class T4-F5, Class T4-F6, Class T4-F7, Class
T4-F8, Class T4-F9, Class T4-F10, Class T4-F11, Class T4-F12, Class T4-F13,
Class T4-F14, Class T4-F15, Class T4-F16, Class T4-F17, Class T4-F18, Class
T4-V1, Class T4-V2, Class T4-V3, Class T4-V4, Class T4-V5, Class T4-V6, Class
T4-V7, and Class T4-V8 Interests). The REMIC 1F and REMIC 1V Regular Interests
will be held as assets of REMIC 2, the REMIC 2 Regular Interests will be held
as assets of REMIC 3, and the REMIC 3 Regular Interests will be held as assets
of REMIC 4. The "latest possible maturity date" for federal income tax purposes
of all interests created hereby will be the Latest Possible Maturity Date.
The Trust Fund shall be named, and may be referred to as, the "Bear
Stearns Asset Backed Securities, Inc. Home Equity Loan Trust 1999-1" (including
for purposes of any endorsement or assignment of a Mortgage Note or Mortgage).
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Seller and the Trustee agree as follows:
<PAGE>
ARTICLE I.
DEFINITIONS
Section 1.01. Defined Terms.
In addition to those defined terms defined in Section 1.02, whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Accrual Period: With respect to the Fixed Rate Certificates and any
Distribution Date, the calendar month immediately preceding such Distribution
Date. With respect to the Adjustable Rate Certificates and any Distribution
Date, the period commencing on the immediately preceding Distribution Date (or,
in the case of the first Distribution Date, the Closing Date) and ending on the
day immediately preceding such Distribution Date. All calculations of interest
on the Fixed Rate Certificates will be made on the basis of a 360-day year
consisting of twelve 30-day months, and all calculations of interest on the
Adjustable Rate Certificates will be made on the basis of the actual number of
days elapsed in the related Accrual Period and in a 360 day year.
Adjustable Net Rate: The weighted average Net Mortgage Rate for
Adjustable Rate Mortgage Loans. For purposes of the definition of Adjustable
Net Rate, all calculations of interest in respect of a Mortgage Loan at the
Mortgage Rate less the related Servicing Fee Rate will be made on the basis of
the actual number of days in the related Accrual Period and a 360 day year. The
Adjustable Net Rate in respect of the first Distribution Date shall be
10.6938%.
Adjustable Rate Carryover Reserve Fund: The separate Eligible Account
created and initially maintained by the Trustee pursuant to Section 4.09 in the
name of the Trustee for the benefit of the Adjustable Rate Certificateholders
and designated "The Bank of New York in trust for registered holders of Bear
Stearns Asset Backed Securities, Inc., Asset-Backed Certificates, Series
1999-1". Funds in the Adjustable Rate Carryover Reserve Fund shall be held in
trust for the Adjustable Rate Certificateholders for the uses and purposes set
forth in this Agreement.
Adjustable Rate Certificate Carryover: With respect to any
Distribution Date, an amount equal to the sum of (i) the Class AV-1 Interest
Carryover Amount for such Distribution Date (if any), (ii) the Class MV-1
Interest Carryover Amount for such Distribution Date (if any), (iii) the Class
MV-2 Interest Carryover Amount for such Distribution Date (if any) and (iv) the
Class BV Interest Carryover Amount for such Distribution Date (if any);
provided that when the term Adjustable Rate Certificate Carryover is used with
respect to one Class of Adjustable Rate Certificates, it shall mean such
carryover amount listed in clauses (i), (ii), (iii) or (iv), as applicable,
with the same Class designation.
Adjustable Rate Certificateholder: A holder of an Adjustable Rate
Certificate.
Adjustable Rate Certificate Principal Balance: The sum of the Class
AV-1 Certificate Principal Balance, the Class MV-1 Certificate Principal
Balance, the Class MV-2 Certificate Principal Balance and the Class BV
Certificate Principal Balance.
Adjustable Rate Certificates: Any of the Class AV-1, Class MV-1,
Class MV-2, Class BV and/or Class BV-IO Certificates.
Adjustable Rate Class A Certificate Principal Balance: The Class AV-1
Certificate Principal Balance.
Adjustable Rate Class A Principal Distribution Amount: With respect
to (i) any Distribution Date prior to the Adjustable Rate Stepdown Date, or any
Distribution Date on which an Adjustable Rate Trigger Event has occurred, 100%
of the Adjustable Rate Principal Distribution Amount for such Distribution Date
and (ii) any Distribution Date on or after the Adjustable Rate Stepdown Date
where an Adjustable Rate Trigger Event has not occurred, the excess of (A) the
Adjustable Rate Class A Certificate Principal Balance immediately prior to such
Distribution Date over (B) the lesser of (I) 60.50% of the Stated Principal
Balance of the Adjustable Rate Mortgage Loans on the immediately preceding Due
Date and (II) the Stated Principal Balance of the Adjustable Rate Mortgage
Loans on the immediately preceding Due Date less the OC Floor for the
Adjustable Rate Mortgage Loans.
Adjustable Rate Class B Principal Distribution Amount: With respect
to any Distribution Date on or after the Adjustable Rate Stepdown Date and as
long as an Adjustable Rate Trigger Event has not occurred and continuing, the
excess of (i) the sum of (A) the Adjustable Rate Class A Certificate Principal
Balance (after taking into account distribution of the Adjustable Rate Class A
Principal Distribution Amount on such Distribution Date), (B) the Class MV-1
Certificate Principal Balance (after taking into account distribution of the
Class MV-1 Principal Distribution Amount on such Distribution Date), (C) the
Class MV-2 Certificate Principal Balance (after taking into account
distribution of the Class MV-2 Principal Distribution Amount for such
Distribution Date), and (D) the Class BV Certificate Principal Balance
immediately prior to such Distribution Date over (ii) the lesser of (A) 94.50%
of the Stated Principal Balance of the Adjustable Rate Mortgage Loans on the
preceding Due Date and (B) the Stated Principal Balance of the Adjustable Rate
Mortgage Loans on the preceding Due Date less the OC Floor for the Adjustable
Rate Mortgage Loans provided that after the Adjustable Rate Class A Certificate
Principal Balance, the Class MV-1 Certificate Principal Balance and the Class
MV-2 Certificate Principal Balance has been reduced to zero, the Adjustable
Rate Class B Principal Distribution Amount for such Distribution Date will
equal 100% of the Adjustable Rate Principal Distribution Amount for such
Distribution Date.
Adjustable Rate Excess Cashflow: With respect to any Distribution
Date, the aggregate remaining amounts constituting Adjustable Rate Excess
Cashflow for such Distribution Date pursuant to Sections 4.04(b)(v) and
4.04(e)(v).
Adjustable Rate Extra Principal Distribution Amount: With respect to
any Distribution Date, the lesser of (i) the excess, if any, of the Adjustable
Rate Specified Overcollateralization Amount for such Distribution Date over the
Adjustable Rate Overcollateralization Amount for such Distribution Date (after
giving effect to distributions of principal on the Adjustable Rate Certificates
other than any Adjustable Rate Extra Principal Distribution Amount) and (ii)
the sum of the Adjustable Rate Excess Cashflow and Fixed Rate Remainder Excess
Cashflow for such Distribution Date available therefor in the priority set
forth in Section 4.04.
Adjustable Rate Interest Funds: With respect to Adjustable Rate
Mortgage Loans and any Master Servicer Advance Date, the sum, without
duplication, of (i) all scheduled interest collected during the related Due
Period with respect to the Adjustable Rate Mortgage Loans less the related
Servicing Fee, (ii) all Advances relating to interest with respect to the
Adjustable Rate Mortgage Loans, (iii) all Compensating Interest with respect to
the Adjustable Rate Mortgage Loans and (iv) Liquidation Proceeds with respect
to the Adjustable Rate Mortgage Loans collected during the related Due Period
(to the extent such Liquidation Proceeds relate to interest) less all
Nonrecoverable Advances relating to interest reimbursed during the related Due
Period.
Adjustable Rate Mortgage Loans: The group of Mortgage Loans
identified in the related Mortgage Loan Schedule as having a Mortgage Rate
which is adjustable for the life of the related Mortgage, including any
Mortgage Loans delivered in replacement thereof.
Adjustable Rate Overcollateralization Amount: With respect to any
Distribution Date, the excess, if any, of the Stated Principal Balance of the
Adjustable Rate Mortgage Loans as of the preceding due date over the
Certificate Principal Balances of all Adjustable Rate Certificates on such date
(after taking into account the payment of principal other than any Adjustable
Rate Extra Principal Distribution Amount, on such Certificates on such
Distribution Date).
Adjustable Rate Principal Distribution Amount: With respect to each
Distribution Date, the sum of (i) the Adjustable Rate Principal Funds for such
Distribution Date and (ii) any Adjustable Rate Extra Principal Distribution
Amount for such Distribution Date.
Adjustable Rate Principal Funds: With respect to the Adjustable Rate
Mortgage Loans, the sum, without duplication, of (i) the scheduled principal
collected during the related Due Period or Advanced on or before the related
Master Servicer Advance Date, (ii) prepayments collected during the related
Prepayment Period, (iii) the Stated Principal Balance of each Adjustable Rate
Mortgage Loan that was repurchased by the Seller or the Master Servicer, (iv)
the aggregate of all Substitution Adjustment Amounts for the related
Determination Date in connection with the substitution of Adjustable Rate
Mortgage Loans pursuant to Section 2.03(c) and (v) all Liquidation Proceeds
collected during the related Due Period (to the extent such Liquidation
Proceeds relate to principal) less all Nonrecoverable Advances relating to
principal reimbursed during the related Due Period.
Adjustable Rate Remainder Excess Cashflow: With respect to any
Distribution Date, the Adjustable Rate Excess Cashflow for such Distribution
Date remaining after the applications set forth in Section 4.04(g)(i) through
(vii).
Adjustable Rate Specified Overcollateralization Amount: Prior to the
Adjustable Rate Stepdown Date, 2.75% of the Stated Principal Balance of the
Adjustable Rate Mortgage Loans as of the Cut-off Date, and on and after the
Adjustable Rate Stepdown Date, 5.50% of the Stated Principal Balance of the
Adjustable Rate Mortgage Loans as of the preceding Due Date, subject to a
minimum amount equal to the OC Floor for the Adjustable Rate Mortgage Loans;
provided that, if on any Distribution Date an Adjustable Rate Trigger Event has
occurred, the Adjustable Rate Specified Overcollateralization Amount shall not
be reduced to the applicable percentage of the then current Stated Principal
Balance of the Adjustable Rate Mortgage Loans until the Distribution Date on
which an Adjustable Rate Trigger Event no longer exists.
Adjustable Rate Standard Rate: The lesser of (i) the sum of (A) One
Month LIBOR plus (B) the Class BV Margin, and (ii) the Adjustable Net Rate for
such Distribution Date.
Adjustable Rate Stepdown Date: With respect to Adjustable Rate
Certificates, the later to occur of (i) the Distribution Date in August 2002 or
(ii) the first Distribution Date on which the Adjustable Rate Class A
Certificate Principal Balance is less than or equal to 60.50% of the Stated
Principal Balance of Adjustable Rate Mortgage Loans as of the preceding Due
Date.
Adjustable Rate Subordinated Certificates: The Class MV-1, Class MV-2
and Class BV Certificates.
Adjustable Rate Trigger Event: With respect to any Distribution Date
after the Adjustable Rate Stepdown Date, (1) the product of (i) 2.5 times (ii)
the quotient of (A) the Stated Principal Balance of all Adjustable Rate
Mortgage Loans 60 or more days delinquent (including Adjustable Rate Mortgage
Loans in foreclosure and REO Properties) and (B) the Stated Principal Balance
of the Adjustable Rate Mortgage Loans as of the preceding Master Servicer
Advance Date (2) equals or exceeds the Required Percentage.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, each date
on which the related Mortgage Rate is subject to adjustment, as provided in the
related Mortgage Note.
Advance: The aggregate of the advances required to be made by the
Master Servicer with respect to any Distribution Date pursuant to Section 4.01,
the amount of any such advances being equal to the sum of (A) the aggregate of
payments of principal and interest (net of the Servicing Fees) on the Mortgage
Loans that were due on the related Due Date and not received as of the close of
business on the related Determination Date and (B) with respect to each REO
Property that has not been liquidated, an amount equal to the excess, if any,
of (x) one month's interest (adjusted to the Net Mortgage Rate) on the Stated
Principal Balance of the related Mortgage Loan over (y) the net monthly rental
income (if any) from such REO Property deposited in the Certificate Account for
such Distribution Date pursuant to Section 3.12, less the aggregate amount of
any such delinquent payments that the Master Servicer has determined would
constitute a Nonrecoverable Advance were an advance to be made with respect
thereto.
Agreement: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto made in accordance with the terms herein.
Amount Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business on
the immediately preceding Determination Date on account of (i) all Scheduled
Payments or portions thereof received in respect of the Mortgage Loans due
after the related Due Date and (ii) Principal Prepayments and Liquidation
Proceeds received in respect of such Mortgage Loans after the last day of the
related Prepayment Period.
Applied Realized Loss Amount: With respect to any Distribution Date,
the sum of the Realized Losses with respect to the Mortgage Loans which are to
be applied in reduction of the Certificate Principal Balance of the
Certificates pursuant to this Agreement, which shall on any such Distribution
Date equal the amount, if any, by which, (i) with respect to the Fixed Rate
Certificates, the Fixed Rate Certificate Principal Balance (after all
distributions of principal on such Distribution Date) exceeds the Stated
Principal Balance of the Fixed Rate Mortgage Loans as of the preceding Due
Date, and (ii) with respect to the Adjustable Rate Certificates, the Adjustable
Rate Certificate Principal Balance (after all distributions of principal on
such Distribution Date) exceeds the Stated Principal Balance of the Adjustable
Rate Mortgage Loans as of the preceding Due Date.
Appraised Value: With respect to any Mortgage Loan originated in
connection with a refinancing, the appraised value of the Mortgaged Property
based upon the appraisal made at the time of such refinancing or, with respect
to any other Mortgage Loan, the lesser of (x) the appraised value of the
Mortgaged Property based upon the appraisal made by a fee appraiser at the time
of the origination of the related Mortgage Loan, and (y) the sales price of the
Mortgaged Property at the time of such origination.
Available Funds Cap: As of any Distribution Date with respect to the
Adjustable Rate Certificates, a per annum rate equal to the quotient of (x) the
total scheduled interest collected or Advanced on the Adjustable Rate Mortgage
Loans based on the Mortgage Rates in effect on the related Due Date less the
related Servicing Fee for such Distribution Date multiplied by 360 over the
actual number of days in the Due Period, divided by (y) the Certificate
Principal Balance of the Adjustable Rate Certificates.
Bankruptcy Code: Title 11 of the United States Code.
Book-Entry Certificates: Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of which
is reflected on the books of the Depository or on the books of a person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.06). As of the Closing
Date, each Class of Regular Certificates (other than the Class B-IO
Certificates) constitutes a Class of Book-Entry Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in the City of New York, New York or the
city in which the Corporate Trust Office of the Trustee is located are
authorized or obligated by law or executive order to be closed.
Certificate: Any one of the certificates of any Class executed and
authenticated by the Trustee in substantially the forms attached hereto as
exhibits.
Certificate Account: The separate Eligible Account created and
initially maintained by the Master Servicer pursuant to Section 3.05(b) with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of the Certificateholders and designated "Countrywide
Home Loans, Inc. in trust for registered holders of Bear Stearns Asset Backed
Securities, Inc., Asset-Backed Certificates, Series 1999-1". Funds in the
Certificate Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
Certificate Group: Either of the Fixed Rate Certificates or the
Adjustable Rate Certificates.
Certificate Owner: With respect to a Book-Entry Certificate, the
person that is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: As to any Certificate (other than any
Class B-IO Certificates) and as of any Distribution Date, the Initial
Certificate Principal Balance of such Certificate less the sum of (i) all
amounts distributed with respect to such Certificate in reduction of the
Certificate Principal Balance thereof on previous Distribution Dates pursuant
to Section 4.04, and (ii) any Applied Realized Loss Amounts allocated to such
Certificate on previous Distribution Dates pursuant to (i) Section 4.04(l) for
the Fixed Rate Certificates and (ii) Section 4.04(m) for the Adjustable Rate
Certificates. References herein to the Certificate Principal Balance of a Class
of Certificates or a Certificate Group shall mean the Certificate Principal
Balances of all Certificates in such Class or all Certificates in such
Certificate Group, as the case may be.
Certificate Register: The register maintained pursuant to Section
5.02 hereof.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register (initially, Cede & Co., as nominee
for the Depository, in the case of any Class of Regular Certificates (other
than the Class B-IO Certificates), except that solely for the purpose of giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor or any affiliate of the Depositor shall be deemed not to be
Outstanding and the Voting Interest evidenced thereby shall not be taken into
account in determining whether the requisite amount of Voting Interests
necessary to effect such consent has been obtained; provided that if any such
Person (including the Depositor) owns 100% of the Voting Interests evidenced by
a Class of Certificates, such Certificates shall be deemed to be Outstanding
for purposes of any provision hereof that requires the consent of the Holders
of Certificates of a particular Class as a condition to the taking of any
action hereunder. The Trustee is entitled to rely conclusively on a
certification of the Depositor or any affiliate of the Depositor in determining
which Certificates are registered in the name of an affiliate of the Depositor.
Class: All Certificates bearing the same Class designation as set
forth in Section 5.01 hereof.
Class AF-1 Certificate: Any Certificate designated as a "Class AF-1
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class AF-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-1
Certificates.
Class AF-1 Current Interest: As of any Distribution Date, the
interest accrued on the Class AF-1 Certificate Principal Balance during the
related Accrual Period at the Class AF-1 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class AF-1 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class AF-1 Current Interest with respect
to prior Distribution Dates over (b) the amount actually distributed to the
Class AF-1 Certificates with respect to interest and (ii) interest thereon (to
the extent permitted by applicable law) at the Class AF-1 Pass-Through Rate for
the related Accrual Period.
Class AF-1 Pass-Through Rate: On any Distribution Date, 6.61% per
annum.
Class AF-2 Certificate: Any Certificate designated as a "Class AF-2
Certificate" on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to distributions as set forth herein.
Class AF-2 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-2
Certificates.
Class AF-2 Current Interest: As of any Distribution Date, the
interest accrued on the Class AF-2 Certificate Principal Balance during the
related Accrual Period at the Class AF-2 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class AF-2 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class AF-2 Current Interest with respect
to prior Distribution Dates over (b) the amount actually distributed to the
Class AF-2 Certificates with respect to interest and (ii) interest thereon (to
the extent permitted by applicable law) at the Class AF-2 Pass-Through Rate for
the related Accrual Period.
Class AF-2 Pass-Through Rate: On any Distribution Date, 7.04% per
annum.
Class AF-3 Certificate: Any Certificate designated as a "Class AF-3
Certificate" on the face thereof, in the form of Exhibit A-3 hereto,
representing the right to distributions as set forth herein.
Class AF-3 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-3
Certificates.
Class AF-3 Current Interest: As of any Distribution Date, the
interest accrued on the Class AF-3 Certificate Principal Balance during the
related Accrual Period at the Class AF-3 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class AF-3 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class AF-3 Current Interest with respect
to prior Distribution Dates over (b) the amount actually distributed to the
Class AF-3 Certificates with respect to interest and (ii) interest thereon (to
the extent permitted by applicable law) at the Class AF-3 Pass-Through Rate for
the related Accrual Period.
Class AF-3 Pass-Through Rate: On any Distribution Date, 7.18% per
annum.
Class AF-4 Certificate: Any Certificate designated as a "Class AF-4
Certificate" on the face thereof, in the form of Exhibit A-4 hereto,
representing the right to distributions as set forth herein.
Class AF-4 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-4
Certificates.
Class AF-4 Current Interest: As of any Distribution Date, the
interest accrued on the Class AF-4 Certificate Principal Balance during the
related Accrual Period at the Class AF-4 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class AF-4 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class AF-4 Current Interest with respect
to prior Distribution Dates over (b) the amount actually distributed to the
Class AF-4 Certificates with respect to interest and (ii) interest thereon (to
the extent permitted by applicable law) at the Class AF-4 Pass-Through Rate for
the related Accrual Period.
Class AF-4 Net Rate Carryover Amount: As of any Distribution Date on
which the Class AF-4 Pass-Through Rate is based upon the Fixed Net Rate Cap,
the sum of (A) if on such Distribution Date the Pass-Through Rate for the Class
AF-4 Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class AF-4 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class AF-4 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class AF-4 Net Rate Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(h),
together with interest thereon at the Pass-Through Rate (without giving effect
to the Fixed Net Rate Cap).
Class AF-4 Pass-Through Rate: On any Distribution Date, the lesser of
(i) 7.46% per annum and (ii) the Fixed Net Rate Cap.
Class AF-5 Certificate: Any Certificate designated as a "Class AF-5
Certificate" on the face thereof, in the form of Exhibit A-5 hereto,
representing the right to distributions as set forth herein.
Class AF-5 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-5
Certificates.
Class AF-5 Current Interest: As of any Distribution Date, the
interest accrued on the Class AF-5 Certificate Principal Balance during the
related Accrual Period at the Class AF-5 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class AF-5 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class AF-5 Current Interest with respect
to prior Distribution Dates over (b) the amount actually distributed to the
Class AF-5 Certificates with respect to interest and (ii) interest thereon (to
the extent permitted by applicable law) at the Class AF-5 Pass-Through Rate for
the related Accrual Period.
Class AF-5 Net Rate Carryover Amount: As of any Distribution Date on
which the Class AF-5 Pass-Through Rate is based upon the Fixed Net Rate Cap,
the sum of (A) if on such Distribution Date the Pass-Through Rate for the Class
AF-5 Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class AF-5 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class AF-5 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class AF-5 Net Rate Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(h),
together with interest thereon at the Pass-Through Rate (without giving effect
to the Fixed Net Rate Cap).
Class AF-5 Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, the lesser of (i) 7.77% per annum and (ii) the
Fixed Net Rate Cap and, on any Distribution Date after the Optional Termination
Date, the lesser of (i) 8.27% per annum and (ii) the Fixed Net Rate Cap.
Class AF-6 Certificate: Any Certificate designated as a "Class AF-6
Certificate" on the face thereof, in the form of Exhibit A-6 hereto,
representing the right to distributions as set forth herein.
Class AF-6 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AF-6
Certificates.
Class AF-6 Current Interest: As of any Distribution Date, the
interest accrued on the Class AF-6 Certificate Principal Balance during the
related Accrual Period at the Class AF-6 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class AF-6 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class AF-6 Current Interest with respect
to prior Distribution Dates over (b) the amount actually distributed to the
Class AF-6 Certificates with respect to interest and (ii) interest thereon (to
the extent permitted by applicable law) at the Class AF-6 Pass-Through Rate for
the related Accrual Period.
Class AF-6 Net Rate Carryover Amount: As of any Distribution Date on
which the Class AF-6 Pass-Through Rate is based upon Fixed Net Rate Cap, the
sum of (A) if on such Distribution Date the Pass-Through Rate for the Class
AF-6 Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class AF-6 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class AF-6 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class AF-6 Net Rate Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(h),
together with interest thereon at the Pass-Through Rate (without giving effect
to the Fixed Net Rate Cap).
Class AF-6 Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, the lesser of (i) 7.40% per annum and (ii) the
Fixed Net Rate Cap and, on any Distribution Date after the Optional Termination
Date, the lesser of 7.90% per annum and (ii) the Fixed Net Rate Cap.
Class AF-6 Principal Distribution Amount: As of any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the Certificate Principal Balance of the Class AF-6 Certificates on such
Distribution Date and the denominator of which is the Fixed Rate Class A
Certificate Principal Balance, (ii) the Fixed Rate Class A Principal
Distribution Amount for such Distribution Date and (iii) the Class AF-6 PDA
Factor for such Distribution Date.
Class AF-6 PDA Factor: As of any Distribution Date set forth below,
the percentage set forth across from such Distribution Date:
Distribution Date Percentage
-------------------------------------------- ----------------
August 1999-July 2002................................. 0%
August 2002-July 2004................................. 45%
August 2004-July 2005................................. 80%
August 2005-July 2006................................. 100%
August 2006 and thereafter............................ 300%
Class AV-1 Certificate: Any Certificate designated as a "Class AV-1
Certificate" on the face thereof, in the form of Exhibit A-11 hereto,
representing the right to distributions as set forth herein.
Class AV-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class AV-1
Certificates.
Class AV-1 Interest Carryover Amount: As of any Distribution Date,
the sum of (A) if on such Distribution Date the Pass-Through Rate for the Class
AV-1 Certificates is based upon the Available Funds Cap, the excess of (i) the
amount of interest the Class AV-1 Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
One-Month LIBOR and the applicable Class AV-1 Margin for such Distribution
Date, up to the Weighted Maximum Rate Cap, over (ii) the amount of interest
payable on the Class AV-1 Certificates at the Available Funds Cap for such
Distribution Date and (B) the Class AV-1 Interest Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(i),
together with interest thereon at a rate equal to the sum of One-Month LIBOR
and the applicable Class AV-1 Margin for such Distribution Date.
Class AV-1 Current Interest: As of any Distribution Date, the
interest accrued on the Class AV-1 Certificate Principal Balance during the
related Accrual Period at the Class AV-1 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class AV-1 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class AV-1 Current Interest with respect
to prior Distribution Dates (excluding any Class AV-1 Interest Carryover
Amount) over (b) the amount actually distributed to the Class AV-1 Certificates
with respect to interest and (ii) interest thereon (to the extent permitted by
applicable law) at the Class AV-1 Pass-Through Rate for the related Accrual
Period.
Class AV-1 Margin: As of any Distribution Date on or prior to the
Optional Termination Date for the Adjustable Rate Certificates, 0.36% per annum
and, as of any Distribution Date after such Optional Termination Date, 0.72%
per annum.
Class AV-1 Pass-Through Rate: For the first Distribution Date, 5.54%
per annum. As of any Distribution Date thereafter, the least of (i) One-Month
LIBOR plus the Class AV-1 Margin, (ii) the Weighted Maximum Rate Cap and (iii)
the Available Funds Cap for such Distribution Date.
Class B-IO Certificates: Either or both of the Class BF-IO
Certificates and the Class BV-IO Certificates, as the context may require.
Class BF Applied Realized Loss Amount: As of any Distribution Date,
the sum of all Applied Realized Loss Amounts with respect to the Fixed Rate
Mortgage Loans which have been applied to the reduction of the Certificate
Principal Balance of the Class BF Certificates.
Class BF Certificate: Any Certificate designated as a "Class BF
Certificate" on the face thereof, in the form of Exhibit A-9 hereto,
representing the right to distributions as set forth herein.
Class BF Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class BF Certificates.
Class BF Current Interest: As of any Distribution Date, the interest
accrued on the Class BF Certificate Principal Balance during the related
Accrual Period at the Class BF Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class BF Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class BF Current Interest with respect to
prior Distribution Dates over (b) the amount actually distributed to the Class
BF Certificates with respect to interest and (ii) interest thereon (to the
extent permitted by applicable law) at the Class BF Pass-Through Rate for the
related Accrual Period.
Class BF Net Rate Carryover Amount: As of any Distribution Date, the
sum of (A) if on such Distribution Date the Pass-Through Rate for the Class BF
Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the amount
of interest the Class BF Certificates would otherwise be entitled to receive on
such Distribution Date had the Pass-Through Rate for that Class not been
determined based on the Fixed Net Rate Cap, over (ii) the amount of interest
payable on the Class BF Certificates at the Fixed Net Rate Cap for such
Distribution Date and (B) the Class BF Net Rate Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(h),
together with interest thereon at the Pass-Through Rate (without giving effect
to the Fixed Net Rate Cap).
Class BF Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, the lesser of (i) 8.50% per annum and (ii) the
Fixed Net Rate Cap and, on any Distribution Date after the Optional Termination
Date, the lesser of (i) 9.00% per annum and (ii) the Fixed Net Rate Cap.
Class BF Unpaid Realized Loss Amount: As of any Distribution Date,
the excess of (i) the Class BF Applied Realized Loss Amount over (ii) the sum
of all distributions in reduction of the Class BF Applied Realized Loss Amount
on all previous Distribution Dates.
Class BF-IO Certificates: Any Certificate designated as a "Class
BF-IO Certificate" on the face thereof, in the form of Exhibit A-10 hereto,
representing ownership of the Class T4-F10, Class T4-F11, Class T4-F12, Class
T4-F13, Class T4-F14 Interests, Class T4-F15, Class T4-F16, Class T4-F17 and
Class T4-F18.
Class BF-IO Distributable Amount: With respect to any Distribution
Date, the sum of the amounts distributable on the Class T4-F10, Class T4-F11,
Class T4-F12, Class T4-F13, Class T4-F14 Interests, Class T4-F14 Interests,
Class T4-F15, Class T4-F16, Class T4-F17 and Class T4-F18.
Class BV Applied Realized Loss Amount: As of any Distribution Date,
the sum of all Applied Realized Loss Amounts with respect to the Adjustable
Rate Mortgage Loans which have been applied to the reduction of the Certificate
Principal Balance of the Class BV Certificates.
Class BV Certificate: Any Certificate designated as a "Class BV
Certificate" on the face thereof, in the form of Exhibit A-14 hereto,
representing the right to distributions as set forth herein.
Class BV Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class BV Certificates.
Class BV Current Interest: As of any Distribution Date, the interest
accrued on the Class BV Certificate Principal Balance during the related
Accrual Period at the Class BV Pass-Through Rate plus any amount previously
distributed with respect to interest for such Class that is recovered as a
voidable preference by a trustee in bankruptcy.
Class BV Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class BV Current Interest with respect to
prior Distribution Dates (excluding any Class BV Interest Carryover Amount)
over (b) the amount actually distributed to the Class BV Certificates with
respect to interest and (ii) interest thereon (to the extent permitted by
applicable law) at the Class BV Pass-Through Rate for the related Accrual
Period.
Class BV Interest Carryover Amount: As of any Distribution Date, the
sum of (A) if on such Distribution Date the Pass-Through Rate for the Class BV
Certificates is based upon the Available Funds Cap, the excess of (i) the
amount of interest the Class BV Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
One-Month LIBOR and the applicable Class BV Margin for such Distribution Date,
up to the Weighted Maximum Rate Cap, over (ii) the amount of interest payable
on the Class BV Certificates at the Available Funds Cap for such Distribution
Date and (B) the Class BV Interest Carryover Amount for all previous
Distribution Dates not previously paid pursuant to Section 4.04(i), together
with interest thereon at a rate equal to the sum of One-Month LIBOR and the
applicable Class BV Margin for such Distribution Date.
Class BV Margin: For any Distribution Date on or prior to the
Optional Termination Date for the Adjustable Rate Certificates, 3.50% per annum
and, as of any Distribution Date after such Optional Termination Date, 5.25%
per annum.
Class BV Pass-Through Rate: For the first Distribution Date, 8.68%
per annum. As of any Distribution Date thereafter, the least of (i) One-Month
LIBOR plus the Class BV Margin, (ii) the Weighted Maximum Rate Cap and (iii)
the Available Funds Cap for such Distribution Date.
Class BV Unpaid Realized Loss Amount: As of any Distribution Date,
the excess of (i) the Class BV Applied Realized Loss Amount over (ii) the sum
of all distributions in reduction of the Class BV Applied Realized Loss Amounts
on all previous Distribution Dates.
Class BV-IO Certificates: Any Certificate designated as a "Class
BV-IO Certificate" on the face thereof, in the form of Exhibit A-15 hereto,
representing ownership of the Class T4-V5, Class T4-V6, Class T4-V7, and Class
T4-V8 Interests.
Class BV-IO Distributable Amount: With respect to any Distribution
Date, the aggregate of the amounts distributable on the Class T4-V5, Class
T4-V6, Class T4-V7, and Class T4-V8 Interests.
Class MF-1 Applied Realized Loss Amount: As of any Distribution Date,
the sum of all Applied Realized Loss Amounts with respect to the Fixed Rate
Mortgage Loans which have been applied to the reduction of the Certificate
Principal Balance of the Class MF-1 Certificates.
Class MF-1 Certificate: Any Certificate designated as a "Class MF-1
Certificate" on the face thereof, in the form of Exhibit A-7 hereto,
representing the right to distributions as set forth herein.
Class MF-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class MF-1
Certificates.
Class MF-1 Current Interest: As of any Distribution Date, the
interest accrued on the Class MF-1 Certificate Principal Balance during the
related Accrual Period at the Class MF-1 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class MF-1 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class MF-1 Current Interest with respect
to prior Distribution Dates over (b) the amount actually distributed to the
Class MF-1 Certificates with respect to interest and (ii) interest thereon (to
the extent permitted by applicable law) at the Class MF-1 Pass-Through Rate for
the related Accrual Period.
Class MF-1 Net Rate Carryover Amount: As of any Distribution Date,
the sum of (A) if on such Distribution Date the Pass-Through Rate for the Class
MF-1 Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class MF-1 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class MF-1 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class MF-1 Net Rate Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(h),
together with interest thereon at the Pass-Through Rate (without giving effect
to the Fixed Net Rate Cap).
Class MF-1 Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, the lesser of (i) 7.76% per annum and (ii) the
Fixed Net Rate Cap and, on any Distribution Date after the Optional Termination
Date, the lesser of (i) 8.26% per annum and (ii) the Fixed Net Rate Cap.
Class MF-1 Principal Distribution Amount: With respect to any
Distribution Date on or after the Fixed Rate Stepdown Date, 100% of the Fixed
Rate Principal Distribution Amount for such Distribution Date if the Fixed Rate
Class A Certificate Principal Balance has been reduced to zero and a Fixed Rate
Trigger Event has occurred and is continuing, or, if any of the Class AF-1,
Class AF-2, Class AF-3, Class AF-4, Class AF-5 or Class AF-6 Certificates are
still outstanding and as long as a Fixed Rate Trigger Event has not occurred
and is not continuing, the excess of (i) the sum of (A) the Fixed Rate Class A
Certificate Principal Balance (after taking into account distributions of the
Fixed Rate Class A Principal Distribution Amount on such Distribution Date) and
(B) the Class MF-1 Certificate Principal Balance immediately prior to such
Distribution Date over (ii) the lesser of (A) 80.00% of the Stated Principal
Balance of the Fixed Rate Mortgage Loans on the preceding Due Date and (B) the
Stated Principal Balance of the Fixed Rate Mortgage Loans on the preceding Due
Date less the OC Floor for the Fixed Rate Mortgage Loans.
Class MF-1 Unpaid Realized Loss Amount: As of any Distribution Date,
the excess of (i) the Class MF-1 Applied Realized Loss Amount over (ii) the sum
of all distributions in reduction of the Class MF-1 Applied Realized Loss
Amount on all previous Distribution Dates.
Class MF-2 Applied Realized Loss Amount: As of any Distribution Date,
the sum of all Applied Realized Loss Amounts with respect to the Fixed Rate
Mortgage Loans which have been applied to the reduction of the Certificate
Principal Balance of the Class MF-2 Certificates.
Class MF-2 Certificate: Any Certificate designated as a "Class MF-2
Certificate" on the face thereof, in the form of Exhibit A-8 hereto,
representing the right to distributions as set forth herein.
Class MF-2 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class MF-2
Certificates.
Class MF-2 Current Interest: As of any Distribution Date, the
interest accrued on the Class MF-2 Certificate Principal Balance during the
related Accrual Period at the Class MF-2 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class MF-2 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class MF-2 Current Interest with respect
to prior Distribution Dates over (b) the amount actually distributed to the
Class MF-2 Certificates with respect to interest and (ii) interest thereon (to
the extent permitted by applicable law) at the Class MF-2 Pass-Through Rate for
the related Accrual Period.
Class MF-2 Net Rate Carryover Amount: As of any Distribution Date,
the sum of (A) if on such Distribution Date the Pass-Through Rate for the Class
MF-2 Certificates is based upon the Fixed Net Rate Cap, the excess of (i) the
amount of interest the Class MF-2 Certificates would otherwise be entitled to
receive on such Distribution Date had the Pass-Through Rate for that Class not
been determined based on the Fixed Net Rate Cap, over (ii) the amount of
interest payable on the Class MF-2 Certificates at the Fixed Net Rate Cap for
such Distribution Date and (B) the Class MF-2 Net Rate Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(h),
together with interest thereon at the Pass-Through Rate (without giving effect
to the Fixed Net Rate Cap).
Class MF-2 Pass-Through Rate: On any Distribution Date on or prior to
the Optional Termination Date, the lesser of (i) 8.37% per annum and (ii) the
Fixed Net Rate Cap and, on any Distribution Date after the Optional Termination
Date, the lesser of (i) 8.87% per annum and (ii) the Fixed Net Rate Cap.
Class MF-2 Principal Distribution Amount: With respect to any
Distribution Date on or after the Fixed Rate Stepdown Date, 100% of the Fixed
Rate Principal Distribution Amount for such Distribution Date if the Fixed Rate
Class A Certificate Principal Balance and the Class MF-1 Certificate Principal
Balance have been reduced to zero and a Fixed Rate Trigger Event has occurred
and is continuing, or, if any of the Class AF-1, Class AF-2, Class AF-3, Class
AF-4, Class AF-5, Class AF-6 or Class MF-1 Certificates are still outstanding
and as long as a Fixed Rate Trigger Event has not occurred and is not
continuing, the excess of (i) the sum of (A) the Fixed Rate Class A Certificate
Principal Balance (after taking into account distributions of the Fixed Rate
Class A Principal Distribution Amount on such Distribution Date), (B) the Class
MF-1 Certificate Principal Balance (after taking into account distributions of
the Class MF-1 Principal Distribution Amount on such Distribution Date) and (C)
the Class MF-2 Certificate Principal Balance immediately prior to such
Distribution Date over (ii) the lesser of (A) 88.00% of the Stated Principal
Balance of the Fixed Rate Mortgage Loans on the preceding Due Date and (B) the
Stated Principal Balance of the Fixed Rate Mortgage Loans on the preceding Due
Date less the OC Floor for the Fixed Rate Mortgage Loans.
Class MF-2 Unpaid Realized Loss Amount: As of any Distribution Date,
the excess of (i) the Class MF-2 Applied Realized Loss Amount over (ii) the sum
of all distributions in reduction of the Class MF-2 Applied Realized Loss
Amount on all previous Distribution Dates.
Class MV-1 Applied Realized Loss Amount: As of any Distribution Date,
the sum of all Realized Losses with respect to the Adjustable Rate Mortgage
Loans which have been applied to the reduction of the Certificate Principal
Balance of the Class MV-1 Certificates.
Class MV-1 Certificate: Any Certificate designated as a "Class MV-1
Certificate" on the face thereof, in the form of Exhibit A-12 hereto,
representing the right to distributions as set forth herein.
Class MV-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class MV-1
Certificates.
Class MV-1 Current Interest: As of any Distribution Date, the
interest accrued on the Class MV Certificate Principal Balance during the
related Accrual Period at the Class MV Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class MV-1 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class MV-1 Current Interest with respect
to prior Distribution Dates (excluding any Class MV-1 Interest Carryover
Amount) over (b) the amount actually distributed to the Class MV-1 Certificates
with respect to interest and (ii) interest thereon (to the extent permitted by
applicable law) at the Class MV-1 Pass-Through Rate for the related Accrual
Period.
Class MV-1 Interest Carryover Amount: As of any Distribution Date,
the sum of (A) if on such Distribution Date the Pass-Through Rate for the Class
MV-1 Certificates is based upon the Available Funds Cap, the excess of (i) the
amount of interest the Class MV-1 Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
One-Month LIBOR and the applicable Class MV-1 Margin for such Distribution
Date, up to the Weighted Maximum Rate Cap, over (ii) the amount of interest
payable on the Class MV-1 Certificates at the Available Funds Cap for such
Distribution Date and (B) the Class MV-1 Interest Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(i),
together with interest thereon at a rate equal to the sum of One-Month LIBOR
and the applicable Class MV-1 Margin for such Distribution Date.
Class MV-1 Margin: As of any Distribution Date on or prior to the
Optional Termination Date for the Adjustable Rate Certificates, 0.65% per annum
and, as of any Distribution Date after such Optional Termination Date, 0.975%
per annum.
Class MV-1 Pass-Through Rate: For the first Distribution Date, 5.83%
per annum. As of any Distribution Date thereafter, the least of (i) One-Month
LIBOR plus the Class MV-1 Margin, (ii) the Weighted Maximum Rate Cap and (iii)
the Available Funds Cap for such Distribution Date.
Class MV-1 Principal Distribution Amount: With respect to any
Distribution Date on or after the Adjustable Rate Stepdown Date, 100% of the
Adjustable Rate Principal Distribution Amount for such Distribution Date if the
Adjustable Rate Class A Certificate Principal Balance has been reduced to zero
and an Adjustable Rate Trigger Event has occurred and is continuing, or, if any
of the Class AV-1 Certificates are still outstanding and as long as an
Adjustable Rate Trigger Event has not occurred and is not continuing, the
excess of (i) the sum of (A) the Adjustable Rate Class A Certificate Principal
Balance (after taking into account distributions of the Adjustable Rate Class A
Principal Distribution Amount on such Distribution Date) and (B) the Class MV-1
Certificate Principal Balance immediately prior to such Distribution Date over
(ii) the lesser of (A) 74.50% of the Stated Principal Balance of the Adjustable
Rate Mortgage Loans on the preceding Due Date and (B) the Stated Principal
Balance of the Adjustable Rate Mortgage Loans on the preceding Due Date less
the OC Floor for the Adjustable Rate Mortgage Loans.
Class MV-1 Unpaid Realized Loss Amount: As of any Distribution Date,
the excess of (i) the Class MV-1 Applied Realized Loss Amount over (ii) the sum
of all distributions in reduction of the Class MV-1 Applied Realized Loss
Amounts on all previous Distribution Dates.
Class MV-2 Applied Realized Loss Amount: As of any Distribution Date,
the sum of all Realized Losses with respect to the Adjustable Rate Mortgage
Loans which have been applied to the reduction of the Certificate Principal
Balance of the Class MV-2 Certificates.
Class MV-2 Certificate: Any Certificate designated as a "Class MV-2
Certificate" on the face thereof, in the form of Exhibit A-13 hereto,
representing the right to distributions as set forth herein.
Class MV-2 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class MV-2
Certificates.
Class MV-2 Current Interest: As of any Distribution Date, the
interest accrued on the Class MV-2 Certificate Principal Balance during the
related Accrual Period at the Class MV-2 Pass-Through Rate plus any amount
previously distributed with respect to interest for such Class that is
recovered as a voidable preference by a trustee in bankruptcy.
Class MV-2 Interest Carryforward Amount: As of any Distribution Date,
the sum of (i) the excess of (a) the Class MV-2 Current Interest with respect
to prior Distribution Dates (excluding any Class MV-2 Interest Carryover
Amount) over (b) the amount actually distributed to the Class MV-2 Certificates
with respect to interest and (ii) interest thereon (to the extent permitted by
applicable law) at the Class MV-2 Pass-Through Rate for the related Accrual
Period.
Class MV-2 Interest Carryover Amount: As of any Distribution Date,
the sum of (A) if on such Distribution Date the Pass-Through Rate for the Class
MV-2 Certificates is based upon the Available Funds Cap, the excess of (i) the
amount of interest the Class MV-2 Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
One-Month LIBOR and the applicable Class MV-2 Margin for such Distribution
Date, up to the Weighted Maximum Rate Cap, over (ii) the amount of interest
payable on the Class MV-2 Certificates at the Available Funds Cap for such
Distribution Date and (B) the Class MV-2 Interest Carryover Amount for all
previous Distribution Dates not previously paid pursuant to Section 4.04(i),
together with interest thereon at a rate equal to the sum of One-Month LIBOR
and the applicable Class MV-2 Margin for such Distribution Date.
Class MV-2 Margin: As of any Distribution Date on or prior to the
Optional Termination Date for the Adjustable Rate Certificates, 1.30% per annum
and, as of any Distribution Date after such Optional Termination Date, 1.95%
per annum.
Class MV-2 Pass-Through Rate: For the first Distribution Date, 6.476%
per annum. As of any Distribution Date thereafter, the least of (i) One-Month
LIBOR plus the Class MV-2 Margin, (ii) the Weighted Maximum Rate Cap and (iii)
the Available Funds Cap for such Distribution Date.
Class MV-2 Principal Distribution Amount: With respect to any
Distribution Date on or after the Adjustable Rate Stepdown Date, 100% of the
Adjustable Rate Principal Distribution Amount for such Distribution Date if the
Adjustable Rate Class A Certificate Principal Balance and the Class MV-1
Certificate Principal Balance have been reduced to zero and an Adjustable Rate
Trigger Event has occurred and is continuing, or, if any of the Class AV-1 or
Class MV-1 Certificates are still outstanding and as long as an Adjustable Rate
Trigger Event has not occurred and is not continuing, the excess of (i) the sum
of (A) the Adjustable Rate Class A Certificate Principal Balance (after taking
into account distributions of the Adjustable Rate Class A Principal
Distribution Amount on such Distribution Date), (B) the Class MV-1 Certificate
Principal Balance (after taking into account distributions of the Class MV-1
Principal Distribution Amount on such Distribution Date) and (C) the Class MV-2
Certificate Principal Balance immediately prior to such Distribution Date over
(ii) the lesser of (A) 83.50% of the Stated Principal Balance of the Adjustable
Rate Mortgage Loans on the preceding Due Date and (B) the Stated Principal
Balance of the Adjustable Rate Mortgage Loans on the preceding Due Date less
the OC Floor for the Adjustable Rate Mortgage Loans.
Class MV-2 Unpaid Realized Loss Amount: As of any Distribution Date,
the excess of (i) the Class MV-2 Applied Realized Loss Amount over (ii) the sum
of all distributions in reduction of the Class MV-2 Applied Realized Loss
Amounts on all previous Distribution Dates.
Class R Certificate: Any one of the Class R Certificates executed and
authenticated by the Trustee in substantially the form set forth in Exhibits D
and E hereto, and evidencing ownership of the Class R-1F, R-1V, Class R-2,
Class R-3, and Class R-4 Interests.
Closing Date: July 30, 1999.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Combined Loan-to-Value Ratio: The fraction, expressed as a
percentage, the numerator of which is the sum of (x) the original principal
balance of the related Mortgage Loan and (y) the outstanding principal balance
at the date of origination of the Mortgage Loan of any senior mortgage loan, or
in the case of an open-ended senior mortgage loan (if any), the maximum
available line of credit with respect to such mortgage loan, regardless of any
lesser amount actually outstanding at the date of origination of the Mortgage
Loan, and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Compensating Interest: With respect to any Mortgage Loan, an amount
equal to one-half of the Servicing Fee, to be applied to the interest portion
of a Prepayment Interest Shortfall on such Mortgage Loan pursuant to Section
4.02 hereof.
Corresponding Certificate: With respect to each REMIC 4 Regular
Interest, the Certificate that evidences ownership of that REMIC 4 Regular
Interest.
Corporate Trust Office: The designated office of the Trustee in the
State of New York where at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at 101 Barclay Street, 12E, New
York, New York 10286 (Attention: Corporate Trust MBS Administration),
telephone: (212) 815-2793, facsimile: (212) 815-5309.
Cut-off Date: July 1, 1999.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the calendar day
immediately preceding the Cut-off Date after application of all payments of
principal due prior to the Cut-off Date, whether or not received, and all
Principal Prepayments received prior to the Cut-Off Date, but without giving
effect to any installments of principal received in respect of Due Dates on and
after the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan that became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any other reduction that results in a permanent forgiveness of
principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding indebtedness under such Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any
Scheduled Payment that results in a permanent forgiveness of principal, which
valuation or reduction results from an order of such court that is final and
non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificates: As defined in Section 5.06.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on the
schedule of Mortgage Loans hereto set forth on Exhibit F-2 hereof for which all
or a portion of a related Mortgage File is not delivered to Trustee on the
Closing Date. The number of Delay Delivery Mortgage Loans shall not exceed 50%
of the aggregate number of Mortgage Loans as of the Closing Date.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by
a Replacement Mortgage Loan.
Delinquent: A Mortgage Loan is "delinquent" if any payment due
thereon is not made pursuant to the terms of such Mortgage Loan by the close
of business on the day such payment is scheduled to be due. A Mortgage Loan is
"30 days delinquent" if such payment has not been received by the close of
business on the corresponding day of the month immediately succeeding the
month in which such payment was due, or, if there is no such corresponding day
(e.g., as when a 30-day month follows a 31-day month in which a payment was
due on the 31st day of such month), then on the last day of such immediately
succeeding month. Similarly for "60 days delinquent," "90 days delinquent" and
so on.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Principal Balance of this Certificate".
Depositor: Bear Stearns Asset Backed Securities, Inc., a Delaware
corporation, or its successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company ("DTC"), the nominee of which is Cede & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York.
Depository Agreement: With respect to the Class of Book-Entry
Certificates, the agreement among the Depositor, the Trustee and the initial
Depository, dated as of the Closing Date, substantially in the form of Exhibit
O.
Depository Participant: A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to any Distribution Date, the 15th
day of the month of such Distribution Date or, if such 15th day is not a
Business Day, the immediately preceding Business Day.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New York,
in trust for registered holders of Bear Stearns Asset Backed Securities, Inc.,
Asset-Backed Certificates, Series 1999-1". Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 1:00
p.m. Pacific time on the Business Day immediately preceding such Distribution
Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business
Day, the next succeeding Business Day, commencing in June 1999.
Due Date: With respect to any Distribution Date, the first day of the
month in which the related Distribution Date occurs.
Due Period: With respect to any Distribution Date, the period
beginning on the second day of the calendar month preceding the calendar month
in which such Distribution Date occurs (or, in the case of the first
Distribution Date, beginning on the Cut-off Date) and ending on the Due Date in
the month in which such Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company, the
long-term unsecured debt obligations and short-term unsecured debt obligations
of which (or, in the case of a depository institution or trust company that is
the principal subsidiary of a holding company, the debt obligations of such
holding company, so long as Moody's is not a Rating Agency) are rated by each
Rating Agency (or, if Fitch does not provide such a rating, by S&P in lieu of
Fitch) in one of its two highest long-term and its highest short-term rating
categories respectively, at the time any amounts are held on deposit therein,
or (ii) an account or accounts in a depository institution or trust company in
which such accounts are insured by the FDIC (to the limits established by the
FDIC) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to
each Rating Agency, the Certificateholders have a claim with respect to the
funds in such account or a perfected first priority security interest against
any collateral (which shall be limited to Permitted Investments) securing such
funds that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which such account is maintained, or
(iii) a trust account or accounts maintained with the corporate trust
department of a federal or state chartered depository institution or trust
company having capital and surplus of not less than $50,000,000, acting in its
fiduciary capacity or (iv) any other account acceptable to the Rating Agencies.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificate: Each of the Class MF-1, Class MF-2,
Class BF, Class MV-1, Class MV-2, Class BV, Class B-IO and Class R
Certificates.
Event of Default: As defined in Section 7.01 hereof.
Excess Proceeds: With respect to any Liquidated Loan, any Liquidation
Proceeds that are in excess of the sum of (i) the unpaid principal balance of
such Liquidated Loan as of the date of such liquidation plus (ii) interest at
the Mortgage Rate from the Due Date as to which interest was last paid or
advanced to Certificateholders (and not reimbursed to the Master Servicer) up
to the Due Date in the month in which such Liquidation Proceeds are required to
be distributed on the Stated Principal Balance of such Liquidated Loan
outstanding during each Due Period as to which such interest was not paid or
advanced.
Extra Master Servicing Fee: The Extra Master Servicing Fee payable
pursuant to Sections 4.07 hereof.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
Fitch: Fitch IBCA, Inc.
5/25 Mortgage Loan: A Mortgage Loan having a Mortgage Rate that is
fixed for 60 months after origination thereof before such Mortgage Rate becomes
subject to adjustment.
Fixed Net Rate: The weighted average Net Mortgage Rate for Fixed Rate
Mortgage Loans. The Fixed Net Rate in respect of the first Distribution Date
shall be 9.209%.
Fixed Net Rate Cap: As of any Distribution Date with respect to the
Fixed Rate Certificates, a per annum rate equal to the weighted average
Mortgage Rate on the Fixed Rate Mortgage Loans less the related Servicing Fee
for such Distribution Date.
Fixed Net Rate Carryover: With respect to any Distribution Date, an
amount equal to the sum of (i) the Class AF-1 Net Rate Carryover Amount for
such Distribution Date (if any), (ii) the Class AF-2 Net Rate Carryover Amount
for such Distribution Date (if any), (iii) the Class AF-3 Net Rate Carryover
Amount for such Distribution Date (if any), (iv) the Class AF-4 Net Rate
Carryover Amount for such Distribution Date (if any), (v) the Class AF-5 Net
Rate Carryover Amount for such Distribution Date (if any), (vi) the Class AF-6
Net Rate Carryover Amount for such Distribution Date (if any); (vii) the Class
MF-1 Net Rate Carryover Amount for such Distribution Date (if any), (viii) the
Class MF-2 Net Rate Carryover Amount for such Distribution Date (if any) and
(ix) the Class BF Net Rate Carryover Amount for such Distribution Date (if
any); provided that when the term Fixed Net Rate Carryover is used with respect
to one Class of Fixed Rate Certificates, it shall mean such carryover amount
listed in clauses (i), (ii), (iii), (iv), (v), (vi) or (vii) as applicable,
with the same Class designation.
Fixed Rate Carryover Reserve Fund: The separate Eligible Account
created and initially maintained by the Trustee pursuant to Section 4.08 in the
name of the Trustee for the benefit of the Fixed Rate Certificateholders and
designated "The Bank of New York in trust for registered holders of Bear
Stearns Asset Backed Securities, Inc., Asset-Backed Certificates, Series
1999-1". Funds in the Fixed Rate Carryover Reserve Fund shall be held in trust
for the Fixed Rate Certificateholders for the uses and purposes set forth in
this Agreement.
Fixed Rate Certificateholder: A holder of a Fixed Rate Certificate.
Fixed Rate Certificate Principal Balance: The sum of the Class AF-1
Certificate Principal Balance, the Class AF-2 Certificate Principal Balance,
the Class AF-3 Certificate Principal Balance, the Class AF-4 Certificate
Principal Balance, the Class AF-5 Certificate Principal Balance, the Class AF-6
Certificate Principal Balance, the Class MF-1 Certificate Principal Balance,
the Class MF-2 Certificate Principal Balance and the Class BF Certificate
Principal Balances.
Fixed Rate Certificates: Any of the Class AF-1, Class AF-2, Class
AF-3, Class AF-4, Class AF-5, Class AF-6, Class MF-1, Class MF-2, Class BF
and/or Class BF-IO Certificates.
Fixed Rate Class A Certificate Principal Balance: The sum of the
Class AF-1 Certificate Principal Balance, the Class AF-2 Certificate Principal
Balance, the Class AF-3 Certificate Principal Balance, the Class AF-4
Certificate Principal Balance, the Class AF-5 Certificate Principal Balance and
the Class AF-6 Certificate Principal Balance.
Fixed Rate Class A Certificates: Any of the Class AF-1, Class AF-2,
Class AF-3, Class AF-4, Class AF-5 and/or Class AF-6 Certificates.
Fixed Rate Class A Current Interest: Any one or more of the following
(as the context requires): Class AF-1 Current Interest, Class AF-2 Current
Interest, Class AF-3 Current Interest, Class AF-4 Current Interest, Class AF-5
Current Interest, and/or Class AF-6 Current Interest.
Fixed Rate Class A Interest Carryforward Amount: Any one or more of
the following (as the context requires): Class AF-1 Interest Carryforward
Amount, Class AF-2 Interest Carryforward Amount, Class AF-3 Interest
Carryforward Amount, Class AF-4 Interest Carryforward Amount, Class AF-5
Interest Carryforward Amount and/or Class AF-6 Interest Carryforward Amount.
Fixed Rate Class A Principal Distribution Amount: With respect to (i)
any Distribution Date prior to the Fixed Rate Stepdown Date, or any
Distribution Date on which a Fixed Rate Trigger Event has occurred, 100% of the
Fixed Rate Principal Distribution Amount for such Distribution Date and (ii)
any Distribution Date on or after the Fixed Rate Stepdown Date where a Fixed
Rate Trigger Event has not occurred, the excess of (A) the Fixed Rate Class A
Certificate Principal Balance immediately prior to such Distribution Date over
(B) the lesser of (I) 69.50% of the Stated Principal Balance of the Fixed Rate
Mortgage Loans on the preceding Due Date and (II) the Stated Principal Balance
of the Fixed Rate Mortgage Loans on the preceding Due Date less the OC Floor
for the Fixed Rate Mortgage Loans.
Fixed Rate Class B Principal Distribution Amount: With respect to any
Distribution Date on or after the Fixed Rate Stepdown Date and as long as a
Fixed Rate Trigger Event has not occurred and continuing, the excess of (i) the
sum of (A) the Fixed Rate Class A Certificate Principal Balance (after taking
into account distribution of the Fixed Rate Class A Principal Distribution
Amount on such Distribution Date), (B) the Class MF-1 Certificate Principal
Balance (after taking into account distribution of the Class MF-1 Distribution
Amount on such Distribution Date), (C) the Class MF-2 Certificate Principal
Balance (after taking into account distribution of the Class MF-2 Principal
Distribution Amount for such Distribution Date), and (D) the Class BF
Certificate Principal Balance immediately prior to such Distribution Date over
(ii) the lesser of (A) 95.50% of the Stated Principal Balance of the Fixed Rate
Mortgage Loans on the preceding Due Date and (B) the Stated Principal Balance
of the Fixed Rate Mortgage Loans on the preceding Due Date less the OC Floor
for the Fixed Rate Mortgage Loans; provided that after the Fixed Rate Class A
Certificate Principal Balance, the Class MF-1 Certificate Principal Balance and
the Class MF-2 Certificate Principal Balance has been reduced to zero, the
Fixed Rate Class B Principal Distribution Amount for such Distribution Date
will equal 100% of the Fixed Rate Principal Distribution Amount for such
Distribution Date.
Fixed Rate Excess Cashflow: With respect to any Distribution Date,
the aggregate remaining amounts constituting Fixed Rate Excess Cashflow for
such Distribution Date pursuant to Sections 4.04(a)(v) and 4.04(c)(v).
Fixed Rate Extra Principal Distribution Amount: With respect to any
Distribution Date, the lesser of (i) the excess, if any, of the Fixed Rate
Specified Overcollateralization Amount for such Distribution Date over the
Fixed Rate Overcollateralization Amount for such Distribution Date (after
giving effect to distributions of principal on the Fixed Rate Certificates
other than any Fixed Rate Extra Principal Distribution Amount) and (ii) the sum
of the Fixed Rate Excess Cashflow and Adjustable Rate Remainder Excess Cashflow
for such Distribution Date available therefor in the priority set forth in
Section 4.04.
Fixed Rate Interest Funds: With respect to Fixed Rate Mortgage Loans
and any Master Servicer Advance Date, the sum, without duplication, of (i) all
scheduled interest collected during the related Due Period with respect to the
Fixed Rate Mortgage Loans less the Servicing Fee, (ii) all Advances relating to
interest with respect to the Fixed Rate Mortgage Loans, (iii) all Compensating
Interest with respect to the Fixed Rate Mortgage Loans and (iv) Liquidation
Proceeds with respect to the Fixed Rate Mortgage Loans collected during the
related Due Period (to the extent such Liquidation Proceeds relate to interest)
less all Nonrecoverable Advances relating to interest reimbursed during the
related Due Period.
Fixed Rate Mortgage Loans: The group of Mortgage Loans identified in
the related Mortgage Loan Schedule as having a Mortgage Rate which is fixed for
the life of the related Mortgage, including any Mortgage Loans delivered in
replacement thereof.
Fixed Rate Overcollateralization Amount: With respect to any
Distribution Date, the excess, if any, of the Stated Principal Balance of the
Fixed Rate Mortgage Loans as of the preceding Due Date over the Certificate
Principal Balances of all Fixed Rate Certificates on such date (after taking
into account the payment of principal other than any Fixed Rate Extra
Principal Distribution Amount, on such Certificates on such Distribution
Date).
Fixed Rate Principal Distribution Amount: With respect to each
Distribution Date, the sum of (i) the Fixed Rate Principal Funds for such
Distribution Date and (ii) any Fixed Rate Extra Principal Distribution Amount
for such Distribution Date.
Fixed Rate Principal Funds: With respect to the Fixed Rate Mortgage
Loans, the sum, without duplication, of (i) the scheduled principal collected
during the related Due Period or Advanced on or before the related Master
Servicer Advance Date, (ii) prepayments collected during the related Prepayment
Period, (iii) the Stated Principal Balance of each Fixed Rate Mortgage Loan
that was repurchased by the Seller or the Master Servicer, (iv) the aggregate
of all Substitution Adjustment Amounts for the related Determination Date in
connection with the substitution of Fixed Rate Mortgage Loans pursuant to
Section 2.03(c) and (v) all Liquidation Proceeds collected during the related
Due Period (to the extent such Liquidation Proceeds relate to principal) less
all Nonrecoverable Advances relating to principal reimbursed during the related
Due Period.
Fixed Rate Remainder Excess Cashflow: With respect to any
Distribution Date, the Fixed Rate Excess Cashflow for such Distribution Date
remaining after the applications set forth in Section 4.04(f)(i) through (vii).
Fixed Rate Specified Overcollateralization Amount: Prior to the Fixed
Rate Stepdown Date, 2.25% of the Stated Principal Balance of the Fixed Rate
Mortgage Loans as of the Cut-off Date, and on and after the Fixed Rate Stepdown
Date, 4.50% of the Stated Principal Balance of the Fixed Rate Mortgage Loans as
of the preceding Due Date, subject to a minimum amount equal to the applicable
OC Floor; provided that, if on any Distribution Date a Fixed Rate Trigger Event
has occurred, the Fixed Rate Specified Overcollateralization Amount shall not
be reduced to the applicable percentage of the then current Stated Principal
Balance of the Fixed Rate Mortgage Loans until the Distribution Date on which a
Fixed Rate Trigger Event no longer exists.
Fixed Rate Standard Rate: The lesser of 8.50% and the Fixed Net Rate.
Fixed Rate Stepdown Date: With respect to the Fixed Rate
Certificates, the later to occur of (i) the Distribution Date in August 2002 or
(ii) the first Distribution Date on which the Fixed Rate Class A Certificate
Principal Balance is less than or equal to 69.50% of the Stated Principal
Balances of the Fixed Rate Mortgage Loans as of the preceding Due Date.
Fixed Rate Subordinated Certificates: The Class MF-1, MF-2 and Class
BF Certificates.
Fixed Rate Trigger Event: With respect to any Distribution Date after
the Fixed Rate Stepdown Date, (1) the product of (i) two times (ii) the
quotient of (A) the Stated Principal Balance of all Fixed Rate Mortgage Loans
60 or more days delinquent (including Fixed Rate Mortgage Loans in foreclosure
and REO Properties) and (B) the Stated Principal Balance of the Fixed Rate
Mortgage Loans as of the preceding Master Servicer Advance Date (2) equals or
exceeds the Required Percentage.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Gross Margin: The percentage set forth in the related Mortgage Note
for the Adjustable Rate Mortgage Loans to be added to the Index for use in
determining the Mortgage Rate on each Adjustment Date, and which is set forth
in the Mortgage Loan Schedule for the Adjustable Rate Mortgage Loans.
Index: As to any Adjustable Rate Mortgage Loan on any Adjustment Date
related thereto, the index for the adjustment of the Mortgage Rate set forth as
such in the related Mortgage Note, such index in general being either (i) the
average of the London interbank offered rates for six-month U.S. dollar
deposits in the London market, as set forth in The Wall Street Journal, or, if
the Index ceases to be published in The Wall Street Journal or becomes
unavailable for any reason, then the Index shall be a new index selected by the
Trustee, as holder of the Mortgage Note, based on comparable information or
(ii) is the weekly average yield on United States Treasury securities adjusted
to a constant maturity of one year, as made available by the Board of Governors
of the Federal Reserve System, in the case of both (i) and (ii) above as most
recently announced as of a date 45 days prior to such Adjustment Date. The
Master Servicer hereby agrees that should the Index become unavailable, the
Master Servicer, on behalf of the Trustee, will select a new index that is
based upon comparable information.
Initial Adjustment Date: As to any Adjustable Rate Mortgage Loan, the
first Adjustment Date following the origination of such Mortgage Loan.
Initial Certificate Account Deposit: An amount equal to the aggregate
of all amounts in respect of (i) principal of the Mortgage Loans due on or
after the Cut-off Date and received by the Master Servicer before the Closing
Date and not applied in computing the Cut-off Date Principal Balance thereof
and (ii) interest on the Mortgage Loans due on and after the Cut-off Date and
received by the Master Servicer before the Closing Date.
Initial Certificate Principal Balance: With respect to any
Certificate, the Certificate Principal Balance of such Certificate or any
predecessor Certificate on the Closing Date.
Initial Mortgage Rate: As to each Mortgage Loan, the Mortgage Rate in
effect prior to the Initial Adjustment Date.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect with respect to such Mortgage Loan, including any replacement policy
or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Insurance Policy or any other insurance policy covering a
Mortgage Loan, to the extent such proceeds are payable to the mortgagee under
the Mortgage, the Master Servicer or the trustee under the deed of trust and
are not applied to the restoration of the related Mortgaged Property or
released to the Mortgagor in accordance with the procedures that the Master
Servicer would follow in servicing mortgage loans held for its own account, in
each case other than any amount included in such Insurance Proceeds in respect
of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Determination Date: With respect to the Adjustable Rate
Certificates for the first Accrual Period, July 28, 1999. With respect to the
Adjustable Rate Certificates and any Accrual Period thereafter, the second
LIBOR Business Day preceding the commencement of such Accrual Period.
Interest Rate Cap Agreement: The interest rate cap contract referred
to in the last paragraph of Section 8.11 and all related provisions of this
Agreement.
Latest Possible Maturity Date: The Distribution Date following the
third anniversary of the scheduled maturity date of the Mortgage Loan in the
Trust Fund having the latest scheduled maturity date as of the Cut-off Date.
LIBOR Business Day: Any day on which banks in the City of London,
England and New York City, U.S.A. are open and conducting transactions in
foreign currency and exchange.
Liquidated Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan that has been liquidated through deed-in-lieu of foreclosure,
foreclosure sale, trustee's sale or other realization as provided by applicable
law governing the real property subject to the related Mortgage and any
security agreements and as to which the Master Servicer has certified (in
accordance with Section 3.12) in the related Prepayment Period that it has
received all amounts it expects to receive in connection with such liquidation.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received
in connection with the partial or complete liquidation of Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property,
less the sum of related unreimbursed Advances, Servicing Fees and Servicing
Advances.
Loan Group: Either of the Fixed Rate Mortgage Loans or the Adjustable
Rate Mortgage Loans.
Loan-to-Value Ratio: The fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Mortgage
Loan and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Master Servicer Advance Date: As to any Distribution Date, 1:00 p.m.
Pacific time on the Business Day immediately preceding such Distribution Date.
Master Servicer: Countrywide Home Loans, Inc., a New York
corporation, and its successors and assigns, in its capacity as master servicer
hereunder.
Maximum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, the maximum rate of interest set forth as such in the related Mortgage
Note.
Minimum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, the minimum rate of interest set forth as such in the related Mortgage
Note.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.05.
Moody's: Moody's Investors Service, Inc.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest, or creating a second lien
on or second priority ownership interest, as applicable, in an estate in fee
simple in real property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the Fixed Rate Mortgage Loans and Adjustable
Rate Mortgage Loans transferred and assigned to the Trustee pursuant to the
provisions hereof as from time to time are held as a part of the Trust Fund
(including any REO Property), the mortgage loans so held being identified in
the Mortgage Loan Schedule, notwithstanding foreclosure or other acquisition of
title of the related Mortgaged Property. Any mortgage loan that was intended by
the parties hereto to be transferred to the Trust Fund as indicated by such
Mortgage Loan Schedule which is in fact not so transferred for any reason
including, without limitation, a breach of the representation contained in
Section 2.03(b)(v) hereof, shall continue to be a Mortgage Loan hereunder until
the Purchase Price with respect thereto has been paid to the Trust Fund.
Mortgage Loan Repurchase Price: The price, calculated as set forth in
Section 9.01, to be paid in connection with the repurchase of the Mortgage
Loans pursuant to Section 9.01.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the deletion of Deleted Mortgage
Loans and the addition of Replacement Mortgage Loans pursuant to the provisions
of this Agreement) transferred to the Trustee as part of the Trust Fund and
from time to time subject to this Agreement, attached hereto as Exhibit F-1,
setting forth the following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) [Reserved];
(iii) the Appraised Value;
(iv) the Initial Mortgage Rate;
(v) the maturity date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the first payment date of the Mortgage Loan;
(ix) the Scheduled Payment in effect as of the Cut-off Date;
(x) the Loan-to-Value Ratio or Combined Loan-to-Value Ratio, as
applicable, at origination;
(xi) a code indicating whether the residential dwelling at the time of
origination was represented to be owner-occupied;
(xii) a code indicating whether the residential dwelling is either (a)
a detached single family dwelling (b) a condominium unit or (c) a two-
to four-unit residential property;
(xiii) with respect to each Adjustable Rate Mortgage Loan;
(a) the frequency of each Adjustment Date;
(b) the next Adjustment Date;
(c) the Maximum Mortgage Rate;
(d) the Minimum Mortgage Rate;
(e) the Mortgage Rate as of the Cut-off Date;
(f) the related Periodic Rate Cap;
(g) the Gross Margin; and
(h) the purpose of the Mortgage Loan.
Such schedule shall also set forth the total of the amounts described under
(vii) above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time.
Mortgaged Property: The underlying property securing a Mortgage Loan.
Mortgagor: The obligors on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date and
Certificate Group, a fraction, expressed as a percentage, the numerator of
which is equal to the excess of (x) the aggregate Stated Principal Balance of
the then outstanding Mortgage Loans (after giving effect to distributions of
principal of the Certificates on such Distribution Date) in the related Loan
Group times the related Net Rate with respect to such Loan Group over (y) the
sum of the Interest Distribution Amount for such Distribution Date and
Certificate Group, and the denominator of which is an amount equal to (1) the
aggregate Stated Principal Balance (after giving effect to distributions of
principal of the Certificates on such Distribution Date) of the then
outstanding Mortgage Loans in the related Loan Group multiplied by (2) the
actual number of days elapsed in the related Interest Accrual Period divided by
360.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not or, in the case of a current delinquency, would
not, be ultimately recoverable by the Master Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
OC Floor: : For (i) the Adjustable Rate Mortgage Loans, 0.50% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date and (ii) the Fixed Rate Mortgage Loans, 0.50% of the Stated
Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off Date.
Officer's Certificate: A certificate (i) signed by the Chairman of
the Board, the Vice Chairman of the Board, the President, a Vice President
(however denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one of the assistant treasurers or assistant secretaries of the
Depositor or the Master Servicer (or any other officer customarily performing
functions similar to those performed by any of the above designated officers
and also to whom, with respect to a particular matter, such matter is referred
because of such officer's knowledge of and familiarity with a particular
subject) or (ii), if provided for in this Agreement, signed by a Servicing
Officer, as the case may be, and delivered to the Depositor, the Seller and the
Trustee, as the case may be, as required by this Agreement.
One-Month LIBOR: With respect to any Accrual Period, the rate
determined by the Trustee on the related Interest Determination Date on the
basis of the rate for U.S. dollar deposits for one month that appears on
Telerate Screen Page 3750 as of 11:00 a.m. (London time) on such Interest
Determination Date; provided that the parties hereto acknowledge that One-Month
LIBOR calculated for the first Accrual Period shall equal 5.18% per annum. If
such rate does not appear on such page (or such other page as may replace that
page on that service, or if such service is no longer offered, such other
service for displaying One-Month LIBOR or comparable rates as may be reasonably
selected by the Trustee), One-Month LIBOR for the applicable Accrual Period
will be the Reference Bank Rate. If no such quotations can be obtained by the
Trustee and no Reference Bank Rate is available, One-Month LIBOR will be
One-Month LIBOR applicable to the preceding Accrual Period.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Master Servicer, reasonably acceptable to each
addressee of such opinion; provided that with respect to Section 6.04 or 10.01,
or the interpretation or application of the REMIC Provisions, such counsel must
(i) in fact be independent of the Depositor and the Master Servicer, (ii) not
have any direct financial interest in the Depositor or the Master Servicer or
in any affiliate of either, and (iii) not be connected with the Depositor or
the Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Optional Termination: The termination of either Loan Group created
hereunder pursuant to the purchase of the related Mortgage Loans pursuant to
the last sentence of Section 9.01 hereof.
Optional Termination Date: With respect to either Loan Group, the
Distribution Date on which the Stated Principal Balance of the Mortgage Loans
in such Loan Group is equal to or less than 10% of the Stated Principal Balance
of the Mortgage Loans in such Loan Group as of the Cut-off Date.
Original Mortgage Loan: The mortgage loan refinanced in connection
with the origination of a Refinancing Mortgage Loan.
Original Value: The value of the property underlying a Mortgage Loan
based, in the case of the purchase of the underlying Mortgaged Property, on the
lower of an appraisal satisfactory to the Master Servicer or the sales price of
such property or, in the case of a refinancing, on an appraisal satisfactory to
the Master Servicer.
OTS: The Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Distribution Date, a Mortgage
Loan with a Stated Principal Balance greater than zero that was not the subject
of a Principal Prepayment in full, and that did not become a Liquidated Loan,
prior to the end of the related Prepayment Period.
Ownership Interest: As to any Certificate, any ownership interest in
such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate: With respect to the Class AF-1 Certificates, the
Class AF-1 Pass-Through Rate; with respect to the Class AF-2 Certificates, the
Class AF-2 Pass-Through Rate; with respect to the Class AF-3 Certificates, the
Class AF-3 Pass-Through Rate; with respect to the Class AF-4 Certificates, the
Class AF-4 Pass-Through Rate; with respect to the Class AF-5 Certificates, the
Class AF-5 Pass-Through Rate; with respect to the Class AF-6 Certificates, the
Class AF-6 Pass-Through Rate; with respect to the Class AV-1 Certificates, the
Class AV-1 Pass-Through Rate; with respect to the Class MF-1 Certificates, the
Class MF-1 Pass-Through Rate; with respect to the Class MF-2 Certificates, the
Class MF-2 Pass-Through Rate; with respect to the Class MV-1 Certificates, the
Class MV-1 Pass-Through Rate; with respect to the Class MV-2 Certificates, the
Class MV-2 Pass-Through Rate; with respect to the Class BF Certificates, the
Class BF Pass-Through Rate; and with respect to the Class BV Certificates, the
Class BV Pass-Through Rate.
Percentage Interest: With respect to:
(i) any Class, the percentage interest in the undivided
beneficial ownership interest in the related Certificate Group
evidenced by such Class which shall be equal to the Class Certificate
Principal Balance of such Class divided by the Class Principal
Balance of all Classes in such Certificate Group; and
(ii) any Certificate, the Percentage Interest evidenced thereby
of the related Class shall equal the percentage obtained by dividing
the Denomination of such Certificate by the aggregate of the
Denominations of all Certificates of such Class.
Periodic Rate Cap: As to each Adjustable Rate Mortgage Loan and the
related Mortgage Note, the provision therein that limits permissible increases
and decreases in the Mortgage Rate on any Adjustment Date to not more than one
and one-half percentage points, except that the Initial Adjustment Dates for
certain of the 2/28 Mortgage Loans, 3/27 Mortgage Loans and 5/25 Mortgage Loans
are subject to a provision that limits permissible increases and decreases in
the Mortgage Rates as provided in the related Mortgage Notes.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and credit of
the United States;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency (or, if Fitch
does not provide such a rating, by S&P in lieu of Fitch), or such
lower rating as will not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by each Rating Agency;
(iii) [Reserved];
(iv) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each Rating
Agency (or, if Fitch does not provide such a rating, by S&P in lieu
of Fitch), or such lower rating as will not result in the downgrading
or withdrawal of the ratings then assigned to the Certificates by
each Rating Agency;
(v) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any
state thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial paper
and/or long term unsecured debt obligations of such depository
institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial
paper or long-term unsecured debt obligations of such holding
company, but only if Moody's is not a Rating Agency) are then rated
one of the two highest long-term and the highest short-term ratings
of each such Rating Agency for such securities (or, if Fitch does not
provide such a rating, by S&P in lieu of Fitch), or such lower
ratings as will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by any Rating Agency;
(vi) demand or time deposits or certificates of deposit issued
by any bank or trust company or savings institution to the extent
that such deposits are fully insured by the FDIC;
(vii) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the
issuance of such agreements, such terms and conditions as will not
result in the downgrading or withdrawal of the rating then assigned
to the Certificates by any such Rating Agency;
(viii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (v) above;
(ix) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face
amount thereof) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any
state thereof which, at the time of such investment, have one of the
two highest long term ratings of each Rating Agency (except (x) if
the Rating Agency is Moody's, such rating shall be the highest
commercial paper rating of Moody's for any such securities any (y) if
Fitch does not provide such a rating, of S&P in lieu of Fitch), or
such lower rating as will not result in the downgrading or withdrawal
of the rating then assigned to the Certificates by any Rating Agency,
as evidenced by a signed writing delivered by each Rating Agency;
(x) interests in any money market fund which at the date of
acquisition of the interests in such fund and throughout the time
such interests are held in such fund has the highest applicable long
term rating by each Rating Agency (or, if Fitch does not provide such
a rating, by S&P in lieu of Fitch) or such lower rating as will not
result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by each Rating Agency;
(xi) short term investment funds sponsored by any trust company
or national banking association incorporated under the laws of the
United States or any state thereof which on the date of acquisition
has been rated by each Rating Agency (or, if Fitch does not provide
such a rating, by S&P in lieu of Fitch) in their respective highest
applicable rating category or such lower rating as will not result in
the downgrading or withdrawal of the ratings then assigned to the
Certificates by each Rating Agency; and
(xii) such other investments having a specified stated maturity
and bearing interest or sold at a discount acceptable to each Rating
Agency as will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by any Rating Agency, as
evidenced by a signed writing delivered by each Rating Agency;
provided, that no such instrument shall be a Permitted Investment if such
instrument (i) evidences the right to receive interest only payments with
respect to the obligations underlying such instrument, (ii) is purchased at a
premium or (iii) is purchased at a deep discount; provided further that no such
instrument shall be a Permitted Investment (A) if such instrument evidences
principal and interest payments derived from obligations underlying such
instrument and the interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (B) if it may be redeemed at a price below the
purchase price (the foregoing clause (B) not to apply to investments in units
of money market funds pursuant to clause (vii) above); provided further that no
amount beneficially owned by any REMIC (including, without limitation, any
amounts collected by the Master Servicer but not yet deposited in the
Certificate Account) may be invested in investments (other than money market
funds) treated as equity interests for Federal income tax purposes, unless the
Master Servicer shall receive an Opinion of Counsel, at the expense of Master
Servicer, to the effect that such investment will not adversely affect the
status of any such REMIC as a REMIC under the Code or result in imposition of a
tax on any such REMIC. Permitted Investments that are subject to prepayment or
call may not be purchased at a price in excess of par.
Permitted Transferee: Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
that is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(1) of the Code) with respect
to any Class R Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) an "electing large
partnership" as defined in Section 775 of the Code, (vi) a Person that is not a
citizen or resident of the United States, a corporation, partnership, or other
entity (treated as a corporation or a partnership for federal income tax
purposes) created or organized in or under the laws of the United States, any
state thereof or the District of Columbia, or an estate whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have
authority to control all substantial decisions of the trustor unless such
Person has furnished the transferor and the Trustee with a duly completed
Internal Revenue Service Form 4224, and (vii) any other Person so designated by
the Trustee based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Class R Certificate to such Person may cause the Trust Fund to
fail to qualify as a REMIC at any time that any Certificates are Outstanding.
The terms "United States," "State" and "International Organization" shall have
the meanings set forth in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or
of any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Prepayment Assumption: The applicable rate of prepayment, as
described in the Prospectus Supplement relating to the Certificates in a
Certificate Group.
Prepayment Interest Excess: With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a Principal Prepayment during
the period from the second day through the fifteenth day of the month of such
Distribution Date, any payment of interest received in connection therewith
(net of any applicable Servicing Fee) representing interest accrued for any
portion of such month of receipt.
Prepayment Interest Shortfall: With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a partial Principal Prepayment,
a Principal Prepayment in full, or that became a Liquidated Loan during the
period from the sixteenth day of the month preceding such Distribution Date
through the first day of the month in which such Distribution Date occurs, or
in the case of the first Distribution Date, from the Cut-off Date through and
including the fifteenth day of the month of such Distribution Date, (other than
a Principal Prepayment in full resulting from the purchase of a Mortgage Loan
pursuant to Section 2.02, 2.03, 2.04, 3.12 or 9.01 hereof), the amount, if any,
by which (i) one month's interest at the applicable Net Mortgage Rate on the
Stated Principal Balance of such Mortgage Loan immediately prior to such
prepayment (or liquidation) or in the case of a partial Principal Prepayment on
the amount of such prepayment (or liquidation proceeds) exceeds (ii) the amount
of interest paid or collected in connection with such Principal Prepayment or
such liquidation proceeds.
Prepayment Period: As to any Distribution Date, the time period
beginning with the opening of business on the sixteenth day of the calendar
month preceding the month in which such Distribution Date occurs (or, with
respect to the first Distribution Date, the period from the Cut-off Date) and
ending on the close of business on the fifteenth day of the month in which such
Distribution Date occurs.
Principal Prepayment: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including loans
purchased or repurchased under Sections 2.02, 2.03, 2.04, 3.12 and 9.01 hereof)
that is received in advance of its scheduled Due Date and is not accompanied by
an amount as to interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer in accordance
with the terms of the related Mortgage Note.
Prospectus Supplement: The Prospectus Supplement dated July 23, 1999
relating to the public offering of the Fixed Rate Certificates and the
Adjustable Rate Certificates offered thereby.
PUD: A Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan (x) required to be
repurchased by the Seller or purchased by (1) the Master Servicer, as
applicable, pursuant to Section 2.02, 2.03 or 3.12 hereof or (2) the Depositor
pursuant to Section 2.04 hereof or (y) that the Master Servicer has a right to
purchase pursuant to Section 3.12 hereof, an amount equal to the sum of (i)
100% of the unpaid principal balance (or, if such purchase or repurchase, as
the case may be, is effected by the Seller (and the Seller is the Master
Servicer) or by the Master Servicer, the Stated Principal Balance) of the
Mortgage Loan as of the date of such purchase and (ii) accrued interest thereon
at the applicable Mortgage Rate (or, if such purchase or repurchase, as the
case may be, is effected by the Seller (and the Seller is the Master Servicer)
or by the Master Servicer, at the Net Mortgage Rate) from (a) the date through
which interest was last paid by the Mortgagor (or, if such purchase or
repurchase, as the case may be, is effected by the Seller (and the Seller is
the Master Servicer) or by the Master Servicer, the date through which interest
was last advanced and not reimbursed by the Master Servicer) to (b) the Due
Date in the month in which the Purchase Price is to be distributed to
Certificateholders.
Rating Agency: Moody's and Fitch. If any such organization or its
successor is no longer in existence, "Rating Agency" shall be a nationally
recognized statistical rating organization, or other comparable Person,
designated by the Depositor, notice of which designation shall be given to the
Trustee. References herein to a given rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Loan, an amount (not
less than zero or more than the Stated Principal Balance of the Mortgage Loan)
as of the date of such liquidation, equal to (i) the Stated Principal Balance
of such Liquidated Loan as of the date of such liquidation, minus (ii) the
Liquidation Proceeds, if any, received in connection with such liquidation
during the month in which such liquidation occurs, to the extent applied as
recoveries of principal of the Liquidated Loan. With respect to each Mortgage
Loan that has become the subject of a Deficient Valuation, (i) if the value of
the related Mortgaged Property was reduced below the principal balance of the
related Mortgage Note, the amount by which the value of the Mortgaged Property
was reduced below the principal balance of the related Mortgage Note, and (ii)
if the principal amount due under the related Mortgage Note has been reduced,
the difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation plus any reduction in the
interest component of the Scheduled Payments. With respect to each Mortgage
Loan that has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the related Scheduled Payment
was reduced.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which the
applicable Distribution Date occurs.
Reference Bank Rate: With respect to any Accrual Period, the
arithmetic mean (rounded upwards, if necessary, to the nearest whole multiple
of 0.03125%) of the offered rates for United States dollar deposits for one
month that are quoted by the Reference Banks as of 11:00 a.m., New York City
time, on the related Interest Determination Date to prime banks in the London
interbank market for a period of one month in amounts approximately equal to
the outstanding balance of the Adjustable Rate Certificates on such Interest
Determination Date, provided that at least two such Reference Banks provide
such rate. If fewer than two offered rates appear, the Reference Bank Rate will
be the arithmetic mean (rounded upwards, if necessary, to the nearest whole
multiple of 0.03125%) of the rates quoted by one or more major banks in New
York City, selected by the Trustee, as of 11:00 a.m., New York City time, on
such date for loans in U.S. dollars to leading European banks for a period of
one month in amounts approximately equal to the outstanding balance of the
Adjustable Rate Certificates on such Interest Determination Date.
Reference Banks: Barclays Bank PLC, Bankers Trust and NatWest, N.A.,
provided that if any of the foregoing banks are not suitable to serve as a
Reference Bank, then any leading banks selected by the Trustee which are
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with the Depositor or any affiliate thereof and (iii) which have been
designated as such by the Trustee.
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificate: Any one of the Fixed Rate Certificates and the
Adjustable Rate Certificates.
Remittance Report: As defined in Section 4.04(n).
REO Property: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Replacement Mortgage Loan: A Mortgage Loan substituted by the Seller
for a Deleted Mortgage Loan, which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit N, (i)
have a Stated Principal Balance, after deduction of the principal portion of
the Scheduled Payment due in the month of substitution, not in excess of, and
not less than 90% of the Stated Principal Balance of the Deleted Mortgage Loan;
(ii) with respect to any Fixed Rate Mortgage Loan, have a Mortgage Rate not
less than or no more than 1% per annum higher than the Mortgage Rate of the
Deleted Mortgage Loan and, with respect to any Adjustable Rate Mortgage Loan:
(a) have a Maximum Mortgage Rate no more than 1% per annum higher or lower than
the Maximum Mortgage Rate of the Deleted Mortgage Loan; (b) have a Minimum
Mortgage Rate no more than 1% per annum higher or lower than the Minimum
Mortgage Rate of the Deleted Mortgage Loan; (c) have the same Index and
Periodic Rate Cap as that of the Deleted Mortgage Loan and a Gross Margin not
more than 1% per annum higher or lower than that of the Deleted Mortgage Loan;
and (d) not permit conversion of the related Mortgage Rate to a fixed Mortgage
Rate; (iii) have the same or higher credit quality characteristics than that of
the Deleted Mortgage Loan; (iv) be accruing interest at a rate not more than 1%
per annum higher or lower than that of the Deleted Mortgage Loan; (v) have a
Loan-to-Value Ratio or Combined Loan-to-Value Ratio, as applicable, no higher
than that of the Deleted Mortgage Loan; (vi) have a remaining term to maturity
no greater than (and not more than one year less than) that of the Deleted
Mortgage Loan; (vii) not permit conversion of the Mortgage Rate from a fixed
rate to a variable rate or visa versa; (viii) provide for a prepayment charge
on terms substantially similar to those of the prepayment charge, if any, of
the Deleted Mortgage Loan; (ix) have the same lien priority as the Deleted
Mortgage Loan; (x) constitute the same occupancy type as the Deleted Mortgage
Loan; and (xi) comply with each representation and warranty set forth in
Section 2.03 hereof.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Adjustable Rate Carryover Reserve Fund Deposit: With respect
to any Distribution Date on which the Net Excess Spread is less than 0.25%, the
excess of (i) the product of 0.50% and the aggregate Stated Principal Balance
of the Adjustable Rate Mortgage Loans over (ii) the amount of funds on deposit
in the Adjustable Rate Carryover Reserve Fund prior to deposits thereto on such
Distribution Date. With respect to any Distribution Date on which the Net
Excess Spread is equal to or greater than 0.25%, the excess of (i) $5,000 over
(ii) the amount of funds on deposit in the Adjustable Rate Carryover Reserve
Fund prior to deposits thereto on such Distribution Date.
Required Fixed Rate Carryover Reserve Fund Deposit: With respect to
any Distribution Date on which the Net Excess Spread is less than 0.25%, the
excess of (i) the product of 0.50% and the aggregate Stated Principle Balance
of the Fixed Rate Mortgage Loans over (ii) the amount of funds on deposit in
the Fixed Rate Carryover Reserve Fund prior to deposits thereto on such
Distribution Date. With respect to any Distribution Date on which the Net
Excess Spread is equal to or greater than 0.25%, the excess of (i) $5,000 over
(ii) the amount of funds on deposit in the Fixed Rate Carryover Reserve Fund
prior to deposits thereto on such Distribution Date.
Required Percentage: With respect to: (i) the Fixed Rate Trigger
Event and any Distribution Date after the Fixed Rate Stepdown Date, is equal to
the quotient of (x) the excess of (I) the Stated Principal Balance of the Fixed
Rate Mortgage Loans as of the preceding Due Date over (II) the Certificate
Principal Balance of the most senior Class of the Fixed Rate Certificates
outstanding as of the preceding Master Servicer Advance Date (provided that the
Certificate Principal Balance of the most senior Class of Fixed Rate
Certificates shall mean the Fixed Rate Class A Certificate Principal Balance
until such principal balance is reduced to zero) and (y) the Stated Principal
Balance of the Fixed Rate Mortgage Loans; and (ii) the Adjustable Rate Trigger
Event and any Distribution Date after the Adjustable Rate Stepdown Date, is
equal to the quotient of (x) the excess of (I) the Stated Principal Balance of
the Adjustable Rate Mortgage Loans as of as of the preceding Due Date over (II)
the Certificate Principal Balance of the most senior Class of the Adjustable
Rate Certificates outstanding as of the preceding Master Servicer Advance Date
and (y) the Stated Principal Balance of the Adjustable Rate Mortgage Loans
outstanding.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage
Loan.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide Home Loans, Inc., a New York corporation, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations hereunder, including, but not limited to, the cost
of (i) the preservation, restoration and protection of a Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.10.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the Servicing Fee Rate on the Stated
Principal Balance of such Mortgage Loan or, in the event of any payment of
interest that accompanies a Principal Prepayment in full made by the Mortgagor,
interest at the Servicing Fee Rate on the Stated Principal Balance of such
Mortgage Loan for the period covered by such payment of interest.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
S&P: Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
Stated Principal Balance: With respect to any Mortgage Loan or
related REO Property (i) as of the Cut-off Date and each day thereafter to and
including the first Distribution Date, the Cut-off Date Principal Balance
thereof, and (ii) as of any Distribution Date after the first Distribution
Date, such Cut-off Date Principal Balance minus the sum of (a) the principal
portion of the Scheduled Payments (x) due with respect to such Mortgage Loan
during each Due Period ending prior to the immediately preceding Distribution
Date and (y) that were received by the Master Servicer as of the close of
business on the Determination Date related to such preceding Distribution Date
or with respect to which Advances were made on each Master Servicer Advance
Date prior to such preceding Distribution Date and (b) all Principal
Prepayments with respect to such Mortgage Loan received prior to the preceding
Prepayment Period, and all Liquidation Proceeds to the extent applied by the
Master Servicer as recoveries of principal in accordance with Section 3.12 with
respect to such Mortgage Loan, that were received by the Master Servicer as of
the close of business on the Determination Date related to such preceding
Distribution Date. The Stated Principal Balance of any Mortgage Loan
immediately following a given Distribution Date shall be deemed to equal the
Stated Principal Balance of such Mortgage Loan as of the immediately following
Distribution Date, and, in particular, the Stated Principal Balance of any
Mortgage Loan that becomes a Liquidated Loan will be zero immediately following
the Distribution Date following the Prepayment Period in which such Mortgage
Loan becomes a Liquidated Loan. References herein to the Stated Principal
Balance of a Loan Group at any time shall mean the aggregate Stated Principal
Balance of all Mortgage Loans in such Loan Group at such time.
Subservicer: As defined in Section 3.02(a).
Subservicing Agreement: As defined in Section 3.02(c).
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03(c).
Substitution Amount: With respect to any Mortgage Loan substituted
pursuant to Section 2.03(c), the excess of (x) the principal balance of the
Mortgage Loan that is substituted for, over (y) the principal balance of the
related substitute Mortgage Loan, each balance being determined as of the date
of substitution.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)-1T. Initially, this person shall be the
Trustee.
Tax Matters Person Class R Certificate: A Class R Certificate
designated as the Tax Matters Person Class R Certificate and evidencing 0.001%
Percentage Interest of the Class R Certificates.
3/27 Mortgage Loan: A Mortgage Loan having a Mortgage Rate that is
fixed for 36 months after origination thereof before such Mortgage Rate becomes
subject to adjustment.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto on and after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance thereof, exclusive of interest not
required to be deposited in the Certificate Account pursuant to Section
3.05(b)(ii); (ii) the Certificate Account, the Distribution Account, the Fixed
Rate Carryover Reserve Fund and the Adjustable Rate Carryover Reserve Fund and
all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed in lieu of foreclosure or otherwise; (iv) the mortgagee's
rights under the Insurance Policies with respect to the Mortgage Loan; and (v)
all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or other liquid property.
Trustee: The Bank of New York, a New York banking corporation, not in
its individual capacity, but solely in its capacity as trustee for the benefit
of the Certificateholders under this Agreement, and any successor thereto, and
any corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
2/28 Mortgage Loan: A Mortgage Loan having a Mortgage Rate that is
fixed for 24 months after origination thereof before such Mortgage Rate becomes
subject to adjustment.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificates for purposes of the voting
provisions hereunder. Voting Rights allocated to each Class of Certificates
shall be allocated 95% to the Fixed Rate Certificates and Adjustable Rate
Certificates (other than the Class B-IO Certificates), and 5% to the Class B-IO
Certificates and the Class R Certificates, with the allocation among the Fixed
Rate Certificates and Adjustable Rate Certificates to be in proportion to the
Certificate Principal Balance of each Class relative to the Certificate
Principal Balance of all other such Classes, and with the allocation among the
Class BF-IO, Class BV-IO and Class R Certificates being two-fifths, two-fifths
and one-fifth, respectively. Voting Rights will be allocated among the
Certificates of each such Class in accordance with their respective Percentage
Interests.
Weighted Maximum Rate Cap: As of any Distribution Date, a rate equal
to (i) the weighted average of the Maximum Mortgage Rates on the Adjustable
Rate Mortgage Loans on such Distribution Date multiplied by 360 over the actual
number of days in the Due Period minus (ii) the Servicing Fee Rate.
Section 1.02. Certain REMIC-Related Defined Terms.
In addition to those defined terms defined in Section 1.01, whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Adjustable Rate Adjusted Overcollateralization Amount: For any
Distribution Date, the excess of (c) the Stated Principal Balance of the
Adjustable Rate Mortgage Loans as of the preceding Due Date over (d) the
aggregate principal balance of the Class T3-V1, Class T3-V2, Class T3-V3, and
the Class T3-V4 Interests.
Adjustable Rate Adjusted Overcollateralization Release Amount: For
any Distribution Date, the lesser of the (a) the Adjustable Rate Principal
Distribution Amount with respect to the Adjustable Rate Mortgage Loans, and (b)
the amount, if any, by which the Adjustable Rate Adjusted Overcollateralization
Amount for such date, calculated for this purpose on the basis of the
assumption that 100% of the Adjustable Rate Principal Distribution Amount for
such date is applied on such date in reduction of the principal balances of the
Class T3-V1, Class T3-V2, Class T3-V3, and Class T3-V4 Interests, exceeds the
Adjustable Rate Specified Overcollateralization Amount.
Class R-1F Interest: The uncertificated residual interest in REMIC
1F.
Class R-1V Interest: The uncertificated residual interest in REMIC
1V.
Class R-2 Interest: The uncertificated residual interest in REMIC 2.
Class R-3 Interest: The uncertificated residual interest in REMIC 3.
Class R-4 Interest: The uncertificated residual interest in REMIC 4.
Class T1-F1 Interest: A regular interest in REMIC 1F that is held as
an asset of REMIC 2, that has an initial principal balance equal to 98% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net Rate,
and that has such other terms as are described in Section 4.06.
Class T1-F2 Interest: A regular interest in REMIC 1F that is held as
an asset of REMIC 2, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net Rate,
and that has such other terms as are described in Section 4.06.
Class T1-F3 Interest: A regular interest in REMIC 1F that is held as
an asset of REMIC 2, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net Rate,
and that has such other terms as are described in Section 4.06.
Class T1-V1 Interest: A regular interest in REMIC 1V that is held as
an asset of REMIC 2, that has an initial principal balance equal to 98% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T1-V2 Interest: A regular interest in REMIC 1V that is held as
an asset of REMIC 2, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T1-V3 Interest: A regular interest in REMIC 1V that is held as
an asset of REMIC 2, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T2-F1 Interest: A regular interest in REMIC 2 that is held as
an asset of REMIC 3, that has an initial principal balance equal to 98% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net Rate,
and has such other terms as are described in Section 4.06.
Class T2-F2 Interest: A regular interest in REMIC 2 that is held as
an asset of REMIC 3, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Standard
Rate, and has such other terms as are described in Section 4.06.
Class T2-F3 Interest: A regular interest in REMIC 2 that is held as
an asset of REMIC 3, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date, that bears interest at a per annum rate equal to the Fixed Rate Net Rate,
and has such other terms as are described in Section 4.06.
Class T2-F4 Interest: A regular interest in REMIC 2 that is held as
an asset of REMIC 3, that is entitled to 100% of the interest accruals on the
Class T1-F2 Interest in excess of interest accruals on the Class T2-F2
Interest, and that has such other terms as are described in Section 4.06. The
Class T2-F4 interest shall not have a principal balance.
Class T2-V1 Interest: A regular interest in REMIC 2 that is held as
an asset of REMIC 3, that has an initial principal balance equal to 98% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T2-V2 Interest: A regular interest in REMIC 2 that is held as
an asset of REMIC 3, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Rate Standard Rate, and that has such other terms as are described in Section
4.06.
Class T2-V3 Interest: A regular interest in REMIC 2 that is held as
an asset of REMIC 3, that has an initial principal balance equal to 1% of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date, that bears interest at a per annum rate equal to the Adjustable
Net Rate, and that has such other terms as are described in Section 4.06.
Class T2-V4 Interest: A regular interest in REMIC 2 that is held as
an asset of REMIC 3, that is entitled to 100% of the interest accruals on the
Class T1-V2 Interest in excess of interest accruals on the Class T2-V2
Interests, and that has such other terms as are described in Section 4.06. The
Class T2-F4 interest shall not have a principal balance.
Class T3-F1 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4, that has an initial principal balance of $49,806,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F2 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4, that has an initial principal balance of $12,734,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F3 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4, that has an initial principal balance of $19,803,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F4 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4, that has an initial principal balance of $9,950,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F5 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4, that has an initial principal balance of $9,199,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F6 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4, that has an initial principal balance of $8,880,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F7 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4, that has an initial principal balance of $6,660,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F8 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4, that has an initial principal balance of $5,075,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F9 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4, that has an initial principal balance of $4,757,000, that bears
interest at a rate equal to the Fixed Rate Standard Rate, and that has such
other terms as are described in Section 4.06.
Class T3-F10 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that has such terms as are described in Section 4.06.
Class T3-F10 Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T3-F10 Notional Balance immediately before such
distribution date, and (iii) the Class T3-F10 Pass-Through Rate.
Class T3-F10 Notional Balance: A notional principal balance equal as
of any date to the sum of the principal balances of the Class T2-F1 and T2-F3
interests for such date.
Class T3-F10 Pass-Through Rate: With respect to any Distribution
Date, a per annum rate equal to (i) the excess of the Fixed Rate Net Rate for
such date over (ii) the product of two and a fraction, the numerator of which
is the product of (x) the Fixed Rate Standard Rate and (y) the principal
balance of the Class T2-F2 Interest immediately prior to such Distribution
Date, and the denominator of which is the sum of the principal balances of the
Class T2-F2 and T2-F3 Interests immediately before such Distribution Date.
Class T3-F11 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that has such terms as are described in Section 4.06.
Class T3-F11 Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T3-F11 Notional Balance immediately before such
Distribution Date, and (iii) the Class T3-F11 Pass-Through Rate.
Class T3-F11 Notional Balance: A notional principal balance equal as
of any date to the principal balance of the Class T2-F2 interest for such date.
Class T3-F11 Pass-Through Rate: With respect to any Distribution
Date, a per annum rate equal to (i) the excess of the Fixed Rate Standard Rate
over (ii) the product of two and a fraction, the numerator of which is the
product of (x) the Fixed Rate Standard Rate and (y) the Class T2-F2 Interest
immediately prior to such Distribution Date, and the denominator of which is
the sum of the principal balances of the Class T2-F2 and T2-F3 Interests
immediately before such Distribution Date.
Class T3-F12 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that is entitled to receive 100% of the amounts distributable with
respect to the Class T2-F4 Interest, and has such terms as are described in
Section 4.06.
Class T3-F13 Interest: A regular interest in REMIC 3 that is held as
an asset of REMIC 4 that will exist and have a principal balance to the extent
of the excess of (i) the aggregate Stated Principal Balance of the Fixed Rate
Mortgage Loans as of the Cut-off Date over (ii) the aggregate Certificate
Principal Balance of the Class AF-1, Class AF-2, Class AF-3, Class AF-4, Class
AF-5, Class AF-6, Class MF-1, Class MF-2 and Class BF Certificates on the
Closing Date. The Class T3-F13 Interest will bear interest at the Fixed Rate
Standard Rate. Interest on the Class T3-F13 Interest will accrue and be paid
with principal on the Class T3-F13 Interest following the reduction of the
Certificate Principal Balances of the Class AF-1, Class AF-2, Class AF-3, Class
AF-4, Class AF-5, Class AF-6, Class MF-1, Class MF-2, Class BF Certificates to
zero.
Class T3-V1 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that has an initial principal balance of $142,420,000 and bears
interest at a rate equal to the Adjustable Rate Standard Rate.
Class T3-V2 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that has an initial principal balance of $12,011,000 bears interest
at a rate equal to the Adjustable Rate Standard Rate.
Class T3-V3 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that has an initial principal balance of $7,722,000 and bears
interest at a rate equal to the Adjustable Rate Standard Rate.
Class T3-V4 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that has an initial principal balance of $9,437,000 and bears
interest at a rate equal to the Adjustable Rate Standard Rate.
Class T3-V5 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that has such terms as are described in Section 4.06.
Class T3-V5 Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T3-V5 Notional Balance, and (iii) the Class T3-V5
Pass-Through Rate.
Class T3-V5 Notional Balance: A notional principal balance equal as
of any date to the sum of the principal balances of the Class T2-V1 and T2-V3
Interests for such date.
Class T3-V5 Pass-Through Rate: With respect to any Distribution Date,
a per annum rate equal to the excess of (i) the Adjustable Net Rate for such
date over (ii) the product of two and a fraction, the numerator of which is the
product of (x) the Adjustable Rate Standard Rate and (y) the principal balance
of the Class T2-V2 Interest immediately prior to such Distribution Date, and
the denominator of which is the sum of the principal balances of the Class
T2-V2 and Class T2-V3 Interests immediately prior to such Distribution Date.
Class T3-V6 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that has such terms as are described in Section 4.06.
Class T3-V6 Distributable Amount: With respect to any Distribution
Date, an amount equal to the product of (i) a fraction, the numerator of which
is the number of days in the related Accrual Period and the denominator of
which is 360, (ii) the Class T3-V6 Notional Balance, and (iii) the Class T3-V6
Pass-Through Rate.
Class T3-V6 Notional Balance: A notional principal balance equal as
of any date to the principal balance of the Class T2-V2 Interests for such
date.
Class T3-V6 Pass-Through Rate: With respect to any Distribution Date,
a per annum rate equal to the excess of (i) the Adjustable Rate Standard Rate
for such date over (ii) the product of (x) two and (y) a fraction, the
numerator of which is the product of the Adjustable Rate Standard Rate, and the
denominator of which is the sum of the principal balances of the Class T2-V2
and Class T2-V3 Interests immediately prior to such Distribution Date.
Class T3-V7 Interest: A regular interest in REMIC 3 held as an asset
of REMIC 4 that is entitled to receive 100% of the amounts distributable with
respect to the Class T2-V4 Interest, and has such terms as are described in
Section 4.06.
Class T3-V8 Interest: A regular interest in REMIC 3 that is held as
an asset of REMIC 4 that will exist and have a principal balance to the extent
of the excess of (i) the aggregate Stated Principal Balance of the Adjustable
Rate Mortgage Loans as of the Cutoff Date over (ii) the aggregate Certificate
Principal Balance of the Class AV-1, Class MV-1, Class MV-2 and Class BV
Certificates on the Closing Date. The Class T3-V8 Interest will bear interest
at the Adjustable Rate Standard Rate. Interest on the Class T3-V8 Interest will
accrue and be paid with principal on the Class T3-V8 Interest following the
reduction of the Certificate Principal Balances of the Class AV-1, Class MV-1,
Class MV-2, Class BV Certificates to zero.
Class T4-F1 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $49,806,000 and bears interest at the Class AF-1
Pass-Through Rate. Ownership of the Class T4-F1 Interest is evidenced by the
Class AF-1 Certificates.
Class T4-F2 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $12,734,000 and bears interest at the Class AF-2
Pass-Through Rate. Ownership of the Class T4-F2 Interest is evidenced by the
Class AF-2 Certificates.
Class T4-F3 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $19,803,000 and bears interest at the Class AF-3
Pass-Through Rate. Ownership of the Class T4-F3 Interest is evidenced by the
Class AF-3 Certificates.
Class T4-F4 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $9,950,000 and bears interest at the Class AF-4
Pass-Through Rate. Ownership of the Class T4-F4 Interest is evidenced by the
Class AF-4 Certificates.
Class T4-F5 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $9,199,000 and bears interest at the Class AF-5
Pass-Through Rate. Ownership of the Class T4-F5 Interest is evidenced by the
Class AF-5 Certificates.
Class T4-F6 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $8,880,000 and bears interest at the Class AF-6
Pass-Through Rate. Ownership of the Class T4-F6 Interest is evidenced by the
Class AF-6 Certificates.
Class T4-F7 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $6,660,000 and bears interest at the lesser of the
Class MF-1 Pass-Through Rate and the Fixed Rate Net Rate, Ownership of the
Class T4-F7 Interest is evidenced by the Class MF-1 Certificates.
Class T4-F8 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $5,075,000 and bears interest at the Class MF-2
Pass-Through Rate. Ownership of the Class T4-F6 Interest is evidenced by the
Class MF-2 Certificates.
Class T4-F9 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $4,757,000 and bears interest at the lesser of the
Class BF Pass-Through Rate and the Fixed Rate Net Rate, Ownership of the Class
T4-F9 Interest is evidenced by the Class BF Certificates.
Class T4-F10 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-F1 Interest in excess of the
Class AF-1 Pass-Through Rate. Ownership of the Class T4-F10 Interest is
represented by the Class BF-IO Certificates.
Class T4-F11 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-F2 Interest in excess of the
Class AF-2 Pass-Through Rate. Ownership of the Class T4-F11 Interest is
evidenced by the Class BF-IO Certificates.
Class T4-F12 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-F3 Interest in excess of the
Class AF-3 Pass-Through Rate. Ownership of the Class T4-F12 Interest is
evidenced by the Class BF-IO Certificates.
Class T4-F13 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-F4 Interest in excess of the
Class AF-4 Pass-Through Rate. Ownership of the Class T4-F13 Interest is
evidenced by the Class BF-IO Certificates.
Class T4-F14 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-F5 Interest in excess of the
Class AF-5 Pass-Through Rate. Ownership of the Class T4-F14 Interest is
evidenced by the Class BF-IO Certificates.
Class T4-F15 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-F6 Interest in excess of the
Class AF-6 Pass-Through Rate. Ownership of the Class T4-F15 Interest is
evidenced by the Class BF-IO Certificates.
Class T4-F16 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-F7 Interest in excess of the
Class MF-1 Pass-Through Rate. Ownership of the Class T4-F16 Interest is
evidenced by the Class BF-IO Certificates.
Class T4-F17 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-F8 Interest in excess of the
Class MF-2 Pass-Through Rate. Ownership of the Class T4-F17 Interest is
evidenced by the Class BF-IO Certificates.
Class T4-F18 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the amounts distributable on the Class T3-F10, Class T3-F11, Class
T3-F12, and Class T3-F13 Interests. The Class TF-18 Interest is represented by
the Class BF-IO Certificates.
Class T4-V1 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $142,420,000 and that bears interest at the lesser
of (i) the Class AV-1 Pass-Through Rate and (ii) the Adjustable Net Rate.
Ownership of the Class T4-V1 Interest is evidenced by the Class AV-1
Certificates.
Class T4-V2 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $12,011,000 and that bears interest at the lesser
of (i) the Class MV-1 Pass-Through Rate and (ii) the Adjustable Net Rate.
Ownership of the Class T4-V2 Interest is evidenced by the Class MV-1
Certificates.
Class T4-V3 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $7,722,000 and that bears interest at the lesser
of (i) the Class MV-2 Pass-Through Rate and (ii) the Adjustable Net Rate.
Ownership of the Class T4-V3 Interest is evidenced by the Class MV-2
Certificates.
Class T4-V4 Interest: A regular interest in REMIC 4 that has an
initial principal balance of $9,437,000 and that bears interest at the lesser
of the Class BV Pass-Through Rate and (ii) the Adjustable Net Rate. Ownership
of the Class T4-V4 Interest is evidenced by the Class BV Certificates.
Class T4-V5 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-V1 Interest in excess of the
Class AV-1 Pass-Through Rate. Ownership of the Class T4-V5 Interest is
evidenced by the Class BV-IO Certificates.
Class T4-V6 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-V2 Interest in excess of the
Class MV-1 Pass-Through Rate. Ownership of the Class T4-V6 Interest is
evidenced by the Class BV-IO Certificates.
Class T4-V7 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the interest accruals on the Class T3-V3 Interest in excess of the
Class MV-2 Pass-Through Rate. Ownership of the Class T4-V7 Interest is
evidenced by the Class BV-IO Certificates.
Class T4-V8 Interest: A regular interest in REMIC 4 that is entitled
to 100% of the amounts distributable with respect to the Class T3-V5, Class
T3-V6, Class T3-V7, and Class T3-V8 Interests. The Class T4-V8 Interest is
evidenced by the Class BV-IO Certificates.
Fixed Rate Adjusted Overcollateralization Amount: For any
Distribution Date, the excess of (a) the Stated Principal Balance of the Fixed
Rate Mortgage Loans as of the preceding Due Date over (b) the aggregate
principal balance of the Class T3-F1, Class T3-F2, Class T3-F-3, Class T3-F4,
Class T3-F5, Class T3-F6, Class T3-F7, Class T3-F8, and the Class T3-F9
Interests.
Fixed Rate Adjusted Overcollateralization Release Amount: For any
Distribution Date, the lesser of (a) the Fixed Rate Principal Distribution
Amount with respect to the Fixed Rate Mortgage Loans, and (b) the amount, if
any, by which the Fixed Rate Adjusted Overcollateralization Amount for such
date, calculated for this purpose on the basis of the assumption that 100% of
the Fixed Rate Principal Distribution Amount for such date is applied on such
date in reduction of the principal balances of the Class T3-F1, Class T3-F2,
Class T3-F3, Class T3-F4, Class T3-F5, Class T3-F6, Class T3-F7, Class T3-F8,
and the Class T3-F9 Interests, exceeds the Fixed Rate Specified
Overcollateralization Amount.
REMIC: As described in the Preliminary Statements, which term shall
mean "real estate mortgage investment conduit" within the meaning of section
860D of the Code.
REMIC 1F: As described in the Preliminary Statement.
REMIC 1V: As described in the Preliminary Statement.
REMIC 2: As described in the Preliminary Statement.
REMIC 3: As described in the Preliminary Statement.
REMIC 4: As described in the Preliminary Statement.
REMIC 1F Regular Interests: As described in the Preliminary
Statement.
REMIC 1V Regular Interests: As described in the Preliminary
Statement.
REMIC 2 Regular Interests: As described in the Preliminary Statement.
REMIC 3 Regular Interests: As described in the Preliminary Statement.
REMIC 4 Regular Interests: As described in the Preliminary Statement.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final regulations and published rulings, notices
and announcements promulgated thereunder, as the foregoing may be in effect
from time to time as well as provisions of applicable state laws.
Upper Tier REMIC: As described in the Preliminary Statement.
<PAGE>
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.
The Seller hereby sells, transfers, assigns, sets over and otherwise
conveys to the Depositor, without recourse, all the right, title and interest
of the Seller in and to the Mortgage Loans, including all interest and
principal received and receivable by the Seller on or with respect to the
Mortgage Loans on and after the Cut-off Date (to the extent not applied in
computing the Cut-off Date Principal Balance thereof) or deposited into the
Certificate Account by the Seller as an Initial Certificate Account Deposit as
provided in this Agreement, other than principal due on the Mortgage Loans
prior to the Cut-off Date and interest accruing prior to the Cut-off Date. The
Seller confirms that, concurrently with such transfer and assignment, it has
deposited into the Certificate Account the Initial Certificate Account Deposit.
The Seller has entered into this Agreement in consideration for the
purchase of the Mortgage Loans by the Depositor and has agreed to take the
actions specified herein.
The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the use and benefit of the Certificateholders, without recourse,
all the right, title and interest of the Depositor in and to the Trust Fund.
In connection with any such transfer and assignment, the Depositor
has delivered to, and deposited with, the Trustee (or, in the case of the Delay
Delivery Mortgage Loans, will deliver to, and deposit with, the Trustee within
thirty (30) days following the Closing Date) (except as provided in clause (vi)
below) for the benefit of the Certificateholders, the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse, in the following form:
"Pay to the order of ____________________ without recourse" or "Pay to the
order of The Bank of New York, a New York banking corporation, as trustee
under the Pooling and Servicing Agreement dated as of July 1, 1999, Bear
Stearns Asset Backed Securities, Inc. Home Equity Loan Trust 1999-1,
without recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller;
(ii) original recorded Mortgage;
(iii) a duly executed assignment of the Mortgage to "The Bank of New
York, a New York banking corporation, as trustee under the Pooling and
Servicing Agreement dated as of July 1, 1999, Bear Stearns Asset Backed
Securities, Inc. Home Equity Loan Trust 1999-1, without recourse" (each
such assignment, when duly and validly completed, to be in recordable form
and sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage;
(v) [Reserved]; and
(vi) the original or duplicate original lender's title policy or, in
the event such original title policy has not been received from the
insurer, such original or duplicate original lender's title policy shall
be delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan the Seller
cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii)
or (iv) concurrently with the execution and delivery hereof, the Seller shall
deliver or cause to be delivered to the Trustee a true copy of such Mortgage
and of each such undelivered interim assignment of the Mortgage each certified
by the Seller, the applicable title company, escrow agent or attorney, or the
originator of such Mortgage, as the case may be, to be a true and complete copy
of the original Mortgage or assignment of Mortgage submitted for recording. The
Seller shall promptly deliver or cause to be delivered to the Trustee such
original Mortgage and such assignment or assignments with evidence of recording
indicated thereon upon receipt thereof from the public recording official, or a
copy thereof, certified, if appropriate, by the relevant recording office, but
in no event shall any such delivery be made later than 270 days following the
Closing Date; provided that in the event that by such date the Seller is unable
to deliver or cause to be delivered each Mortgage and each interim assignment
by reason of the fact that any such documents have not been returned by the
appropriate recording office, or, in the case of each interim assignment,
because the related Mortgage has not been returned by the appropriate recording
office, the Seller shall deliver or cause to be delivered such documents to the
Trustee as promptly as possible upon receipt thereof. If the public recording
office in which a Mortgage or interim assignment thereof is recorded retains
the original of such Mortgage or assignment, a copy of the original Mortgage or
assignment so retained, with evidence of recording thereon, certified to be
true and complete by such recording office, shall satisfy the Seller's
obligations in this Section 2.01. If any document submitted for recording
pursuant to this Agreement is (a) lost prior to recording or rejected by the
applicable recording office, the Seller shall immediately prepare or cause to
be prepared a substitute and submit it for recording, and shall deliver copies
and originals thereof in accordance with the foregoing or (b) lost after
recording, the Seller shall deliver to the Trustee a copy of such document
certified by the applicable public recording office to be a true and complete
copy of the original recorded document. The Seller shall promptly forward or
cause to be forwarded to the Trustee (a) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and (b)
any other documents required to be delivered by the Depositor or the Master
Servicer to the Trustee within the time periods specified in this Section 2.01.
With respect to each Mortgage Loan as to which the related Mortgaged
Property and Mortgage File are located in (a) the State of California or (b)
any other jurisdiction under the laws of which the recordation of the
assignment specified in clause (iii) above is not necessary to protect the
Trustee's and the Certificateholders, interest in the related Mortgage Loan, as
evidenced by an Opinion of Counsel, delivered by the Seller to the Trustee and
a copy to the Rating Agencies, in lieu of recording the assignment specified in
clause (iii) above, the Seller may deliver an unrecorded assignment in blank,
in form otherwise suitable for recording to the Trustee; provided that if the
related Mortgage has not been returned from the applicable public recording
office, such assignment, or any copy thereof, of the Mortgage may exclude the
information to be provided by the recording office. As to any Mortgage Loan,
the procedures of the preceding sentence shall be applicable only so long as
the related Mortgage File is maintained in the possession of the Trustee in the
State or jurisdiction described in such sentence. In the event that (i) the
Seller, the Depositor or the Master Servicer gives written notice to the
Trustee that recording is required to protect the right, title and interest of
the Trustee on behalf of the Certificateholders in and to any Mortgage Loan,
(ii) a court recharacterizes the sale of the Mortgage Loans as a financing, or
(iii) as a result of any change in or amendment to the laws of the State or
jurisdiction described in the first sentence of this paragraph or any
applicable political subdivision thereof, or any change in official position
regarding application or interpretation of such laws, including a holding by a
court of competent jurisdiction, such recording is so required, the Trustee
shall complete the assignment in the manner specified in clause (iii) of the
second paragraph of this Section 2.01 and the Seller shall submit or cause to
be submitted for recording as specified above or, should the Seller fail to
perform such obligations, the Trustee shall cause the Master Servicer, at the
Master Servicer's expense, to cause each such previously unrecorded assignment
to be submitted for recording as specified above. In the event a Mortgage File
is released to the Master Servicer as a result of the Master Servicer's having
completed a Request for Release in the form of Exhibit M, the Trustee shall
complete the assignment of the related Mortgage in the manner specified in
clause (iii) of the second paragraph of this Section 2.01.
So long as the Trustee maintains an office in the State of
California, the Trustee shall maintain possession of and not remove or attempt
to remove from the State of California any of the Mortgage Files as to which
the related Mortgaged Property is located in such State. In the event that the
Seller fails to record an assignment of a Mortgage Loan as herein provided
within 90 days of notice of an event set forth in clause (i), (ii) or (iii) of
the above paragraph, the Master Servicer shall prepare and, if required
hereunder, file such assignments for recordation in the appropriate real
property or other records office. The Seller hereby appoints the Master
Servicer (and any successor servicer hereunder) as its attorney-in-fact with
full power and authority acting in its stead for the purpose of such
preparation, execution and filing.
In the case of Mortgage Loans that become the subject of a Principal
Prepayment between the Closing Date and the Cut-off Date, the Seller shall
deposit or cause to be deposited in the Certificate Account the amount required
to be deposited therein with respect to such payment pursuant to Section 3.05
hereof.
Notwithstanding anything to the contrary in this Agreement, within
thirty days after the Closing Date, the Seller shall either (i) deliver to the
Trustee the Mortgage File as required pursuant to this Section 2.01 for each
Delay Delivery Mortgage Loan or (ii) (A) repurchase the Delay Delivery Mortgage
Loan or (B) substitute the Delay Delivery Mortgage Loan for a Replacement
Mortgage Loan, which repurchase or substitution shall be accomplished in the
manner and subject to the conditions set forth in Section 2.03, provided that
if the Seller fails to deliver a Mortgage File for any Delay Delivery Mortgage
Loan within the period provided in the prior sentence, the cure period provided
for in Section 2.02 or in Section 2.03 shall not apply to the initial delivery
of the Mortgage File for such Delay Delivery Mortgage Loan, but rather the
Seller shall have five (5) Business Days to cure such failure to deliver. Upon
delivery of the Mortgage File for each Delay Delivery Mortgage Loan, the
Trustee shall send an Initial Certification for such Delay Delivery Mortgage
Loan in accordance with the provisions of Section 2.02.
Section 2.02. Acceptance by Trustee of the Mortgage Loans.
The Trustee acknowledges receipt, subject to the limitations
contained in and any exceptions noted in the Initial Certification in the form
annexed hereto as Exhibit G-1 and in the list of exceptions attached thereto,
of the documents referred to in clauses (i) and (iii) of Section 2.01 above and
all other assets included in the Trust Fund and declares that it holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files, and that it holds or will hold such other assets included in
the Trust Fund, in trust for the exclusive use and benefit of all present and
future Certificateholders.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and the Seller an Initial Certification in the
form annexed hereto as Exhibit G-1 to the effect that, as to each Mortgage
Loan listed in the 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), the documents described in Section 2.01(i)
and (iii) with respect to such Mortgage Loan are in its possession, and based
on its review and examination and only as to the foregoing documents, such
documents appear regular on their face and relate to such Mortgage Loan. The
Trustee agrees to execute and deliver within 30 days after the Closing Date to
the Depositor, the Master Servicer and the Seller an Interim Certification in
the form annexed hereto as Exhibit G-2 to the effect that, as to each Mortgage
Loan listed in the 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), all documents required to be delivered to
it pursuant to this Agreement with respect to such Mortgage Loan are in its
possession (except those described in Section 2.01(v)) and based on its review
and examination and only as to the foregoing documents, (i) such documents
appear regular on their face and relate to such Mortgage Loan, and (ii) the
information set forth in items (i), (iv), (v), (vi) and (viii) of the
definition of the "Mortgage Loan Schedule" accurately reflects information set
forth in the Mortgage File. On or before the thirtieth (30th) day after the
Closing Date, the Trustee shall deliver to the Depositor, the Master Servicer
and the Seller a Delay Delivery Certification in the form annexed hereto as
Exhibit G-3, with any applicable exceptions noted thereon. The Trustee shall
be under no duty or obligation to inspect, review or examine such documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
Not later than 180 days after the Closing Date, the Trustee shall
deliver to the Depositor, the Master Servicer and the Seller (and to any
Certificateholder that so requests) a Final Certification in the form annexed
hereto as Exhibit H, with any applicable exceptions noted thereon.
In connection with the Trustee's completion and delivery of such
Final Certification, the Trustee shall review each Mortgage File to determine
that it contains the following documents:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse, in the following form:
"Pay to the order of _______________ without recourse" or "Pay to the
order of The Bank of New York, a New York banking corporation, as trustee
under the Pooling and Servicing Agreement dated as of July 1, 1999, Bear
Stearns Asset Backed Securities, Inc. Home Equity Loan Trust 1999-1,
without recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller;
(ii) the original recorded Mortgage;
(iii) ____ a duly executed assignment of the Mortgage in the form
permitted by Section 2.01;
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage;
(v) [Reserved]; and
(vi) the original or duplicate original lender's title policy if
delivered pursuant to Section 2.06 (vi) (otherwise such original or
duplicate original lender's title policy shall be held in the Mortgage
File upon delivery as provided in such Section).
If, in the course of such review, the Trustee finds any document or
documents constituting a part of such Mortgage File that do not meet the
requirements of clauses (i)-(iv) and (vi) above, the Trustee shall include such
exceptions in such Final Certification (and Trustee shall state in such Final
Certification whether any Mortgage File does not then include the original or
duplicate original lender's title policy and all riders thereto). If the public
recording office in which a Mortgage or assignment thereof is recorded retains
the original of such Mortgage or assignment, a copy of the original Mortgage or
assignment so retained, with evidence of recording thereon, certified to be
true and complete by such recording office, shall be deemed to satisfy the
requirements of clause (ii), (iii) or (iv) above, as applicable. The Seller
shall promptly correct or cure such defect referred to above within 90 days
from the date it was so notified of such defect and, if the Seller does not
correct or cure such defect within such period, the Seller shall either (a) if
the time to cure such defect expires prior to the end of the second anniversary
of the Closing Date, substitute for the related Mortgage Loan a Replacement
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) purchase such
Mortgage Loan from the Trustee within 90 days from the date the Seller was
notified of such defect in writing at the Purchase Price of such Mortgage Loan;
provided that any such substitution pursuant to (a) above or repurchase
pursuant to (b) above shall not be effected prior to the delivery to the
Trustee of the Opinion of Counsel required by Section 2.05 hereof and any
substitution pursuant to (a) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit N. No substitution will be made in any calendar month after
the Determination Date for such month. The Purchase Price for any such Mortgage
Loan shall be deposited by the Seller in the Certificate Account and, upon
receipt of such deposit and certification with respect thereto in the form of
Exhibit N hereto, the Trustee shall release the related Mortgage File to the
Seller and shall execute and deliver at the Seller's request such instruments
of transfer or assignment as the Seller has prepared, in each case without
recourse, as shall be necessary to vest in the Seller, or a designee, the
Trustee's interest in any Mortgage Loan released pursuant hereto.
The Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions set forth herein.
The Seller shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting the
Mortgage File that come into the possession of the Seller from time to time.
It is understood and agreed that the obligation of the Seller to
substitute for or to purchase any Mortgage Loan that does not meet the
requirements of Section 2.01(i)-(vi) above shall constitute the sole remedy
respecting such defect available to the Trustee, the Depositor, and any
Certificateholder against the Seller.
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Seller.
(a) The Master Servicer hereby represents and warrants to the
Depositor and the Trustee as follows, as of the date hereof:
(i) The Master Servicer is duly organized as a New York corporation
and is validly existing and in good standing under the laws of the State
of New York and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by the Master
Servicer in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to ensure its ability to enforce each
Mortgage Loan, to service the Mortgage Loans in accordance with the terms
of this Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(ii) The Master Servicer has the full corporate power and authority
to sell and service each Mortgage Loan, and to execute, deliver and
perform, and to enter into and consummate the transactions contemplated by
this Agreement and has duly authorized by all necessary corporate action
on the part of the Master Servicer the execution, delivery and performance
of this Agreement; and this Agreement, assuming the due authorization,
execution and delivery hereof by the other parties hereto, constitutes a
legal, valid and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with its terms, except that (a)
the enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor
may be brought.
(iii) The execution and delivery of this Agreement by the Master
Servicer, the servicing of the Mortgage Loans by the Master Servicer under
this Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or compliance with
the terms hereof are in the ordinary course of business of the Master
Servicer and will not (A) result in a material breach of any term or
provision of the charter or by-laws of the Master Servicer or (B)
materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which the Master Servicer is a
party or by which it may be bound, or (C) constitute a material violation
of any statute, order or regulation applicable to the Master Servicer of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Master Servicer; and the Master Servicer is
not in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or violation
may materially impair the Master Servicer's ability to perform or meet any
of its obligations under this Agreement.
(iv) The Master Servicer is an approved servicer of conventional
mortgage loans for FNMA or FHLMC and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and
211 of the National Housing Act.
(v) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened, against the Master Servicer that would materially
and adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Master Servicer to service the Mortgage
Loans or to perform any of its other obligations under this Agreement in
accordance with the terms hereof.
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of, or compliance by the Master
Servicer with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval, authorization or
order is required, the Master Servicer has obtained the same.
(b) The Seller hereby represents and warrants to the Depositor and
the Trustee as follows, as of the date hereof:
(i) The Seller is duly organized as a New York corporation and is
validly existing and in good standing under the laws of the State of New
York and is duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by the Seller in any state
in which a Mortgaged Property is located or is otherwise not required
under applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to ensure its ability to enforce each Mortgage Loan, to sell the
Mortgage Loans in accordance with the terms of this Agreement and to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(ii) The Seller has the full corporate power and authority to sell
each Mortgage Loan, and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by this Agreement and has
duly authorized by all necessary corporate action on the part of the
Seller the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery hereof
by the other parties hereto, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except that (a) the enforceability hereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(iii) The execution and delivery of this Agreement by the Seller, the
sale of the Mortgage Loans by the Seller under this Agreement, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof are
in the ordinary course of business of the Seller and will not (A) result
in a material breach of any term or provision of the charter or by-laws of
the Seller or (B) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under, the
terms of any other material agreement or instrument to which the Seller is
a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to the Seller of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Seller; and the Seller is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair the
Seller's ability to perform or meet any of its obligations under this
Agreement.
(iv) The Seller is an approved seller of conventional mortgage loans
for FNMA or FHLMC and is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to sections 203 and 211 of the National
Housing Act.
(v) No litigation is pending or, to the best of the Seller's
knowledge, threatened, against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Seller to sell the Mortgage Loans or to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation of the transactions contemplated hereby, or
if any such consent, approval, authorization or order is required, the
Seller has obtained the same.
(vii) With respect to each Mortgage Loan, as of the Cut-off Date
(unless otherwise expressly provided):
(A) The information set forth in the Mortgage Loan Schedule on
the Closing Date and in each Mortgage File is complete, true and correct.
(B) Except for approximately 1.84% of the Adjustable Rate
Mortgage Loans (by Stated Principal Balance as of the Cut-off Date) and
approximately 1.75% of the Fixed Rate Mortgage Loans (by Stated Principal
Balance as of the Cut-off Date), all payments required to be made prior to the
Cut-off Date have been made and no Mortgage Loan is delinquent thirty (30) or
more days; and the Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner of
the Mortgaged Property subject to the Mortgage, directly or indirectly, for the
payment of any amount required under the Mortgage Loan.
(C) There are no delinquent taxes, water charges, sewer rents,
assessments, insurance premiums, leasehold payments, including assessments
payable in future installments, or other outstanding charges affecting the
related Mortgaged Property.
(D) The terms of the Mortgage Note and the Mortgage have not
been impaired, waived, altered or modified in any respect, except by written
instruments which are in the Mortgage File and have been or will be recorded,
if necessary to protect the interests of the Trustee, and which have been or
will be delivered to the Trustee, all in accordance with this Agreement. The
substance of any such waiver, alteration or modification has been approved by
the title insurer, to the extent required by the related policy. No Mortgagor
has been released, in whole or in part, except in connection with an assumption
agreement approved by the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Mortgage File.
(E) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto.
(F) All buildings upon, or comprising part of, the Mortgaged
Property are insured by an insurer acceptable to FNMA and FHLMC against loss by
fire, hazards of extended coverage and such other hazards as are customary in
the area where the Mortgaged Property is located, and such insurer is licensed
to do business in the state where the Mortgaged Property is located. All such
insurance policies contain a standard mortgagee clause naming the originator,
its successors and assigns as mortgagee and Seller has received no notice that
all premiums thereon have not been paid. If upon origination of the Mortgage
Loan, the Mortgaged Property was, or was subsequently deemed to be, in an area
identified in the Federal Register by the Federal Emergency Management Agency
as having special flood hazards (and such flood insurance has been made
available), which require under applicable law that a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration (or any successor thereto) be obtained, such flood insurance
policy is in effect which policy is with a generally acceptable carrier in an
amount representing coverage not less than the least of (A) the Stated
Principal Balance of the related Mortgage Loan (together, in the case of a
Mortgage Loan that is not a first priority lien, with the outstanding principal
balance of any liens that are prior to the related Mortgage Loan lien), (B) the
minimum amount required to compensate for damage or loss on a replacement cost
basis, or (C) the maximum amount of insurance that is available under the Flood
Disaster Protection Act of 1973. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at Mortgagor's cost and expense and,
on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at Mortgagor's cost and expense and to obtain
reimbursement therefor from the Mortgagor. Each Mortgage Loan has in place a
fully-paid life of loan flood certification from a FNMA- or FHLMC-approved
vendor, assigned in care of the Master Servicer or its designee, which provides
for notification to the Master Servicer or its designee, of changes in
designated flood areas which would affect such Mortgage Loan. The term
"originator" as used in Section 2.03(b)(vii) shall be deemed to mean Amresco
Residential Mortgage Corporation or Provident Funding Associates, L.P. (as the
case may be) as originator of the related Mortgage Loan.
(G) Any and all requirements of any federal, state or local law
including, usury, truth in lending, real estate settlement procedures
including, the Real Estate Settlement Procedures Act of 1974, as amended,
consumer credit protection, equal credit opportunity or disclosure laws
applicable to the Mortgage Loan have been complied with in all material
respects.
(H) The Mortgage has not been satisfied, canceled, subordinated,
or rescinded, in whole or in part, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission.
(I) The Mortgage is a valid, existing and enforceable first or
second lien on the Mortgaged Property, including all improvements on the
Mortgaged Property, if any, subject only to (1) the lien of current real
property taxes and assessments not yet due and payable, (2) covenants,
conditions and restrictions, rights of way, easements and other matters of the
public record as of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and which do
not adversely affect the Appraised Value of the Mortgaged Property, (3) in the
case of a Mortgage that is not a first priority lien, the first lien on the
Mortgaged Property identified in the related Mortgage File, and (4) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage. The Seller has full right to sell and assign the Mortgage to the
Depositor.
(J) The Mortgage Note and the related Mortgage are genuine and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency or reorganization or general
principles of equity.
(K) All parties to the Mortgage Note and the Mortgage had the
legal capacity to enter into the Mortgage Loan transaction and to execute and
deliver the Mortgage Note and the Mortgage, and the Mortgage Note and the
Mortgage have been duly and properly executed by such parties.
(L) The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or Mortgage.
(M) Immediately prior to the conveyance of the Mortgage Loans by
the Seller to the Depositor hereunder, the Seller was the sole owner and holder
of the Mortgage Loan and the related servicing rights and the related
originator or the Seller was the custodian of the related escrow account, if
applicable; the Mortgage Loan had neither been assigned nor pledged, and the
Seller had good and marketable title thereto, and had full right to transfer
and sell the Mortgage Loan and the related servicing rights to the Depositor
free and clear of any encumbrance, equity, lien, pledge, charge, claim or
security interest and had full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
Mortgage Loan and the related servicing rights to the Depositor pursuant to the
terms of this Agreement.
(N) All parties which have had any interest in the Mortgage,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of
the state wherein the Mortgaged Property is located, and (2) organized under
the laws of such state, qualified to do business in such state, a federal
savings and loan association or national bank having principal offices in such
state or not deemed to be doing business in such state under applicable law.
(O) The Mortgage Loan is covered by an ALTA lender's title
insurance policy or equivalent form acceptable to the Department of Housing and
Urban Development, or any successor thereto, and qualified to do business in
the jurisdiction where the Mortgaged Property is located, insuring (subject to
the exceptions contained in (I)(1) and (2) above) the Seller (as assignee), its
successors and assigns as to the first priority lien of the Mortgage, if
applicable, in the original principal amount of the Mortgage Loan and against
any loss by reason of the invalidity or unenforceability of the lien resulting
from the provisions of the Mortgage Note and/or Mortgage providing for
adjustment in the Mortgage Rate and monthly payment. Additionally, such
lender's title insurance policy affirmatively insures ingress and egress, and
against encroachments by or upon the Mortgaged Property or any interest
therein. The Seller (as assignee) is the sole insured of such lender's title
insurance policy, and such lender's title insurance policy is in full force and
effect. No claims have been made under such lender's title insurance policy,
and no prior holder of the related Mortgage, including the Seller, has done, by
act or omission, anything which would impair the coverage of such lender's
title insurance policy.
(P) Except for approximately 1.84% of the Adjustable Rate
Mortgage Loans (by Stated Principal Balance as of the Cut-off Date) and except
for approximately 1.75% of the Fixed Rate Mortgage Loans (by Stated Principal
Balance as of the Cut-off Date), immediately prior to the Cut-off Date, there
was no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and there was no event which, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration, and the
Seller has not waived any default, breach, violation or event of acceleration.
(Q) There are no mechanics' or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding that
under law could give rise to such lien) affecting the related Mortgaged
Property which are or may be liens prior to or equal with, the lien of the
related Mortgage.
(R) All improvements which were considered in any appraisal
which was used in determining the Appraised Value of the related Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property.
(S) The Mortgage Loan was originated in compliance with all
state and federal licensing and consumer loan laws and regulations.
(T) The origination, servicing and collection practices with
respect to each Mortgage Note and Mortgage including, the establishment,
maintenance and servicing of the escrow accounts and escrow payments, if any,
since origination, have been conducted in all respects in accordance with the
terms of Mortgage Note and in compliance with all applicable laws and
regulations and, unless otherwise required by law or FNMA/FHLMC standard, in
accordance with the proper, prudent and customary practices in the mortgage
origination and servicing business. With respect to the escrow accounts and
escrow payments, if any, all such payments are in the possession or under the
control of the Seller and there exists no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. No
escrow deposits or escrow payments or other charges or payments due the Seller
have been capitalized under any Mortgage or the related Mortgage Note. All
Mortgage Rate adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage Note. Any interest required
to be paid pursuant to state and local law has been properly paid and credited.
(U) The Mortgaged Property is free of material damage and waste
and there is no proceeding pending for the total or partial condemnation
thereof.
(V) The Mortgage contains customary and enforceable provisions
to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
intended to be provided thereby, including, (1) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (2) otherwise by judicial
foreclosure. There is no other exemption available to the Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's sale or
the right to foreclose the Mortgage. The Mortgagor has not notified the Seller
and the Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Soldiers and Sailors Civil Relief Act of 1940.
(W) The Mortgage Note is not and has not been secured by any
collateral except the lien of the applicable Mortgage.
(X) The Mortgage File contains an appraisal of the Mortgaged
Property signed prior to the approval of the Mortgage Loan application by an
appraiser who meets the minimum requisite qualifications of FNMA and FHLMC for
appraisers, duly appointed by the originator, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan; the appraisal is in a form acceptable to FNMA and FHLMC,
with such riders as are acceptable to FNMA and FHLMC.
(Y) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and
no fees or expenses are or will become payable by the Certificateholders to the
trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor.
(Z) No Mortgage Loan contains a permanent or temporary "buydown"
provision.
(AA) The Mortgagor has received all disclosure materials
required by applicable law with respect to the making of the Mortgage Loan. The
Seller has maintained or caused to be maintained all such statements in the
Mortgage File.
(BB) No Mortgage Loan was made in connection with the
construction or rehabilitation of a Mortgaged Property.
(CC) To the best of Seller's knowledge, the Mortgaged Property
is lawfully occupied under applicable law and all inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and occupancy
of the same, including but not limited to certificates of occupancy, have been
made or obtained from the appropriate authorities.
(DD) The assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located.
(EE) Any future advances made to the Mortgagor prior to the
Cut-off Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of the
Mortgage securing the consolidated principal amount is expressly insured as
having first or second lien priority, as applicable, by a title insurance
policy, an endorsement to the policy insuring the mortgagee's consolidated
interest or by other title evidence acceptable to FNMA and FHLMC. The
consolidated principal amount does not exceed the original principal amount of
the Mortgage Loan.
(FF) The appraisal of the Mortgaged Property are on forms
acceptable to FNMA and FHLMC.
(GG) The Mortgaged Property consists of a single parcel of real
property with a detached single family residence erected thereon, or an
individual condominium unit, or a 2-4 family dwelling or an individual unit in
a planned unit development as defined by FNMA, none of which is a mobile home,
or if a manufactured dwelling such manufactured dwelling conforms with FNMA and
FHLMC requirements regarding such dwellings, is permanently affixed to the
Mortgaged Property, and is legally classified as real estate; no such residence
is a mobile home or an investor-owned property.
(HH) The Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred without
the prior written consent of the mortgagee thereunder.
(II) With respect to the Adjustable Rate Mortgage Loans, on each
Adjustment Date, the Mortgage Rate shall be adjusted to equal the Index plus
the Gross Margin (rounded up or down to the nearest 0.125%), subject to the
Periodic Rate Cap and the Maximum Mortgage Rate as set forth in the respective
Mortgage Note. None of the Mortgage Loans contain a provision allowing the
Mortgagor to convert the Mortgage Note from an adjustable rate mortgage loan to
a fixed rate mortgage loan. The principal and interest due on each Mortgage
Loan is calculated pursuant to the standard amortization method (30/360 day
interest accrual).
(JJ) Each Mortgage Loan at the time of origination was
underwritten in accordance with the guidelines of the related originator, as
set forth in exhibits E-1 and E-2 of the Mortgage Loan Purchase and Interim
Servicing Agreement dated as of June 30, 1999 between Bear Stearns Mortgage
Capital Corporation and Countrywide Home Loans, Inc., and to the extent not
inconsistent therewith, generally accepted sub-prime credit underwriting
guidelines.
(KK) The Mortgage Note is not and has not been secured by any
collateral except the lien of corresponding Mortgage on the Mortgaged Property.
(LL) No Mortgage Loan contains provisions pursuant to which
monthly payments are (1) paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor or anyone on behalf
of the Mortgagor or (2) paid by any source other than the Mortgagor or contains
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature.
(MM) No error, omission, misrepresentation, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the part of the
Seller or the related originator.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty set forth in Section 2.03(a) or (b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to the
other parties. Each of the Master Servicer and the Seller (each, a
"Representing Party") hereby covenants with respect to the representations and
warranties set forth in Sections 2.03(a) and (b), respectively, that within 90
days of the earlier of the discovery by such Representing Party or receipt of
written notice by such Representing Party from any party of a breach of any
representation or warranty set forth herein made that materially and adversely
affects the interests of the Certificateholders in any Mortgage Loan, it shall
cure such breach in all material respects and, if such breach is not so cured,
shall, (i) if such 90-day period expires prior to the second anniversary of the
Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the
Trust Fund and substitute in its place a Replacement Mortgage Loan, in the
manner and subject to the conditions set forth in this Section; or (ii)
repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the
Purchase Price in the manner set forth below; provided that any such
substitution pursuant to (i) above or repurchase pursuant to (ii) above shall
not be effected prior to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.05 hereof and any such substitution pursuant to (i) above
shall not be effected prior to the additional delivery to the Trustee of a
Request for Release substantially in the form of Exhibit N. Any Representing
Party liable for a breach under this Section 2.03 shall promptly reimburse the
Master Servicer and the Trustee for any expenses reasonably incurred by the
Master Servicer or the Trustee in respect of enforcing the remedies for such
breach. To enable the Master Servicer to amend the Mortgage Loan Schedule, any
Representing Party liable for a breach under this Section 2.03 shall, unless it
cures such breach in a timely fashion pursuant to this Section 2.03, promptly
notify the Master Servicer whether such Representing Party intends either to
repurchase, or to substitute for, the Mortgage Loan affected by such breach.
With respect to the representations and warranties described in this Section
that are made to the best of the Representing Party's knowledge, if it is
discovered by any of the Depositor, the Master Servicer, the Seller or the
Trustee that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan, notwithstanding the Representing Party's lack of knowledge with
respect to the substance of such representation or warranty, such inaccuracy
shall be deemed a breach of the applicable representation or warranty.
With respect to any Replacement Mortgage Loan or Loans, the Seller
delivering such Replacement Mortgage Loan shall deliver to the Trustee for the
benefit of the Certificateholders the related Mortgage Note, Mortgage and
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution will be made in any
calendar month after the Determination Date for such month. Scheduled Payments
due with respect to Replacement Mortgage Loans in the Due Period related to the
Distribution Date on which such proceeds are to be distributed shall not be
part of the Trust Fund and will be retained by the Seller delivering such
Replacement Loan on such Distribution Date. For the month of substitution,
distributions to Certificateholders will include the Scheduled Payment due on
any Deleted Mortgage Loan for the related Due Period and thereafter the Seller
shall be entitled to retain all amounts received in respect of such Deleted
Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for
the benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans
and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall
be subject to the terms of this Agreement in all respects, and the Seller
delivering such Replacement Mortgage Loan shall be deemed to have made with
respect to such Replacement Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties set forth in Section 2.03(b)
with respect to such Mortgage Loan. Upon any such substitution and the deposit
to the Certificate Account of the amount required to be deposited therein in
connection with such substitution as described in the following paragraph, the
Trustee shall release to the Representing Party the Mortgage File relating to
such Deleted Mortgage Loan and held for the benefit of the Certificateholders
and shall execute and deliver at the Master Servicer's direction such
instruments of transfer or assignment as have been prepared by the Master
Servicer, in each case without recourse, as shall be necessary to vest in the
Seller, or its respective designee, title to the Trustee's interest in any
Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more Replacement
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Replacement Mortgage Loans as of the date of substitution is less than the
Stated Principal Balance (after application of the principal portion of the
Scheduled Payment due in the month of substitution) of all such Deleted
Mortgage Loans. An amount equal to the aggregate of the deficiencies described
in the preceding sentence (such amount, the "Substitution Adjustment Amount")
shall be deposited into the Certificate Account by the Seller delivering such
Replacement Mortgage Loan on the Determination Date for the Distribution Date
relating to the Prepayment Period during which the related Mortgage Loan became
required to be purchased or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Certificate Account
pursuant to Section 3.08 on the Determination Date for the Distribution Date in
the month following the month during which such Seller became obligated to
repurchase or replace such Mortgage Loan and upon such deposit of the Purchase
Price, the delivery of the Opinion of Counsel required by Section 2.05, if any,
and the receipt of a Request for Release in the form of Exhibit N hereto, the
Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to such Seller, and the Trustee shall execute and deliver at
such Person's direction the related instruments of transfer or assignment
prepared by such Seller, in each case without recourse, as shall be necessary
to transfer title from the Trustee for the benefit of the Certificateholders
and transfer the Trustee's interest to such Seller to any Mortgage Loan
purchased pursuant to this Section 2.03. It is understood and agreed that the
obligation under this Agreement of the Seller to cure, repurchase or replace
any Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedy against the Seller respecting such breach available
to Certificateholders, the Depositor or the Trustee.
(d) The representations and warranties set forth in Section 2.03
hereof shall survive delivery of the respective Mortgage Files to the Trustee
for the benefit of the Certificateholders.
Section 2.04. Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Master Servicer
and the Trustee as follows, as of the date hereof:
(i) The Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has full power and authority (corporate and other) necessary to own or
hold its properties and to conduct its business as now conducted by it and
to enter into and perform its obligations under this Agreement.
(ii) The Depositor has the full corporate power and authority to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and has duly authorized, by
all necessary corporate action on its part, the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, subject,
as to enforceability, to (i) bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and (ii) general principles of equity, regardless of whether enforcement
is sought in a proceeding in equity or at law.
(iii) The execution and delivery of this Agreement by the Depositor,
the consummation of the transactions contemplated by this Agreement, and
the fulfillment of or compliance with the terms hereof are in the ordinary
course of business of the Depositor and will not (A) result in a material
breach of any term or provision of the charter or by-laws of the Depositor
or (B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which the Depositor is a party
or by which it may be bound or (C) constitute a material violation of any
statute, order or regulation applicable to the Depositor of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Depositor; and the Depositor is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair the
Depositor's ability to perform or meet any of its obligations under this
Agreement.
(iv) No litigation is pending, or, to the best of the Depositor's
knowledge, threatened, against the Depositor that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Depositor to perform its obligations under
this Agreement in accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Depositor of, or compliance by the Depositor with, this
Agreement or the consummation of the transactions contemplated hereby, or
if any such consent, approval, authorization or order is required, the
Depositor has obtained the same.
The Depositor hereby represents and warrants to the Trustee with
respect to each Mortgage Loan as of the Closing Date, and following the
transfer of the Mortgage Loans to it by the Seller, the Depositor had good
title to the Mortgage Loans and the Mortgage Notes were subject to no offsets,
claims, defenses or counterclaims.
It is understood and agreed that the representations and warranties
set forth in the two immediately preceding paragraphs shall survive delivery of
the Mortgage Files to the Trustee. Upon discovery by the Depositor or the
Trustee of a breach of any of the foregoing representations and warranties set
forth in the immediately preceding paragraph (referred to herein as a
"breach"), which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency. The Depositor hereby covenants
with respect to the representations and warranties made by it in this Section
2.04 that within 90 days of the earlier of the discovery it or receipt of
written notice by it from any party of a breach of any representation or
warranty set forth herein made that materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, it shall cure such
breach in all material respects and, if such breach is not so cured, shall
repurchase or replace the affected Mortgage Loan or Loans in accordance with
the procedure set forth in Section 2.03(c).
Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases.
(a) Notwithstanding any contrary provision of this Agreement, with
respect to any Mortgage Loan that is not in default or as to which default is
not imminent, no repurchase or substitution pursuant to Sections 2.02, 2.03 or
2.04 shall be made unless the Representing Party making such repurchase or
substitution delivers to the Trustee an Opinion of Counsel, addressed to the
Trustee, to the effect that such repurchase or substitution would not (i)
result in the imposition of the tax on "prohibited transactions" of the Trust
Fund or contributions after the Closing Date, as defined in sections 860F(a)(2)
and 860G(d) of the Code, respectively or (ii) cause the Trust Fund to fail to
qualify as a REMIC at any time that any Certificates are outstanding. Any
Mortgage Loan as to which repurchase or substitution was delayed pursuant to
this paragraph shall be repurchased or the substitution therefor shall occur
(subject to compliance with Sections 2.02, 2.03 or 2.04) upon the earlier of
(a) the occurrence of a default or imminent default with respect to such loan
and (b) receipt by the Trustee of an Opinion of Counsel to the effect that such
repurchase or substitution, as applicable, will not result in the events
described in clause (i) or clause (ii) of the preceding sentence.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer
or the Trustee that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of section 86OG(a)(3) of the Code, the party
discovering such fact shall promptly (and in any event within 5 Business Days
of discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller's option, to
either (i) substitute, if the conditions in Section 2.03(b) with respect to
substitutions are satisfied, a Replacement Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty contained in Section 2.03. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in Section
2.03.
Section 2.06. Authentication and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment, has executed,
authenticated and delivered, to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates and to perform the duties set forth in this Agreement to the best
of its ability, to the end that the interests of the Holders of the
Certificates may be adequately and effectively protected.
Section 2.07. Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor, the Trustee as
follows:
(a) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and
requirements of the insurer under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor or the Trustee and prepared by the Master
Servicer pursuant to this Agreement will contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
information, certificate, statement or report not misleading.
<PAGE>
ARTICLE III.
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer
shall service and administer the Mortgage Loans in accordance with customary
and usual standards of practice of prudent mortgage loan lenders in the
respective states in which the Mortgaged Properties are located. In connection
with such servicing and administration, the Master Servicer shall have full
power and authority, acting alone and/or through subservicers as provided in
Section 3.02 hereof, to do or cause to be done any and all things that it may
deem necessary or desirable in connection with such servicing and
administration, including but not limited to, the power and authority, subject
to the terms hereof (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds, and (iv) subject to Section 3.12(a),
to effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing any Mortgage Loan; provided that the Master Servicer shall
take no action that is inconsistent with or prejudices the interests of the
Trust Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor and the Trustee under this Agreement. The Master
Servicer shall represent and protect the interest of the Trust Fund in the same
manner as it currently protects its own interest in mortgage loans in its own
portfolio in any claim, proceeding or litigation regarding a Mortgage Loan and
shall not make or permit any modification, waiver or amendment of any term of
any Mortgage Loan which would cause the Trust Fund to fail to qualify as a
REMIC or result in the imposition of any tax under Section 860(a) or 860(d) of
the Code, but in any case not in any manner that is a lesser standard than that
provided in the first sentence of this Section 3.01. Without limiting the
generality of the foregoing, the Master Servicer, in its own name or in the
name of the Depositor and the Trustee, is hereby authorized and empowered by
the Depositor and the Trustee, when the Master Servicer believes it appropriate
in its reasonable judgment, to execute and deliver, on behalf of the Trustee,
the Depositor, the Certificateholders or any of them, any and all instruments
of satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Master Servicer shall prepare and deliver to the
Depositor and/or the Trustee such documents requiring execution and delivery by
any or all of them as are necessary or appropriate to enable the Master
Servicer to service and administer the Mortgage Loans. Upon receipt of such
documents, the Depositor and/or the Trustee shall execute such documents and
deliver them to the Master Servicer.
In accordance with the standards of the preceding paragraph, the
Master Servicer shall advance or cause to be advanced funds as necessary for
the purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further
as provided in Section 3.08. All costs incurred by the Master Servicer, if any,
in effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balance under the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
The Master Servicer shall deliver a list of Servicing Officers to the
Trustee by the Closing Date.
Section 3.02. Subservicing; Enforcement of the Obligations of Master
Servicer.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a subservicer (each, a "Subservicer") pursuant to a
subservicing agreement (each, a "Subservicing Agreement"); provided that such
subservicing arrangement and the terms of the related subservicing agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder. Notwithstanding the
provisions of any subservicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer or
a subservicer or reference to actions taken through a Master Servicer or
otherwise, the Master Servicer shall remain obligated and liable to the
Depositor, the Trustee and the Certificateholders for the servicing and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from
the subservicer and to the same extent and under the same terms and conditions
as if the Master Servicer alone were servicing and administering the Mortgage
Loans. Every subservicing agreement entered into by the Master Servicer shall
contain a provision giving the successor Master Servicer the option to
terminate such agreement in the event a successor Master Servicer is appointed.
All actions of each subservicer performed pursuant to the related subservicing
agreement shall be performed as an agent of the Master Servicer with the same
force and effect as if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries or payments with respect to
the Mortgage Loans that are received by a subservicer regardless of whether
such payments are remitted by the subservicer to the Master Servicer.
Section 3.03. Rights of the Depositor, the Trustee in Respect of the
Master Servicer.
Neither the Trustee nor the Depositor shall have any responsibility
or liability for any action or failure to act by the Master Servicer, and none
of them is obligated to supervise the performance of the Master Servicer
hereunder or otherwise.
Section 3.04. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer
be the Master Servicer hereunder (including by reason of an Event of Default),
the Trustee or its designee shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that
the Trustee shall not be (i) liable for losses of the Master Servicer pursuant
to Section 3.10 hereof or any acts or omissions of the predecessor Master
Servicer hereunder, (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder, including pursuant to Section 2.02
or 2.03 hereof, (iv) responsible for expenses of the Master Servicer pursuant
to Section 2.03 or (v) deemed to have made any representations and warranties
hereunder, including pursuant to Section 2.03 or the first paragraph of Section
6.02 hereof). If the Master Servicer shall for any reason no longer be the
Master Servicer (including by reason of any Event of Default), the Trustee (or
any other successor servicer) may, at its option, succeed to any rights and
obligations of the Master Servicer under any subservicing agreement in
accordance with the terms thereof; provided that the Trustee (or any other
successor servicer) shall not incur any liability or have any obligations in
its capacity as servicer under a subservicing agreement arising prior to the
date of such succession unless it expressly elects to succeed to the rights and
obligations of the Master Servicer thereunder; and the Master Servicer shall
not thereby be relieved of any liability or obligations under the subservicing
agreement arising prior to the date of such succession.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents and
records relating to each subservicing agreement and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the subservicing agreement to the assuming party.
Section 3.05. Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account.
(a) The Master Servicer shall make reasonable efforts in accordance
with customary and usual standards of practice of prudent mortgage lenders in
the respective states in which the Mortgaged Properties are located to collect
all payments called for under the terms and provisions of the Mortgage Loans to
the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any related Required Insurance Policy. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection with
the prepayment of a Mortgage Loan and (ii) extend the due dates for payments
due on a Mortgage Note for a period not greater than 270 days. In the event of
any such arrangement, the Master Servicer shall make Advances on the related
Mortgage Loan during the scheduled period in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements. The Master Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any public or governmental authority with
respect to a taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which such
payment is required is prohibited by applicable law.
(b) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit or cause to be deposited
on a daily basis within one Business Day of receipt, except as otherwise
specifically provided herein, the following payments and collections remitted
by Subservicers or received by it in respect of Mortgage Loans subsequent to
the Cut-off Date (other than in respect of principal and interest due on the
Mortgage Loans before the Cut-off Date) and the following amounts required to
be deposited hereunder:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans net of
the related Servicing Fee permitted under Section 3.15, other than
interest accrued on the Mortgage Loans prior to July 1, 1999, and the
Initial Certificate Account Deposit;
(iii) all Liquidation Proceeds, other than proceeds to be applied to
the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Master Servicer's normal servicing
procedures;
(iv) all Compensating Interest;
(v) any amount required to be deposited by the Master Servicer
pursuant to Section 3.05(e) in connection with any losses on Permitted
Investments;
(vi) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.10 hereof;
(vii) the Purchase Price and any Substitution Adjustment Amount;
(viii) all Advances made by the Master Servicer pursuant to Section
4.01; and
(ix) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Master Servicer into
the Certificate Account shall be exclusive, it being understood and agreed
that, without limiting the generality of the foregoing, payments in the nature
of prepayment penalties, late payment charges or assumption fees, if collected,
need not be remitted by the Master Servicer. In the event that the Master
Servicer shall remit any amount not required to be remitted and not otherwise
subject to withdrawal pursuant to Section 3.08 hereof, it may at any time
withdraw or direct the institution maintaining the Certificate Account, to
withdraw such amount from the Certificate Account, any provision herein to the
contrary notwithstanding. Such withdrawal or direction may be accomplished by
delivering written notice thereof to the institution maintaining the
Certificate Account, that describes the amounts deposited in error in the
Certificate Account. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section. All funds deposited
in the Certificate Account shall be held in trust for the Certificateholders
until withdrawn in accordance with Section 3.08.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer pursuant to
the second paragraph of Section 3.08(a); and
(ii) any amount required to be deposited by the Master Servicer
pursuant to Section 3.05(e) in connection with any losses on Permitted
Investments.
The foregoing requirements for remittance by the Master Servicer and
deposit by the Trustee into the Distribution Account shall be exclusive. In the
event that the Master Servicer shall remit any amount not required to be
remitted and not otherwise subject to withdrawal pursuant to Section 3.08
hereof, it may at any time direct the Trustee to withdraw such amount from the
Distribution Account, any provision herein to the contrary notwithstanding.
Such direction may be accomplished by delivering a written notice to the
Trustee that describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be held by the
Trustee in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Section 3.08. In no event shall
the Trustee incur liability for withdrawals from the Distribution Account at
the direction of the Master Servicer.
(d) [Reserved.]
(e) Each institution that maintains the Certificate Account, the
Distribution Account, the Fixed Rate Carryover Reserve Fund or the Adjustable
Rate Carryover Reserve Fund shall invest the funds in each such account, as
directed by the Master Servicer, in Permitted Investments, which shall mature
not later than (i) in the case of the Certificate Account, the second Business
Day next preceding the related Distribution Account Deposit Date (except that
if such Permitted Investment is an obligation of the institution that maintains
such Certificate Account, then such Permitted Investment shall mature not later
than the Business Day next preceding such Distribution Account Deposit Date)
and (ii) in the case of the Distribution Account, the Fixed Rate Carryover
Reserve Fund and the Adjustable Rate Carryover Reserve Fund, the Business Day
immediately preceding the first Distribution Date that follows the date of such
investment (except that if such Permitted Investment is an obligation of the
institution that maintains such Distribution Account, the Fixed Rate Carryover
Reserve Fund or Adjustable Rate Carryover Reserve Fund, then such Permitted
Investment shall mature not later than such Distribution Date) and, in each
case, shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the benefit
of the Certificateholders, except in connection with Permitted Investments made
with respect to funds in (x) the Fixed Rate Carryover Reserve Fund which shall
be made in the name of the Trustee, for the benefit of the Class BF-IO
Certificateholders and (y) the Adjustable Rate Carryover Reserve Fund which
shall be made in the name of the Trustee, for the benefit of the Class BV-IO
Certificateholders. In the case of (x) the Certificate Account and the
Distribution Account, all income and gain net of any losses realized from any
such investment shall be for the benefit of the Master Servicer as servicing
compensation and shall be remitted to it monthly as provided herein, (y) the
Fixed Rate Carryover Reserve Fund, all income and gain net of any losses
realized from any such investment shall be for the benefit of the Class BF-IO
Certificateholders and shall be remitted to the Class BF-IO Certificateholders
monthly as provided herein, and (z) the Adjustable Rate Carryover Reserve Fund,
all income and gain net of any losses realized from any such investment shall
be for the benefit of the Class BV-IO Certificateholders and shall be remitted
to the Class BV-IO Certificateholders monthly as provided herein. The amount of
any losses incurred in the Certificate Account or the Distribution Account in
respect of any such investments shall be deposited by the Master Servicer in
the Certificate Account or paid to the Trustee for deposit into the
Distribution Account, as applicable, out of the Master Servicer's own funds
immediately as realized. Any losses incurred in the Fixed Rate Carryover
Reserve Fund in respect of any such investments shall be charged against
amounts on deposit in the Fixed Rate Carryover Reserve Fund (or such
investments) immediately as realized. Any losses incurred in the Adjustable
Rate Carryover Reserve Fund in respect of any such investments shall be charged
against amounts on deposit in the Carryover Fund (or such investments)
immediately as realized. The Trustee shall not be liable for the amount of any
loss incurred in respect of any investment or lack of investment of funds held
in the Certificate Account, the Distribution Account, the Fixed Rate Carryover
Reserve Fund or the Adjustable Rate Carryover Reserve Fund and made in
accordance with this Section 3.05.
(f) The Master Servicer shall give at least 30 days advance notice to
the Trustee, the Seller, each Rating Agency and the Depositor of any proposed
change of location of the Certificate Account prior to any change thereof. The
Trustee shall give at least 30 days advance notice to the Master Servicer, the
Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Distribution Account, the Fixed Rate Carryover Reserve Fund or
the Adjustable Rate Carryover Reserve Fund prior to any change thereof.
Section 3.06. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
To the extent required by the related Mortgage Note, the Master
Servicer shall establish and maintain one or more accounts (each, an "Escrow
Account") and deposit and retain therein all collections from the Mortgagors
(or advances by the Master Servicer) for the payment of taxes, assessments,
hazard insurance premiums or comparable items for the account of the
Mortgagors. Nothing herein shall require the Master Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse the Master Servicer out of related collections for any payments made
pursuant to Sections 3.01 hereof (with respect to taxes and assessments and
insurance premiums) and 3.10 hereof (with respect to hazard insurance), to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required by law or the terms of the related Mortgage or Mortgage
Note, to Mortgagors on balances in the Escrow Account or to clear and terminate
the Escrow Account at the termination of this Agreement in accordance with
Section 9.01 hereof. The Escrow Accounts shall not be a part of the Trust Fund.
Section 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage Loans
and all accounts, insurance policies and other matters relating to this
Agreement, such access being afforded without charge, but only upon reasonable
request and during normal business hours at the offices of the Master Servicer
designated by it.
Upon reasonable advance notice in writing if required by federal
regulation, the Master Servicer will provide to each Certificateholder that is
a savings and loan association, bank or insurance company certain reports and
reasonable access to information and documentation regarding the Mortgage Loans
sufficient to permit such Certificateholder to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates; provided that the Master Servicer shall be
entitled to be reimbursed by each such Certificateholder for actual expenses
incurred by the Master Servicer in providing such reports and access.
Section 3.08. Permitted Withdrawals from the Certificate Account,
Distribution Account, the Fixed Rate Carryover Reserve
Fund and the Adjustable Rate Carryover Reserve Fund.
(a) The Master Servicer may from time to time make withdrawals from
the Certificate Account for the following purposes:
(i) to pay to the Master Servicer (to the extent not previously paid
to or withheld by the Master Servicer), as servicing compensation in
accordance with Section 3.15, that portion of any payment of interest that
equals the Servicing Fee for the period with respect to which such
interest payment was made, and, as additional servicing compensation,
those other amounts set forth in Section 3.15;
(ii) to reimburse the Master Servicer for Advances made by it with
respect to the Mortgage Loans, such right of reimbursement pursuant to
this subclause (ii) being limited to amounts received on particular
Mortgage Loan(s) (including, for this purpose, Liquidation Proceeds) that
represent late recoveries of payments of principal and/or interest on such
particular Mortgage Loan(s) in respect of which any such Advance was made;
(iii) to reimburse the Master Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse the Master Servicer from Insurance Proceeds for
Insured Expenses covered by the related Insurance Policy;
(v) to pay the Master Servicer any unpaid Servicing Fees and to
reimburse it for any unreimbursed Servicing Advances, the Master
Servicer's right to reimbursement of Servicing Advances pursuant to this
subclause (v) with respect to any Mortgage Loan being limited to amounts
received on particular Mortgage Loan(s) (including, for this purpose,
Liquidation Proceeds and purchase and repurchase proceeds) that represent
late recoveries of the payments for which such advances were made pursuant
to Section 3.01 or Section 3.06;
(vi) to pay to the Seller, the Depositor or the Master Servicer, as
applicable, with respect to each Mortgage Loan or property acquired in
respect thereof that has been purchased pursuant to Section 2.02, 2.03 or
3.12, all amounts received thereon and not taken into account in
determining the related Stated Principal Balance of such repurchased
Mortgage Loan;
(vii) to reimburse the Seller, the Master Servicer or the Depositor
for expenses incurred by any of them in connection with the Mortgage Loans
or Certificates and reimbursable pursuant to Section 6.03 hereof provided
that such amount shall only be withdrawn following the withdrawal from the
Certificate Account for deposit into the Distribution Account pursuant to
the following paragraph;
(viii) to withdraw pursuant to Section 3.05 any amount deposited in
the Certificate Account and not required to be deposited therein; and
(ix) to clear and terminate the Certificate Account upon termination
of this Agreement pursuant to Section 9.01 hereof.
In addition, no later than 1:00 p.m. Pacific time on the Distribution
Account Deposit Date, the Master Servicer shall withdraw from the Certificate
Account and remit to the Trustee the amount of Fixed Rate Interest Funds, Fixed
Rate Principal Funds, Adjustable Rate Interest Funds and Adjustable Rate
Principal Funds, to the extent on deposit, and the Trustee shall deposit such
amount in the Distribution Account.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to subclauses (i), (ii), (iv),
(v) and (vi) above. Prior to making any withdrawal from the Certificate Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee
an Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loan(s), and their respective
portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account
for distribution to the Certificateholders in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the amount of any
taxes that it is authorized to retain pursuant to the last paragraph of Section
8.11). In addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay to the Master Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds in or
credited to the Distribution Account;
(ii) to withdraw pursuant to Section 3.05 any amount deposited in the
Distribution Account and not required to be deposited therein; and
(iii) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01 hereof.
(c) The Trustee shall withdraw funds from the Fixed Rate Carryover
Reserve Fund for distribution to the Fixed Rate Certificateholders in the
manner specified in this Agreement (and to withhold from the amounts so
withdrawn, the amount of any taxes that it is authorized to retain pursuant to
the last paragraph of Section 8.11). In addition, the Trustee may from time to
time make withdrawals from the Fixed Rate Carryover Reserve Fund for the
following purposes:
(i) to withdraw pursuant to Section 3.05 any amount deposited in the
Fixed Rate Carryover Reserve Fund and not required to be deposited
therein; and
(ii) to clear and terminate the Fixed Rate Carryover Reserve Fund
upon termination of the Agreement pursuant to Section 9.01 hereof.
(d) The Trustee shall withdraw funds from the Adjustable Rate
Carryover Reserve Fund for distribution to the Adjustable Rate
Certificateholders in the manner specified in this Agreement (and to withhold
from the amounts so withdrawn, the amount of any taxes that it is authorized to
retain pursuant to the last paragraph of Section 8.11). In addition, the
Trustee may from time to time make withdrawals from the Adjustable Rate
Carryover Reserve Fund for the following purposes:
(i) to withdraw pursuant to Section 3.05 any amount deposited in the
Adjustable Rate Carryover Reserve Fund and not required to be deposited
therein; and
(ii) to clear and terminate the Adjustable Rate Carryover Reserve
Fund upon termination of the Agreement pursuant to Section 9.01 hereof.
Section 3.09. [Reserved.]
Section 3.10. Maintenance of Hazard Insurance.
The Master Servicer shall cause to be maintained, for each Mortgage
Loan, hazard insurance on buildings upon, or comprising part of, the Mortgaged
Property against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located
with an insurer which is licensed to do business in the state where the
Mortgaged Property is located. Each such policy of standard hazard insurance
shall contain, or have an accompanying endorsement that contains, a standard
mortgagee clause. The Master Servicer shall also cause flood insurance to be
maintained on property acquired upon foreclosure or deed in lieu of foreclosure
of any Mortgage Loan, to the extent described below. Pursuant to Section 3.05
hereof, any amounts collected by the Master Servicer under any such policies
(other than the amounts to be applied to the restoration or repair of the
related Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the Master Servicer's normal servicing procedures)
shall be deposited in the Certificate Account. Any cost incurred by the Master
Servicer in maintaining any such insurance shall not, for the purpose of
calculating monthly distributions to the Certificateholders or remittances to
the Trustee for their benefit, be added to the principal balance of the
Mortgage Loan, notwithstanding that the terms of the Mortgage Loan so permit.
Such costs shall be recoverable by the Master Servicer out of late payments by
the related Mortgagor or out of Liquidation Proceeds to the extent permitted by
Section 3.08 hereof. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property is located at the
time of origination of the Mortgage Loan in a federally designated special
flood hazard area and such area is participating in the national flood
insurance program, the Master Servicer shall cause flood insurance to be
maintained with respect to such Mortgage Loan. Such flood insurance shall be in
an amount equal to the lesser of (i) the Stated Principal Balance of the
related Mortgage Loan, (ii) minimum amount required to compensate for damage or
loss on a replacement cost basis, or (iii) the maximum amount of such insurance
available for the related Mortgaged Property under the Flood Disaster
Protection Act of 1973, as amended.
In the event that the Master Servicer shall obtain and maintain a
blanket policy insuring against hazard losses on all of the Mortgage Loans, it
shall conclusively be deemed to have satisfied its obligations as set forth in
the first sentence of this Section 3.10, it being understood and agreed that
such policy may contain a deductible clause on terms substantially equivalent
to those commercially available and maintained by comparable servicers. If such
policy contains a deductible clause, the Master Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property a
policy complying with the first sentence of this Section 3.10, and there shall
have been a loss that would have been covered by such policy, deposit in the
Certificate Account the amount not otherwise payable under the blanket policy
because of such deductible clause. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees to
present, on behalf of itself, the Depositor and the Trustee for the benefit of
the Certificateholders, claims under any such blanket policy.
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.11(a), when any
property subject to a Mortgage has been or is about to be conveyed by the
Mortgagor, the Master Servicer shall to the extent that it has knowledge of
such conveyance, enforce any due-on-sale clause contained in any Mortgage Note
or Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer is not required to exercise
such rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies
the terms and conditions contained in the Mortgage Note and Mortgage related
thereto and the consent of the mortgagee under such Mortgage Note or Mortgage
is not otherwise so required under such Mortgage Note or Mortgage as a
condition to such transfer. In the event that the Master Servicer is prohibited
by law from enforcing any such due-on-sale clause, or if coverage under any
Required Insurance Policy would be adversely affected, or if nonenforcement is
otherwise permitted hereunder, the Master Servicer is authorized, subject to
Section 3.11(b), to take or enter into an assumption and modification agreement
from or with the person to whom such property has been or is about to be
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, unless prohibited by applicable state law, the Mortgagor remains liable
thereon, provided that the Mortgage Loan shall continue to be covered (if so
covered before the Master Servicer enters such agreement) by the applicable
Required Insurance Policies. The Master Servicer, subject to Section 3.11(b),
is also authorized with the prior approval of the insurers under any Required
Insurance Policies to enter into a substitution of liability agreement with
such Person, pursuant to which the original Mortgagor is released from
liability and such Person is substituted as Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the foregoing, the Master Servicer shall not
be deemed to be in default under this Section 3.11(a) by reason of any transfer
or assumption that the Master Servicer reasonably believes it is restricted by
law from preventing.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.11(a) hereof, in any case in which
a Mortgaged Property has been conveyed to a Person by a Mortgagor, and such
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver or cause to be prepared and delivered to the
Trustee for signature and shall direct, in writing, the Trustee to execute the
assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged Property
to such Person. In connection with any such assumption, no material term of the
Mortgage Note (including, but not limited to, the Mortgage Rate, the amount of
the Scheduled Payment, the Maximum Rate, the Minimum Rate, the Gross Margin,
the Periodic Rate Cap, the Adjustment Date and any other term affecting the
amount or timing of payment on the Mortgage Loan) may be changed. In addition,
the substitute Mortgagor and the Mortgaged Property must be acceptable to the
Master Servicer in accordance with its underwriting standards as then in
effect. The Master Servicer shall notify the Trustee that any such substitution
or assumption agreement has been completed by forwarding to the Trustee the
original of such substitution or assumption agreement, which in the case of the
original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. Any fee collected
by the Master Servicer for entering into an assumption or substitution of
liability agreement will be retained by the Master Servicer as additional
servicing compensation.
Section 3.12. Realization Upon Defaulted Mortgage Loans;
Determination of Excess Proceeds and Realized
Losses; Repurchase of Certain Mortgage Loans.
(a) The Master Servicer shall use reasonable efforts to foreclose
upon or otherwise comparably convert the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments. In
connection with such foreclosure or other conversion, the Master Servicer shall
follow such practices and procedures as it shall deem necessary or advisable
and as shall be normal and usual in its general mortgage servicing activities
and the requirements of the insurer under any Required Insurance Policy;
provided that the Master Servicer shall not be required to expend its own funds
in connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan after reimbursement
to itself of such expenses and (ii) that such expenses will be recoverable to
it through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Certificate Account pursuant to Section 3.08
hereof). The Master Servicer shall be responsible for all other costs and
expenses incurred by it in any such proceedings; provided that it shall be
entitled to reimbursement thereof from the proceeds of liquidation of the
related Mortgaged Property, as contemplated in Section 3.08 hereof. If the
Master Servicer has knowledge that a Mortgaged Property that the Master
Servicer is contemplating acquiring in foreclosure or by deed-in-lieu of
foreclosure is located within a one-mile radius of any site with environmental
or hazardous waste risks known to the Master Servicer, the Master Servicer
will, prior to acquiring the Mortgaged Property, consider such risks and only
take action in accordance with its established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders (or the Trustee's nominee on behalf of the
Certificateholders). The Trustee's name shall be placed on the title to such
REO Property solely as the Trustee hereunder and not in its individual
capacity. The Master Servicer shall ensure that the title to such REO Property
references this Agreement and the Trustee's capacity thereunder. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall either itself
or through an agent selected by the Master Servicer protect and conserve such
REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Certificateholders, rent
the same, or any part thereof, as the Master Servicer deems to be in the best
interest of the Master Servicer and the Certificateholders for the period prior
to the sale of such REO Property. The Master Servicer shall prepare for and
deliver to the Trustee a statement with respect to each REO Property that has
been rented showing the aggregate rental income received and all expenses
incurred in connection with the management and maintenance of such REO Property
at such times as is necessary to enable the Trustee to comply with the
reporting requirements of the REMIC Provisions. The net monthly rental income,
if any, from such REO Property shall be deposited in the Certificate Account no
later than the close of business on each Determination Date. The Master
Servicer shall perform the tax reporting and withholding related to
foreclosures, abandonments and cancellation of indebtedness income as specified
by Sections 1445, 6050J and 6050P of the Code by preparing and filing such tax
and information returns, as may be required.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property
prior to three years after its acquisition by the Trust Fund or, at the expense
of the Trust Fund, request more than 60 days prior to the day on which such
three-year period would otherwise expire, an extension of the three-year grace
period unless the Trustee shall have been supplied with an Opinion of Counsel
(such opinion not to be an expense of the Trustee) to the effect that the
holding by the Trust Fund of such Mortgaged Property subsequent to such
three-year period will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund as defined in section 860F of the Code or cause
the Trust Fund to fail to qualify as a REMIC at any time that any Certificates
are outstanding, in which case the Trust Fund may continue to hold such
Mortgaged Property (subject to any conditions contained in such Opinion of
Counsel). Notwithstanding any other provision of this Agreement, no Mortgaged
Property acquired by the Trust Fund shall be rented (or allowed to continue to
be rented) or otherwise used for the production of income by or on behalf of
the Trust Fund in such a manner or pursuant to any terms that would (i) cause
such Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of section 860G(a)(8) of the Code or (ii) subject the Trust Fund to the
imposition of any federal, state or local income taxes on the income earned
from such Mortgaged Property under section 860G(c) of the Code or otherwise,
unless the Master Servicer has agreed to indemnify and hold harmless the Trust
Fund with respect to the imposition of any such taxes.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of such foreclosure would exceed the costs and expenses of
bringing such a proceeding. The income earned from the management of any
Mortgaged Properties acquired through foreclosure or other judicial proceeding,
net of reimbursement to the Master Servicer for expenses incurred (including
any property or other taxes) in connection with such management and net of
unreimbursed Servicing Fees, Advances, Servicing Advances and any management
fee paid or to be paid with respect to the management of such Mortgaged
Property, shall be applied to the payment of principal of, and interest on, the
related defaulted Mortgage Loans (with interest accruing as though such
Mortgage Loans were still current) and all such income shall be deemed, for all
purposes in this Agreement, to be payments on account of principal and interest
on the related Mortgage Notes and shall be deposited into the Certificate
Account. To the extent the income received during a Prepayment Period is in
excess of the amount attributable to amortizing principal and accrued interest
at the related Mortgage Rate on the related Mortgage Loan, such excess shall be
considered to be a partial Principal Prepayment for all purposes hereof.
The Liquidation Proceeds from any liquidation of a Mortgage Loan, net
of any payment to the Master Servicer as provided above, shall be deposited in
the Certificate Account on the next succeeding Determination Date following
receipt thereof for distribution on the related Distribution Date, except that
any Excess Proceeds shall be retained by the Master Servicer as additional
servicing compensation.
The proceeds of any Liquidated Loan, as well as any recovery
resulting from a partial collection of Liquidation Proceeds or any income from
an REO Property, will be applied in the following order of priority: first, to
reimburse the Master Servicer for any related unreimbursed Servicing Advances
and Servicing Fees, pursuant to Section 3.08(a)(v) or this Section 3.12;
second, to reimburse the Master Servicer for any unreimbursed Advances,
pursuant to Section 3.08(a)(ii) or this Section 3.12; third, to accrued and
unpaid interest (to the extent no Advance has been made for such amount) on the
Mortgage Loan or related REO Property, at the Net Mortgage Rate to the Due Date
occurring in the month in which such amounts are required to be distributed;
and fourth, as a recovery of principal of the Mortgage Loan.
(b) On each Determination Date, the Master Servicer shall determine
the respective aggregate amounts of Excess Proceeds and Realized Losses, if
any, for the related Prepayment Period.
(c) The Master Servicer, in its sole discretion, shall have the right
to elect (by written notice sent to the Trustee) to purchase for its own
account from the Trust Fund any Mortgage Loan that is 91 days or more
delinquent at a price equal to the Purchase Price. The Purchase Price for any
Mortgage Loan purchased hereunder shall be delivered to the Trustee for deposit
in the Certificate Account and the Trustee, upon receipt of such deposit and a
Request for Release from the Master Servicer in the form of Exhibit N hereto,
shall release or cause to be released to the purchaser of such Mortgage Loan
the related Mortgage File and shall execute and deliver such instruments of
transfer or assignment prepared by the purchaser of such Mortgage Loan, in each
case without recourse, as shall be necessary to vest in the purchaser of such
Mortgage Loan any Mortgage Loan released pursuant hereto and the purchaser of
such Mortgage Loan shall succeed to all the Trustee's right, title and interest
in and to such Mortgage Loan and all security and documents related thereto.
Such assignment shall be an assignment outright and not for security. The
purchaser of such Mortgage Loan shall thereupon own such Mortgage Loan, and all
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
Section 3.13. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will promptly notify
the Trustee by delivering a Request for Release substantially in the form of
Exhibit N. Upon receipt of such request, the Trustee shall promptly release the
related Mortgage File to the Master Servicer, and the Trustee shall at the
Master Servicer's direction execute and deliver to the Master Servicer the
request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage in each case
provided by the Master Servicer, together with the Mortgage Note with written
evidence of cancellation thereon. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account, the Distribution Account, the Fixed Rate Carryover Reserve
Fund, the Adjustable Rate Carryover Reserve Fund or the related subservicing
account. From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose, collection under
any policy of flood insurance any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee shall, upon delivery to the Trustee of a Request for Release
in the form of Exhibit M signed by a Servicing Officer, release the Mortgage
File to the Master Servicer. Subject to the further limitations set forth
below, the Master Servicer shall cause the Mortgage File or documents so
released to be returned to the Trustee when the need therefor by the Master
Servicer no longer exists, unless the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the Certificate Account, in which case the
Trustee shall deliver the Request for Release to the Master Servicer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master Servicer shall deliver or cause to be delivered to the
Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity. Notwithstanding the foregoing, the
Master Servicer shall cause possession of any Mortgage File or of the documents
therein that shall have been released by the Trustee to be returned to the
Trustee within 21 calendar days after possession thereof shall have been
released by the Trustee unless (i) the Mortgage Loan has been liquidated and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited in
the Certificate Account, and the Master Servicer shall have delivered to the
Trustee a Request for Release in the form of Exhibit N or (ii) the Mortgage
File or document shall have been delivered to an attorney or to a public
trustee or other public official as required by law for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property and the Master Servicer shall have delivered to the Trustee
an Officer's Certificate of a Servicing Officer certifying as to the name and
address of the Person to which the Mortgage File or the documents therein were
delivered and the purpose or purposes of such delivery.
Section 3.14. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or that otherwise are
collected by the Master Servicer as Liquidation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, the Master Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds, including but not limited to, any funds on deposit in the
Certificate Account, shall be held by the Master Servicer for and on behalf of
the Trustee and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer also agrees that it shall not create, incur or subject any Mortgage
File or any funds that are deposited in the Certificate Account, Distribution
Account, Fixed Rate Carryover Reserve Fund or Adjustable Rate Carryover Reserve
Fund or in any Escrow Account (as defined in Section 3.06), or any funds that
otherwise are or may become due or payable to the Trustee for the benefit of
the Certificateholders, to any claim, lien, security interest, judgment, levy,
writ of attachment or other encumbrance, or assert by legal action or otherwise
any claim or right of set off against any Mortgage File or any funds collected
on, or in connection with, a Mortgage Loan, except, however, that the Master
Servicer shall be entitled to set off against and deduct from any such funds
any amounts that are properly due and payable to the Master Servicer under this
Agreement.
Section 3.15. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer
shall be entitled to retain or withdraw from the Certificate Account out of
each payment of interest on a Mortgage Loan included in the Trust Fund an
amount equal to interest at the applicable Servicing Fee Rate on the Stated
Principal Balance of the related Mortgage Loan for the period covered by such
interest payment.
Additional servicing compensation in the form of any Excess Proceeds,
prepayment penalties, assumption fees, late payment charges, Prepayment
Interest Excess, and all income and gain net of any losses realized from
Permitted Investments shall be retained by the Master Servicer to the extent
not required to be deposited in the Certificate Account pursuant to Section
3.05 or 3.12(a) hereof. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any premiums for hazard insurance, as required by Section
3.10 hereof and maintenance of the other forms of insurance coverage required
by Section 3.10 hereof) and shall not be entitled to reimbursement therefor
except as specifically provided in Sections 3.08 and 3.12 hereof.
Section 3.16. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of the Certificates and
the examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall be
afforded without charge, but only upon reasonable and prior written request and
during normal business hours at the offices of the Master Servicer designated
by it. Nothing in this Section shall limit the obligation of the Master
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Master Servicer to provide
access as provided in this Section as a result of such obligation shall not
constitute a breach of this Section.
Section 3.17. Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee on
or before May 31 of each year commencing May 31, 2000, an Officer's Certificate
stating, as to the signer thereof, that (i) a review of the activities of the
Master Servicer during the preceding calendar year and of the performance of
the Master Servicer under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and (iii) to the best of such
officer's knowledge, each Subservicer has fulfilled all its obligations under
its Subservicing Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation specifying each such default
known to such officer and the nature and status thereof. The Trustee shall
forward a copy of each such statement to each Rating Agency. Copies of such
statement shall be provided by the Trustee to any Certificateholder upon
request at the Master Servicer's expense, provided such statement is delivered
by the Master Servicer to the Trustee.
Section 3.18. Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before the later of (i) May 31 of each year, beginning with May
31, 2000 or (ii) within 30 days of the issuance of the annual audited financial
statements beginning with the audit for the period ending in 2000, the Master
Servicer at its expense shall cause a nationally recognized firm of independent
public accountants (who may also render other services to the Master Servicer,
the Seller or any affiliate thereof) that is a member of the American Institute
of Certified Public Accountants to furnish a report to the Trustee, Depositor
and the Seller in compliance with the Uniform Single Attestation Program for
Mortgage Bankers. Copies of such report shall be provided by the Trustee to any
Certificateholder upon request at the Master Servicer's expense, provided such
report is delivered by the Master Servicer to the Trustee. Upon written
request, the Master Servicer shall provide to the Certificateholders its
publicly available annual financial statements (or, for so long as Countrywide
Home Loans, Inc. is the Master Servicer hereunder, the Master Servicer's parent
company's publicly available annual financial statements), if any, promptly
after they become available.
<PAGE>
ARTICLE IV.
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
Section 4.01. Advances.
Subject to the conditions of this Article IV, the Master Servicer, as
required below, shall make an Advance and deposit such Advance in the
Certificate Account. Each such Advance shall be remitted to the Certificate
Account no later than 1:00 p.m. Pacific time on the Master Servicer Advance
Date in immediately available funds. The Master Servicer shall be obligated to
make any such Advance only to the extent that such advance would not be a
Nonrecoverable Advance. If the Master Servicer shall have determined that it
has made a Nonrecoverable Advance or that a proposed Advance or a lesser
portion of such Advance would constitute a Nonrecoverable Advance, the Master
Servicer shall deliver (i) to the Trustee for the benefit of the
Certificateholders funds constituting the remaining portion of such Advance, if
applicable, and (ii) to the Depositor, each Rating Agency and the Trustee an
Officer's Certificate setting forth the basis for such determination.
In lieu of making all or a portion of such Advance from its own
funds, the Master Servicer may (i) cause to be made an appropriate entry in its
records relating to the Certificate Account that any Amount Held for Future
Distributions has been used by the Master Servicer in discharge of its
obligation to make any such Advance and (ii) transfer such funds from the
Certificate Account to the Distribution Account. Any funds so applied and
transferred shall be replaced by the Master Servicer by deposit in the
Certificate Account no later than the close of business on the Business Day
immediately preceding the Distribution Date on which such funds are required to
be distributed pursuant to this Agreement. The Master Servicer shall be
entitled to be reimbursed from the Certificate Account for all Advances of its
own funds made pursuant to this Section as provided in Section 3.08. The
obligation to make Advances with respect to any Mortgage Loan shall continue
until such Mortgage Loan is paid in full or the related Mortgaged Property or
related REO Property has been liquidated or until the purchase or repurchase
thereof (or substitution therefor) from the Trust Fund pursuant to any
applicable provision of this Agreement, except as otherwise provided in this
Section 4.01.
Section 4.02. Reduction of Servicing Compensation in Connection with
Prepayment Interest Shortfalls.
In the event that any Mortgage Loan is the subject of a Prepayment
Interest Shortfall, the Master Servicer shall, to the extent of one-half of the
Servicing Fee for such Distribution Date, deposit into the Certificate Account,
as a reduction of the Servicing Fee (but not in excess of one-half thereof) for
such Distribution Date, no later than the close of business on the Business Day
immediately preceding such Distribution Date, an amount equal to the Prepayment
Interest Shortfall; and in case of such deposit, the Master Servicer shall not
be entitled to any recovery or reimbursement from the Depositor, the Trustee,
the Trust Fund or the Certificateholders.
Section 4.03. REMIC Distributions.
On each Distribution Date the Trustee shall allocate distributions to
the REMIC 1F Regular Interests, the REMIC 1V Regular Interests, the REMIC 2
Regular Interests, the REMIC 3 Regular Interests, and the REMIC 4 Regular
Interests in accordance with Section 4.06 hereof.
Section 4.04. Distributions.
(a) On each Distribution Date, the Trustee shall make the following
allocations from the Distribution Account of an amount equal to the Fixed Rate
Interest Funds in the following order of priority (unless otherwise specified):
(i) to each Class of the Fixed Rate Class A Certificates, the Fixed
Rate Class A Current Interest and any Fixed Rate Class A Interest
Carryforward Amount for each such Class of Fixed Rate Class A
Certificates; provided that if the Fixed Rate Interest Funds are not
sufficient to make a full distribution of all Fixed Rate Class A Current
Interest and any Fixed Rate Class A Interest Carryforward Amount for all
Classes of Fixed Rate Class A Certificates, the Fixed Rate Interest Funds
will be distributed pro rata among each Class of the Fixed Rate Class A
Certificates based on the ratio of (x) the Fixed Rate Class A Current
Interest and any Fixed Rate Class A Interest Carryforward Amount for such
Class of the Fixed Rate Class A Certificates to (y) the total amount of
Fixed Rate Class A Current Interest and any Fixed Rate Class A Interest
Carryforward Amount for all Classes of Fixed Rate Class A Certificates;
(ii) to the Class MF-1 Certificates, the Class MF-1 Current Interest;
(iii) to the Class MF-2 Certificates, the Class MF-2 Current
Interest;
(iv) to the Class BF Certificates, the Class BF Current Interest; and
(v) any remainder shall constitute part of the Fixed Rate Excess
Cashflow for such Distribution Date.
(b) On each Distribution Date, the Trustee shall make the following
allocations from the Distribution Account of an amount equal to the Adjustable
Rate Interest Funds in the following order of priority:
(i) to the Class AV-1 Certificates, the Class AV-1 Current Interest
and any Class AV-1 Interest Carryforward Amount for the Class AV-1
Certificates;
(ii) to the Class MV-1 Certificates, the Class MV-1 Current Interest;
(iii) to the Class MV-2 Certificates, the Class MV-2 Current
Interest;
(iv) to the Class BV Certificates, the Class BV Current Interest; and
(v) any remainder shall constitute part of the Adjustable Rate Excess
Cashflow for such Distribution Date.
(c) On each Distribution Date, the Trustee shall make the following
allocation from the Distribution Account of an amount equal to the Fixed Rate
Principal Distribution Amount in the following order of priority:
(i) to the Fixed Rate Class A Certificates, the Fixed Rate Class A
Principal Distribution Amount to be distributed in the priority and as
provided in Section 4.04(d);
(ii) to the Class MF-1 Certificates, the Class MF-1 Principal
Distribution Amount;
(iii) to the Class MF-2 Certificates, the Class MF-2 Principal
Distribution Amount;
(iv) to the Class BF Certificates, the Class BF Principal
Distribution Amount; and
(v) any remainder shall constitute part of the Fixed Rate Excess
Cashflow for such Distribution Date.
(d) On each Distribution Date, the Fixed Rate Class A Principal
Distribution Amount allocated under Section 4.04(c)(i) to the Fixed Rate Class
A Certificates is required to be further allocated by the Trustee to the Fixed
Rate Class A Certificates in the following priority: first to the Class AF-6
Certificates, the Class AF-6 Principal Distribution Amount, and then the
remainder sequentially to the Class AF-1, Class AF-2, Class AF-3 , Class AF-4,
Class AF-5 and Class AF-6 Certificates, in that order until the respective
Certificate Principal Balances thereof are reduced to zero; provided that on
any Distribution Date on which the Fixed Rate Class A Certificate Principal
Balance is greater than the Stated Principal Balance as of such Distribution
Date of the Fixed Rate Mortgage Loans, the Fixed Rate Class A Principal
Distribution Amount will be distributed pro rata and not sequentially.
(e) On each Distribution Date, the Trustee shall make the following
allocations from the Distribution Account of an amount equal to the Adjustable
Rate Principal Distribution Amount in the following order of priority:
(i) to the Class AV-1 Certificates, the Adjustable Rate Class A
Principal Distribution Amount;
(ii) to the Class MV-1 Certificates, the Class MV-1 Principal
Distribution Amount;
(iii) to the Class MV-2 Certificates, the Class MV-2 Principal
Distribution Amount;
(iv) to the Class BV Certificates, the Class BV Principal
Distribution Amount; and
(v) any remainder shall constitute part of the Adjustable Rate Excess
Cashflow for such Distribution Date.
(f) On each Distribution Date, the Trustee shall make the following
allocations from the Distribution Account of, first, the Fixed Rate Excess
Cashflow and, second, of the Adjustable Rate Remainder Excess Cashflow, in the
following order of priority:
(i) for distribution as part of the Fixed Rate Principal Distribution
Amount, the Fixed Rate Extra Principal Distribution Amount;
(ii) to the Class MF-1 Certificates, the Class MF-1 Interest
Carryforward Amount;
(iii) to the Class MF-1 Certificates, the Class MF-1 Unpaid Realized
Loss Amount;
(iv) to the Class MF-2 Certificates, the Class MF-2 Interest
Carryforward Amount;
(v) to the Class MF-2 Certificates, the Class MF-2 Unpaid Realized
Loss Amount;
(vi) to the Class BF Certificates, the Class BF Interest Carryforward
Amount;
(vii) to the Class BF Certificates, the Class BF Unpaid Realized Loss
Amount; and
(viii) the remainder (except for amounts representing Adjustable Rate
Remainder Excess Cashflow) shall constitute Fixed Rate Remainder Excess
Cashflow and shall be allocated as provided in Section 4.04(f).
(g) On each Distribution Date, the Trustee shall make the following
allocations from the Distribution Account of, first, the Adjustable Rate Excess
Cashflow and, second, of the Fixed Rate Remainder Excess Cashflow, in the
following order of priority:
(i) for distribution as part of the Adjustable Rate Principal
Distribution Amount, the Adjustable Rate Extra Principal Distribution
Amount;
(ii) to the Class MV-1 Certificates, the Class MV-1 Interest
Carryforward Amount;
(iii) to the Class MV-1 Certificates, the Class MV-1 Unpaid Realized
Loss Amount;
(iv) to the Class MV-2 Certificates, the Class MV-2 Interest
Carryforward Amount;
(v) to the Class MV-2 Certificates, the Class MV-2 Unpaid Realized
Loss Amount;
(vi) to the Class BV Certificates, the Class BV Interest Carryforward
Amount;
(vii) to the Class BV Certificates, the Class BV Unpaid Realized Loss
Amount; and
(viii) the remainder (except for amounts representing Fixed Rate
Remainder Excess Cashflow) shall constitute Adjustable Rate Remainder
Excess Cashflow and shall be allocated as provided in Section 4.04(g).
(h) On each Distribution Date the Trustee shall make the following
allocations from the Distribution Account of the Fixed Rate Remainder Excess
Cashflow in the following order of priority:
(i) for allocation pursuant to Section 4.04(g);
(ii) to the Fixed Rate Carryover Reserve Fund and then pro rata to
the holders of the Fixed Rate Certificates in an amount equal to any Fixed
Net Rate Carryover for such Class;
(iii) to the Fixed Rate Carryover Reserve Fund, an amount equal to
the Required Fixed Rate Carryover Reserve Fund Deposit;
(iv) to the Class BF-IO Certificates, the Class BF-IO Distributable
Amount; together with any amounts withdrawn from the Fixed Rate Carryover
Reserve Fund for distribution to the Class BF-IO Certificates pursuant to
Section 4.09(c) on such date;
(v) to the Class BF-IO Certificates, the Class BF-IO Distributable
Amount;
(vi) to the Master Servicer, in payment of the Extra Master Servicing
Fee pursuant to Section 4.08 hereof for such Distribution Date; and
(vii) any remainder to the Class R Certificates.
(i)On each Distribution Date the Trustee shall make the following
allocations from the Distribution Account of the Adjustable Rate Remainder
Excess Cashflow in the following order of priority:
(i) for allocation pursuant to Section 4.04(f);
(ii) to the Adjustable Rate Carryover Reserve Fund and then pro rata
to the holders of the Adjustable Rate Certificates in an amount equal to
any Adjustable Rate Certificate Carryover for such Class;
(iii) to the Adjustable Rate Carryover Reserve Fund, an amount equal
to the Required Adjustable Rate Carryover Reserve Fund Deposit; (iv) to
the Class BV-IO Certificates, the Class BV-IO Distributable Amount;
together with any amounts withdrawn from the Adjustable Rate Carryover
Reserve Fund for distribution to the Class BV-IO Certificates pursuant to
Section 4.08(c) and (d) on such date;
(v) to the Master Servicer, in payment of the Extra Master Servicing
Fee for such Distribution Date pursuant to Section 4.07 hereof; and
(vi) any remainder to the Class R Certificates.
(j) To the extent that any of the Class AF-4, Class AF-5 and Class
AF-6 Certificates receive interest in excess of the Fixed Net Rate Cap, such
interest shall be treated as having been paid to the Fixed Rate Carryover
Reserve Fund and then paid by the Fixed Rate Carryover Reserve Fund to such
Certificateholders. Amounts deposited to the Fixed Rate Carryover Reserve Fund
pursuant to this clause and the preceding clauses (h)(ii) and (iii) shall be
deemed to have been distributed first to the Class BF-IO Certificateholders for
applicable tax purposes.
(k) To the extent that a Class of Adjustable Rate Certificates
receives interest in excess of the Weighted Maximum Rate Cap, such interest
shall be treated as having been paid to the Adjustable Rate Carryover Reserve
Fund and then paid by the Adjustable Rate Carryover Reserve Fund to such
Certificateholders. Amounts deposited to the Adjustable Rate Carryover Reserve
Fund pursuant to this clause and the preceding clauses (i)(ii) and (iii) shall
be deemed to have been distributed first to the Class BV-IO Certificateholders
for applicable tax purposes.
(l) On each Distribution Date, the Trustee shall allocate the Applied
Realized Loss Amount for the Fixed Rate Certificates to reduce the Certificate
Principal Balances of the Fixed Rate Subordinated Certificates in the following
order of priority:
(i) to the Class BF Certificates until the Class BF Certificate
Principal Balance is reduced to zero;
(ii) to the Class MF-2 Certificates until the Class MF-2 Certificate
Principal Balance is reduced to zero; and
(iii) to the Class MF-1 Certificates until the Class MF-1 Certificate
Principal Balance is reduced to zero.
(m) On each Distribution Date, the Trustee shall allocate the Applied
Realized Loss Amount for the Adjustable Rate Certificates to reduce the
Certificate Principal Balances of the Adjustable Rate Subordinated Certificates
in the following order of priority:
(i) to the Class BV Certificates until the Class BV Certificate
Principal Balance is reduced to zero;
(ii) to the Class MV-2 Certificates until the Class MV-2 Certificate
Principal Balance is reduced to zero; and
(iii) to the Class MV-1 Certificates until the Class MV-1 Certificate
Principal Balance is reduced to zero.
(n) Subject to Section 9.02 hereof respecting the final distribution,
on each Distribution Date the Trustee shall make distributions to each
Certificateholder of record on the preceding Record Date either by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if (i) such Holder has
so notified the Trustee at least 5 Business Days prior to the related Record
Date and (ii) such Holder shall hold Regular Certificates with aggregate
principal denominations of not less than $1,000,000 or evidencing a Percentage
Interest aggregating 10% or more with respect to such Class or, if not, by
check mailed by first class mail to such Certificateholder at the address of
such holder appearing in the Certificate Register. Notwithstanding the
foregoing, but subject to Section 9.02 hereof respecting the final
distribution, distributions with respect to Certificates registered in the name
of a Depository shall be made to such Depository in immediately available
funds.
On or before 5:00 p.m. Pacific time on the fifth Business Day
following each Determination Date (but in no event later than 5:00 p.m. Pacific
time on the third Business Day before the related Distribution Date), the
Master Servicer shall deliver a report to the Trustee in the form of a computer
readable magnetic tape (or by such other means as the Master Servicer and the
Trustee may agree from time to time) containing such data and information as
agreed to by the Master Servicer and the Trustee such as to permit the Trustee
to prepare the Monthly Statement to Certificateholders and make the required
distributions for the related Distribution Date (the "Remittance Report"). The
Trustee shall, not later than 9:00 a.m. Pacific time on the Master Servicer
Advance Date, other than any Master Servicer Advance Date relating to any
Distribution Date on which the proceeds of any Optional Termination are being
distributed, (i) furnish by telecopy a statement to the Master Servicer (the
information in such statement to be made available to Certificateholders by the
Trustee on request) setting forth the Fixed Rate Interest Funds, Fixed Rate
Principal Funds, Adjustable Rate Interest Funds and Adjustable Rate Principal
Funds for such Distribution Date and the amount to be withdrawn from the
Certificate Account and (ii) determine (and notify the Master Servicer by
telecopy of the results of such determination) the amount of Advances to be
made by the Master Servicer in respect of the related Distribution Date;
provided that no Advance shall be made if it would be a Nonrecoverable Advance;
provided further that any failure by the Trustee to notify the Master Servicer
will not relieve the Master Servicer from any obligation to make any such
Advances. The Trustee shall not be responsible to recompute, recalculate or
verify information provided to it by the Master Servicer and shall be permitted
to conclusively rely on any information provided to it by the Master Servicer.
Section 4.05. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare
and cause to be forwarded by first class mail to each Holder of a Class of
Certificates of the Trust Fund, the Master Servicer and the Depositor a
statement setting forth for the Certificates:
(i) the amount of the related distribution to Holders of each Class
allocable to principal, separately identifying (A) the aggregate amount of
any Principal Prepayments included therein, (B) the aggregate of all
scheduled payments of principal included therein and (C) the Fixed Rate
Extra Principal Distribution Amount (if any) and the Adjustable Rate Extra
Principal Distribution Amount (if any);
(ii) the amount of such distribution to Holders of each Class
allocable to interest;
(iii) the Class Certificate Principal Balance of each Class after
giving effect (i) to all distributions allocable to principal on such
Distribution Date and (ii) the allocation of any Applied Realized Loss
Amounts for such Distribution Date;
(iv) the aggregate of the Stated Principal Balance of the Mortgage
Loans for each Loan Group for the following Distribution Date;
(v) the related amount of the Servicing Fees paid to or retained by
the Master Servicer;
(vi) the Pass-Through Rate for each Class of Certificates with
respect to the current Accrual Period;
(vii) any Interest Carryforward Amount for each such Class;
(viii) the Fixed Net Rate and the Adjustable Net Rate;
(ix) the amount of Advances for each Certificate Group included in
the distribution on such Distribution Date;
(x) the cumulative amount of Applied Realized Loss Amounts for each
Certificate Group to date;
(xi) the number and aggregate principal amounts of Mortgage Loans in
each Loan Group (A) delinquent (exclusive of Mortgage Loans in
foreclosure) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days,
and (B) in foreclosure and delinquent (1) 30 to 59 days, (2) 60 to 89 days
and (3) 90 or more days, in each case as of the close of business on the
last day of the calendar month preceding such Distribution Date;
(xii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month in each Loan Group, the loan number
and Stated Principal Balance of such Mortgage Loan as of the close of
business on the Determination Date preceding such Distribution Date and
the date of acquisition thereof;
(xiii) the total number and principal balance of any REO Properties
in each Loan Group as of the close of business on the Determination Date
preceding such Distribution Date;
(xiv) the Stated Principal Balance of all Liquidated Loans in each
Loan Group;
(xv) with respect to any Liquidated Loan in each Loan Group, the loan
number and Stated Principal Balance relating thereto;
(xvi) with respect to each Loan Group, whether a Trigger Event has
occurred;
(xvii) any Fixed Net Rate Carryover paid and any remaining Fixed Net
Rate Carryover remaining on the Fixed Rate Certificates on such
Distribution Date;
(xviii) any Adjustable Rate Certificate Carryover paid and any
remaining Adjustable Rate Certificate Carryover remaining on each Class of
Adjustable Rate Certificates on such Distribution Date; and
(xix) with respect to the second Distribution Date, the number and
aggregate balance of any Delay Delivery Mortgage Loans not delivered
within thirty (30) days after the Closing Date.
(b) The Trustee's responsibility for disbursing the above information
to the Certificateholders is limited to the availability, timeliness and
accuracy of the information derived from the Master Servicer. The Trustee will
send a copy of each statement provided pursuant to this Section 4.05 to each
Rating Agency.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(i), (a)(ii) and (a)(vi) of this Section
4.05 aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of
the Code as from time to time in effect.
(d) Upon filing with the Internal Revenue Service, the Trustee shall
furnish to the Holders of the Class R Certificates the Form 1066 and each Form
1066Q and shall respond promptly to written requests made not more frequently
than quarterly by any Holder of Class R Certificates with respect to the
following matters:
(i) The original projected principal and interest cash flows on the
Closing Date on each Class of regular and residual interests created
hereunder and on the Mortgage Loans, based on the Prepayment Assumption;
(ii) The projected remaining principal and interest cash flows as of
the end of any calendar quarter with respect to each Class of regular and
residual interests created hereunder and the Mortgage Loans, based on the
Prepayment Assumption;
(iii) The applicable Prepayment Assumption and any interest rate
assumptions used in determining the projected principal and interest cash
flows described above;
(iv) The original issue discount (or, in the case of the Mortgage
Loans, market discount) or premium accrued or amortized through the end of
such calendar quarter with respect to each Class of regular or residual
interests created hereunder and to the Mortgage Loans, together with each
constant yield to maturity used in computing the same;
(v) The treatment of losses realized with respect to the Mortgage
Loans or the regular interests created hereunder, including the timing and
amount of any cancellation of indebtedness income of the REMIC with
respect to such regular interests or bad debt deductions claimed with
respect to the Mortgage Loans;
(vi) The amount and timing of any non-interest expenses of the REMIC;
and
(vii) Any taxes (including penalties and interest) imposed on the
REMIC, including, without limitation, taxes on "prohibited transactions,"
"contributions" or "net income from foreclosure property" or state or
local income or franchise taxes.
The information pursuant to clauses (i), (ii), (iii) and (iv) above
shall be provided by the Depositor pursuant to Section 8.11.
Section 4.06. REMIC 1F, REMIC 1V, REMIC 2, REMIC 3, and REMIC 4
Allocations.
(a) The initial principal balances of the Class T1-F1, Class T1-F2,
and Class T1-F3 Interests shall equal 98%, 1%, and 1%, respectively, of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date. On each Distribution Date, 98% of all Fixed Rate Principal Funds for the
related Due Period shall be allocated to the Class T1-F1 Interest. Remaining
amounts of Fixed Rate Principal Funds for the related Due Period shall be
allocated first to the Class T1-F3 Interest up to an amount equal to 2% of any
amount that represents a Fixed Rate Adjusted Overcollateralization Release
Amount with respect to such Distribution Date and then equally between the
Class T1-F2 and Class T1-F3 Interests. Interest accruing on the Class T1-F3
Interest in respect of each Distribution Date in an amount equal to 1% of the
increase in the Fixed Rate Adjusted Overcollateralization Amount from the
immediately preceding Distribution Date shall be deferred and added to the
principal balance of the Class T1-F3 Interest. The amount of interest accrued
and deferred on the Class T1-F3 Interest in accordance with the preceding
sentence in respect of each Distribution Date shall be distributed as principal
on such date to the Class T1-F2 Interest.
(b) On each Distribution Date, Realized Losses with respect to the
Fixed Rate Mortgage Loans for such date shall be allocated 98% to the Class
T1-F1 Interest. The remaining 2% of such Realized Losses shall be allocated to
the Class T1-F3 Interest to the extent that the principal balance of the Class
T1-F3 Interest exceeds 1% of the aggregate of the Stated Principal Balance of
the Fixed Rate Mortgage Loans as of such date and then equally between the
Class T1-F2 and Class T1-F3 Interests.
(c) The initial principal balances of the Class T1-V1, Class T1-V2,
and Class T1-V3 Interests shall equal 98%, 1%, and 1%, respectively, of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date. On each Distribution Date, 98% of all Adjustable Rate Principal
Funds for the related Due Period shall be allocated to the Class T1-V1
Interest. Remaining amounts of Adjustable Rate Principal Funds for the related
Due Period shall be allocated first to the Class T1-V3 Interest up to an amount
equal to 2% of any amount that represents an Adjustable Rate Adjusted
Overcollateralization Release Amount with respect to such Distribution Date and
then equally between the Class T1-V2 and Class T1-V3 Interests. Interest
accruing on the Class T1-V3 Interest in respect of each Distribution Date in an
amount equal to 1% of the increase in the Adjustable Rate Adjusted
Overcollateralization Amount from the immediately preceding Distribution Date
shall be deferred and added to the principal balance of the Class T1-V3
Interest. The amount of interest accrued and deferred on the Class T1-V3
Interest in accordance with the preceding sentence in respect of each
Distribution Date shall be distributed as principal on such date to the Class
T1-V2 Interest.
(d) On each Distribution Date, Realized Losses with respect to the
Adjustable Rate Mortgage Loans for such date shall be allocated 98% to the
Class T1-V1 Interest. The remaining 2% of such Realized Losses shall be
allocated to the Class T1-V3 Interest to the extent that the principal balance
of the Class T1-V3 Interest exceeds 1% of the aggregate of the Stated Principal
Balance of the Adjustable Rate Mortgage Loans as of such date and then equally
between the Class T1-V2 and Class T1-V3 Interests.
(e) The initial principal balances of the Class T2-F1, Class T2-F2,
and Class T2-F3 Interests shall equal 98%, 1%, and 1%, respectively, of the
Stated Principal Balance of the Fixed Rate Mortgage Loans as of the Cut-off
Date. The Class T2-F4 Interest shall not have a principal balance. On each
Distribution Date, 98% of all Fixed Rate Principal Funds for the related Due
Period shall be allocated to the Class T2-F1 Interest. Remaining amounts of
Fixed Rate Principal Funds for the related Due Period shall be allocated first
to the Class T2-F3 Interest up to an amount equal to 2% of any amount that
represents a Fixed Rate Adjusted Overcollateralization Release Amount with
respect to such Distribution Date and then equally between the Class T2-F2 and
Class T2-F3 Interests. Interest accruing on the Class T2-F3 Interest in respect
of each Distribution Date in an amount equal to 1% of the increase in the Fixed
Rate Adjusted Overcollateralization Amount from the immediately preceding
Distribution Date shall be deferred and added to the principal balance of the
Class T2-F3 Interest. The amount of interest accrued and deferred on the Class
T2-F3 Interest in accordance with the preceding sentence in respect of each
Distribution Date shall be distributed as principal on such date to the Class
T2-F2 Interest.
(f) On each Distribution Date, Realized Losses with respect to the
Fixed Rate Mortgage Loans for such date shall be allocated 98% to the Class
T2-F1 Interest. The remaining 2% of such Realized Losses shall be allocated to
the Class T2-F3 Interest to the extent that the principal balance of the Class
T2-F3 Interest exceeds 1% of the aggregate of the Stated Principal Balance of
the Fixed Rate Mortgage Loans as of such date and then equally between the
Class T2-F2 and Class T2-F3 Interests.
(g) The initial principal balances of the Class T2-V1, Class T2-V2,
and Class T2-V3 Interests shall equal 98%, 1%, and 1%, respectively, of the
Stated Principal Balance of the Adjustable Rate Mortgage Loans as of the
Cut-off Date. The Class T2-V4 Interest shall not have a principal balance. On
each Distribution Date, 98% of all Adjustable Rate Principal Funds for the
related Due Period shall be allocated to the Class T2-V1 Interest. Remaining
amounts of Adjustable Rate Principal Funds for the related Due Period shall be
allocated first to the Class T2-V3 Interest up to an amount equal to 2% of any
amount that represents an Adjustable Rate Adjusted Overcollateralization
Release Amount with respect to such Distribution Date and then equally between
the Class T2-V2 and Class T2-V3 Interests. Interest accruing on the Class T2-V3
Interest in respect of each Distribution Date in an amount equal to 1% of the
increase in the Adjustable Rate Adjusted Overcollateralization Amount from the
immediately preceding Distribution Date shall be deferred and added to the
principal balance of the Class T2-V3 Interest. The amount of interest accrued
and deferred on the Class T2-V3 Interest in accordance with the preceding
sentence in respect of each Distribution Date shall be distributed as principal
on such date to the Class T2-V2 Interest.
(h) On each Distribution Date, Realized Losses with respect to the
Adjustable Rate Mortgage Loans for such date shall be allocated 98% to the
Class T2-V1 Interest. The remaining 2% of such Realized Losses shall be
allocated to the Class T2-V3 Interest to the extent that the principal balance
of the Class T2-V3 Interest exceeds 1% of the aggregate of the Stated Principal
Balance of the Adjustable Rate Mortgage Loans as of such date and then equally
between the Class T2-V2 and Class T2-V3 Interests.
(i) On each Distribution Date, the Class T3-F1, Class T3-F2, Class
T3-F3, Class T3-F4, Class T3-F5, Class T3-F6, Class T3-F7, Class T3-F8, Class
T3-F9, Class T3-V1, Class T3-V2, Class T3-V3 and Class T3-V4 Interests shall be
entitled to receive principal distributions that correspond to the principal
distributions on the corresponding class of Interests in REMIC 4 (the Class
T4-F1, Class T4-F2, Class T4-F3, Class T4-F4, Class T4-F5, Class T4-F6, Class
T4-F7, Class T4-F8, Class T4-F9, Class T4-V1, Class T4-V2, Class T4-V3, and
Class T4-V4 Interests, respectively).
(j) On each Distribution Date, interest that accrues with respect to
the Class T3-F10, Class T3-F11 and Class T3-F12 Interests shall be distributed
as principal on the Class T3-F1, Class T3-F2, Class T3-F3, Class T3-F4, Class
T3-F5, Class T3-F6, Class T3-F7, Class T3-F8 and Class T3-F9 Interests to
achieve the Fixed Rate Specified Overcollateralization Amount for such
Distribution Date, and to the extent not needed for this purpose, shall be
distributed as principal on the Class T3-V1, Class T3-V2, Class T3-V3, and
Class T3-V4 Interests to achieve the Fixed Rate Specified Overcollateralization
Amount for such Distribution Date, and to the extent not needed for either
purpose, shall be distributed with respect to the Class T3-F10, Class T3-F11
and Class T3-F12 Interests in proportion to their entitlements to current and
accrued undistributed interest. On each Distribution Date, interest that
accrues with respect to the Class T3-V5, Class T3-V6, and Class T3-V7 Interests
shall be distributed as principal on the Class T3-V1, Class T3-V2, Class T3-V3,
and Class T3-V4 Interests to achieve the Adjustable Rate Specified
Overcollateralization Amount for such Distribution Date, and to the extent not
needed for this purpose, shall be distributed as principal on the Class T3-F1,
Class T3-F2, Class T3-F3, Class T3-F4, Class T3-F5, Class T3-F6, Class T3-F7,
Class T3-F8, and Class T3-F9 Interests to achieve the Adjustable Rate Specified
Overcollaterization Amount for such Distribution Date, and to the extent not
needed for either purpose, shall be distributed with respect to the Class
T3-V5, Class T3-V6, and Class T3-V7 Interests in proportion to their
entitlements to current and accrued undistributed interest. Interest that
accrues on the Class T3-F10, Class T3-F11, Class T3-F12, Class T3-V5, Class
T3-V6, and Class T3-V7 Interests shall not itself bear interest.
Notwithstanding any provision herein, on any Distribution Date, (1)
in no event shall the interest that accrues with respect to the Class T3-V5,
Class T3-V6, and Class T3-V7 Interests that is distributed as principal on the
Class T3-F1, Class T3-F2, Class T3-F3, Class T3-F4, Class T3-F5, Class T3-F6,
Class T3-F7, Class T3-F8, and Class T3-F9 Interests to achieve the Fixed Rate
Specified Overcollateralization Amount for such Distribution Date exceed an
amount equal to the difference between (a) the product of (i) the aggregate of
the principal balances of the Fixed Rate Mortgage Loans and (ii) the related
Fixed Rate Net Rate and (b) the amount of interest accruing on the Class
T3-F10, Class T3-F11, and Class T3-F12 Interests for such Distribution Date and
(2) in no event shall the interest that accrues with respect to the Class
T3-F10, Class T3-F11, and Class T3-F12 Interests that is distributed as
principal on the Class T3-V1, Class T3-V2, Class T3-V3 and Class T3-V4
Interests to achieve the Adjustable Rate Specified Overcollateralization Amount
for such Distribution Date exceed an amount equal to the difference between (a)
the product of (i) the aggregate of the principal balances of the Adjustable
Rate Mortgage Loans and (ii) the related Adjustable Net Rate and (b) the amount
of interest accruing on the Class T3-V5, Class T3-V6 and Class T3-V7 Interests
for such Distribution Date.
(k) On each Distribution Date, Realized Losses with respect to the
Fixed Rate Mortgage Loans shall be allocated as follows:
FIRST, to the Class T3-F1 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F1 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
SECOND, to the Class T3-F2 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F2 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
THIRD, to the Class T3-F3 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F3 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
FOURTH, to the Class T3-F4 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F4 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
FIFTH, to the Class T3-F5 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F5 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
SIXTH, to the Class T3-F6 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F6 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
SEVENTH, to the Class T3-F7 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F7 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
EIGHTH, to the Class T3-F8 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F8 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
NINTH, to the Class T3-F9 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-F9 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
TENTH, proportionately to the accrued interest balances of the Class
T3-F10, Class T3-F11, Class T3-F12 Interests; and
ELEVENTH, in a manner that will cause any amount due on each REMIC 3
Regular Interest to equal the amount due on the corresponding Class of
REMIC 4 Regular Interests.
(l) On each Distribution Date, Realized Losses with respect to the
Adjustable Rate Mortgage Loans shall be allocated as follows:
FIRST, to the Class T3-V1 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-V1 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
SECOND, to the Class T3-V2 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-V2 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
THIRD, to the Class T3-V3 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-V3 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
FOURTH, to the Class T3-V4 Interest to the extent that its principal
balance exceeds the principal balance of the Class T4-V4 Interest on
such Distribution Date (after giving effect to any distributions made
on such date);
FIFTH, proportionately to the accrued interest balances of the Class
T3-V5, Class T3-V6, Class T3-V7 Interests; and
SIXTH, in a manner that will cause any amount due on each REMIC 3
Regular Interests to equal the amount due on the corresponding Class
of REMIC 4 Regular Interests.
(m) On each Distribution Date, the Class T4-F1, Class T4-F2, Class
T4-F3, Class T4-F4, Class T4-F5, Class T4-F6, Class T4-F7, Class T4-F8, Class
T4-F9, Class T4-V1, Class T4-V2, Class T4-V3, and Class T4-V4 Interests shall
be entitled to receive distributions of principal and interest equal to the
principal and interest distributions required to be paid with respect to the
corresponding Class of Certificates (determined as if the distributions on the
Certificates were computed without regard to the amounts distributed under
Section 4.04(i) hereof from the Carryover Reserve Fund). On each Distribution
Date, interest that accrues with respect to the Class T4-F10, Class T4-F11,
Class T4-F12, Class T4-F13, Class T4-F14, Class T4-F15, Class T4-F16, Class
T4-F17 and Class T4-F18, during the related Accrual Period shall be distributed
as Fixed Rate Excess Cashflow and Fixed Rate Remainder Excess Cashflow in
accordance with Section 4.04 (f), (g) and (h), and interest that accrues with
respect to the Class T4-V5, Class T4-V6, Class T4-V7, and Class T4-V8 Interests
during the related Accrual Period shall be distributed as Adjustable Rate
Excess Cashflow and as Adjustable Rate Remainder Excess Cashflow in accordance
with Section 4.04(f), (g) and (i) hereof. Interest that accrues on the Class
T4-F10, Class T4-F11, Class T4-F12, Class T4-F13, Class T4-F14, Class T4-F15,
Class T4-F16, Class T4-F17, Class T4-F18, Class T4-V5, Class T4-V6, Class
T4-V7, and Class T4-V8 Interests shall not itself bear interest.
(n) On each Distribution Date, the Applied Realized Loss Amount for
the Fixed Rate Certificates and the Applied Realized Loss Amount for the
Adjustable Rate Certificates shall be allocated among the REMIC 4 Regular
Interests in accordance with the allocations provided in Section 4.04 (k) and
(l) hereof for the corresponding classes of Certificates.
Section 4.07. Extra Master Servicing Fee.
(a) REMIC 4 shall pay to the Master Servicer the Extra Master
Servicing Fee as an additional fee for services rendered as Master Servicer.
Such fee shall be due and payable on any Distribution Date only to the extent
their are amounts remaining after all amounts required to be distributed with
respect to the REMIC 4 Regular Interests have been made for that Distribution
Date. Furthermore, if for any Distribution Date an amount would be required to
be paid from the Carryover Reserve Fund pursuant to Section 4.04(j), the Master
Servicer shall make an advance to the Carryover Reserve Fund in the amount of
any Extra Master Servicing Fee due for that Distribution Date.
(b) With respect to each Distribution Date, the Extra Master
Servicing Fee shall equal the sum of the following:
(i) an amount equal to the product of the Class AF-1 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-F1 Interest
principal balance over the Class T4-F1 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date);
(ii) an amount equal to the product of the Class AF-2 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-F2 Interest
principal balance over the Class T4-F2 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date);
(iii) an amount equal to the product of the Class AF-3 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-F3 Interest
principal balance over the Class T4-F3 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date);
(iv) an amount equal to the product of the Class AF-4 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-F4 Interest
principal balance over the Class T4-F4 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date);
(v) an amount equal to the product of the Class AF-5 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-F5 Interest
principal balance over the Class T4-F5 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date);
(vi) an amount equal to the product of the Class AF-6 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-F6 Interest
principal balance over the Class T4-F6 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date);
(vii) an amount equal to the product of the Class MF-1 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-F7 Interest
principal balance over the Class T4-F7 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date);
(viii) an amount equal to the product of the Class MF-2 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-F8 Interest
principal balance over the Class T4-F8 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date);
(ix) an amount equal to the product of the Class AV-1 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-V1 Interest
principal balance over the Class T4-V1 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date);
(x) an amount equal to the product of the Class MV-1 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-V2 Interest
principal balance over the Class T4-V2 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date); and
(xi) an amount equal to the product of the Class MV-2 Pass-Through
Rate for such Distribution Date and the excess of the Class T3-V3 Interest
principal balance over the Class T4-V3 Interest principal balance (before
giving effect to any reductions of such balances on such Distribution
Date).
All amounts received by the Servicer in respect of the Extra Master Servicing
Fee will be deposited into the Carryover Reserve Fund.
Section 4.08. Fixed Rate Carryover Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, in trust for the benefit of the Holders of the Fixed Rate
Certificates, the Fixed Rate Carryover Reserve Fund. The Fixed Rate Carryover
Reserve Fund shall be an Eligible Account, and funds on deposit therein shall
be held separate and apart from, and shall not be commingled with, any other
moneys, including without limitation, other moneys held by the Trustee pursuant
to this Agreement.
(b) On each Distribution Date on which the Net Excess Spread is less
than 0.25%, the Trustee shall transfer from the Distribution Account to the
Fixed Rate Carryover Reserve Fund pursuant to Sections 4.04(h)(ii) the Required
Fixed Rate Carryover Reserve Fund Deposit.
(c) The Trustee shall make withdrawals from the Fixed Rate Carryover
Reserve Fund to make distributions pursuant to Section 4.04(h) hereof, and
shall withdraw from the Fixed Rate Carryover Reserve Fund on any Distribution
Date on which the Net Excess Spread is equal to or greater than 0.25% an amount
equal to the amount of funds on deposit in the Fixed Rate Carryover Reserve
Fund in excess of $5,000 and distribute such excess to the Class BF-IO
Certificateholders PRO RATA in accordance with their respective Percentage
Interests. Funds withdrawn from the Fixed Rate Carryover Reserve Fund may not
be applied pursuant to any other subsection of Section 4.04 other than as
expressly provided for in this Section 4.08(c).
(d) Funds in the Fixed Rate Carryover Reserve Fund may be invested in
Permitted Investments. Any earnings on such amounts shall be payable to the
Class BF-IO Certificates. The Class BF-IO Certificates shall evidence ownership
of the Fixed Rate Carryover Reserve Fund for federal tax purposes and shall
direct the Trustee in writing as to the investment of amounts therein.
(e) Upon termination of the Trust Fund, any amounts remaining in the
Fixed Rate Carryover Reserve Fund shall be distributed to the Holders of the
Class BF-IO Certificates in the same manner as if distributed pursuant to
Section 4.04(h) hereof.
Section 4.09. Adjustable Rate Carryover Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, in trust for the benefit of the Holders of the Adjustable Rate
Certificates, the Adjustable Rate Carryover Reserve Fund. The Adjustable Rate
Carryover Reserve Fund shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled
with, any other moneys, including without limitation, other moneys held by the
Trustee pursuant to this Agreement.
(b) On each Distribution Date on which the Net Excess Spread is less
than 0.25%, the Trustee shall transfer from the Distribution Account to the
Adjustable Rate Carryover Reserve Fund pursuant to Sections 4.04(i)(ii) the
Required Adjustable Rate Carryover Reserve Fund Deposit.
(c) The Trustee shall make withdrawals from the Adjustable Rate
Carryover Reserve Fund to make distributions pursuant to Section 4.04(i)
hereof, and shall withdraw from the Adjustable Rate Carryover Reserve Fund on
any Distribution Date on which the Net Excess Spread is equal to or greater
than 0.25% an amount equal to the amount of funds on deposit in the Adjustable
Rate Carryover Reserve Fund in excess of $5,000 and distribute such excess to
the Class BV-IO Certificateholders PRO RATA in accordance with their respective
Percentage Interests. Funds withdrawn from the Adjustable Rate Carryover
Reserve Fund may not be applied pursuant to any other subsection of Section
4.04 other than as expressly provided for in this Section 4.08(c).
(d) Funds in the Adjustable Rate Carryover Reserve Fund may be
invested in Permitted Investments. Any earnings on such amounts shall be
payable to the Class BV-IO Certificates. The Class BV-IO Certificates shall
evidence ownership of the Adjustable Rate Carryover Reserve Fund for federal
tax purposes and shall direct the Trustee in writing as to the investment of
amounts therein.
(e) Upon termination of the Trust Fund, any amounts remaining in the
Adjustable Rate Carryover Reserve Fund shall be distributed to the Holders of
the Class BV-IO Certificates in the same manner as if distributed pursuant to
Section 4.04(i) hereof.
<PAGE>
ARTICLE V.
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. The Certificates shall be issuable in registered form, in the
minimum dollar denominations, integral dollar multiples in excess thereof
(except that one Certificate in of each Class may be issued in a different
amount which must be in excess of the applicable minimum dollar denomination)
and aggregate dollar denominations as set forth in the following table:
<TABLE>
<CAPTION>
Integral Original
Multiples Certificate
Minimum in Excess of Principal
Class Denomination Minimum Balance
- ------------------ ---------------------- -------------------------------- --------------------------------
<S> <C> <C> <C>
AF-1 $25,000 $1,000 $49,806,000
AF-2 $25,000 $1,000 $12,734,000
AF-3 $25,000 $1,000 $19,803,000
AF-4 $25,000 $1,000 $9,950,000
AF-5 $25,000 $1,000 $9,199,000
AF-6 $25,000 $1,000 $8,880,000
MF-1 $25,000 $1,000 $6,660,000
MF-2 $25,000 $1,000 $5,075,000
BF $25,000 $1,000 $4,757,000
BF-IO N/A N/A N/A
AV-1 $25,000 $1,000 $142,420,000
MV-1 $25,000 $1,000 $12,011,000
MV-2 $25,000 $1,000 $7,722,000
BV $25,000 $1,000 $9,437,000
BV-IO N/A N/A N/A
R-1 0.001% N/A N/A
R-2 99.999% N/A N/A
</TABLE>
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such authentication
and delivery. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form set forth
as attached hereto executed by the Trustee by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. On the Closing Date, the Trustee shall authenticate
the Certificates to be issued at the written direction of the Depositor, or any
affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 5.09 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of Transfers and
exchanges of Certificates as herein provided. Upon surrender for registration
of Transfer of any Certificate, the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of Transfer or exchange shall be accompanied by a written
instrument of Transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of Transfer or exchange
shall be canceled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No Transfer of a Class B-IO or Class R Certificate shall be made
unless such Transfer is made pursuant to an effective registration statement
under the Securities Act and any applicable state securities laws or is exempt
from the registration requirements under the Securities Act and such state
securities laws. In the event that a Transfer is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such Transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the Transfer in
substantially the forms set forth in Exhibit J (the "Transferor Certificate")
and (x) deliver a letter in substantially the form of either Exhibit K (the
"Investment Letter") or Exhibit L (the "Rule 144A Letter") or (y) there shall
be delivered to the Trustee an opinion of counsel that such Transfer may be
made pursuant to an exemption from the Securities Act, which opinion of counsel
shall not be an expense of the Depositor, the Seller, the Master Servicer or
the Trustee. The Depositor shall provide to any Holder of a Class B-IO or Class
R Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for Transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Master Servicer shall
cooperate with the Depositor in providing the Rule 144A information referenced
in the preceding sentence, including providing to the Depositor such
information regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet its
obligation under the preceding sentence. Each Holder of a Class B-IO or Class R
Certificate desiring to effect such Transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor, the Seller and the Master Servicer
against any liability that may result if the Transfer is not so exempt or is
not made in accordance with such federal and state laws.
No Transfer of an ERISA Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the transferee
of such Certificate acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
or a Person acting on behalf of any such plan or using the assets of any such
plan, (ii) except in the case of the Class B-IO Certificates and Class R
Certificates, if such purchaser is an insurance company, a representation that
the purchaser is an insurance company that is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60, or (iii) in the case of any such ERISA
Restricted Certificate presented for registration in the name of an employee
benefit plan subject to ERISA, or a plan subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan, an opinion of
counsel satisfactory to the Trustee and the Master Servicer to the effect that
the purchase or holding of such ERISA Restricted Certificate will not result in
the assets of the Trust Fund being deemed to be "plan assets" and subject to
the prohibited transaction provisions of ERISA and the Code and will not
subject the Trustee or the Master Servicer to any obligation in addition to
those expressly undertaken in this Agreement, which opinion of counsel shall
not be an expense of the Trustee or the Master Servicer. For purposes of clause
(i) of the preceding sentence, such representation shall be deemed to have been
made to the Trustee by the transferee's acceptance of an ERISA Restricted
Certificate (or the acceptance by a Certificate Owner of the beneficial
interest in any such Class of ERISA Restricted Certificates) unless the Trustee
shall have received from the transferee an alternative representation
acceptable in form and substance to the Master Servicer and the Depositor.
Notwithstanding anything else to the contrary herein, any purported transfer of
an ERISA Restricted Certificate to or on behalf of an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code
without the delivery to the Trustee and the Master Servicer of an opinion of
counsel satisfactory to the Trustee and the Master Servicer as described above
shall be void and of no effect; provided that the restriction set forth in this
sentence shall not be applicable if there has been delivered to the Trustee and
the Master Servicer an opinion of counsel meeting the requirements of clause
(iii) of the first sentence of this paragraph. The Trustee shall be under no
liability to any Person for any registration of transfer of any ERISA
Restricted Certificate that is in fact not permitted by this Section 5.02(b) or
for making any payments due on such Certificate to the Holder thereof or taking
any other action with respect to such Holder under the provisions of this
Agreement so long as the transfer was registered by the Trustee in accordance
with the foregoing requirements. The Trustee shall be entitled, but not
obligated, to recover from any Holder of any ERISA Restricted Certificate that
was in fact an employee benefit plan subject to Section 406 of ERISA or a plan
subject to Section 4975 of the Code or a Person acting on behalf of any such
plan at the time it became a Holder or, at such subsequent time as it became
such a plan or Person acting on behalf of such a plan, all payments made on
such ERISA Restricted Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered by the Trustee
to the last preceding Holder of such Certificate that is not such a plan or
Person acting on behalf of a plan.
(c) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of any Class R Certificate unless, in addition to
the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Class R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Class R Certificate that was in fact not a Permitted Transferee at the
time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Class R Certificate
at and after either such time. Any such payments so recovered by the
Trustee shall be paid and delivered by the Trustee to the last preceding
Permitted Transferee of such Certificate.
(v) The Master Servicer shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code as
a result of a Transfer of an Ownership Interest in a Class R Certificate
to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Class R Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trustee, the Seller or the Master
Servicer to the effect that the elimination of such restrictions will not cause
the Trust Fund to fail to qualify as a REMIC at any time that the Certificates
are outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
ownership Interest in a Class R Certificate hereby consents to any amendment of
this Agreement that, based on an Opinion of Counsel furnished to the Trustee,
is reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class R Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Class R Certificate that is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 shall not be an expense of the Trust
Fund, the Trustee, the Depositor, the Seller or the Master Servicer.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and of the ownership thereof and (b) there is
delivered to the Master Servicer and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with
the issuance of any new Certificate under this Section 5.03, the Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. Any
replacement Certificate issued pursuant to this Section 5.03 shall constitute
complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. All Certificates surrendered to the Trustee under
the terms of this Section 5.03 shall be canceled and destroyed by the Trustee
in accordance with its standard procedures without liability on its part.
Section 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master Servicer
or the Trustee may treat the person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and neither
the Master Servicer, the Trustee nor any agent of the Master Servicer or the
Trustee shall be affected by any notice to the contrary.
Section 5.05. Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor or Master Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Master Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of the Trust Fund held by the Trustee, if any. The Depositor
and every Certificateholder, by receiving and holding a Certificate, agree that
the Trustee shall not be held accountable by reason of the disclosure of any
such information as to the list of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 5.06. Book-Entry Certificates.
The Regular Certificates (other than the Class B-IO Certificates),
upon original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to the
Depository by or on behalf of the Depositor. Such Certificates shall initially
be registered on the Certificate Register in the name of the Depository or its
nominee, and no Certificate Owner of such Certificates will receive a
definitive certificate representing such Certificate Owner's interest in such
Certificates, except as provided in Section 5.08. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
the Certificate Owners of such Certificates pursuant to Section 5.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor, the Master Servicer and the Trustee may deal with
the Depository and the Depository Participants for all purposes (including the
making of distributions) as the authorized representative of the respective
Certificate Owners of such Certificates;
(c) registration of the Book-Entry Certificates may not be
transferred by the Trustee except to another Depository;
(d) the rights of the respective Certificate Owners of such
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of such Certificates and the Depository and/or the
Depository Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository
will make book-entry transfers among the Depository Participants and receive
and transmit distributions of principal and interest on the related
Certificates to such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants; and
(g) to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of,
Certificateholders evidencing a specified percentage of the aggregate unpaid
principal amount of any Class of Certificates, such direction or consent may be
given by Certificate Owners (acting through the Depository and the Depository
Participants) owning Book-Entry Certificates evidencing the requisite
percentage of principal amount of such Class of Certificates.
Section 5.07. Notices to Depository.
Whenever any notice or other communication is required to be given to
Certificateholders of the Class with respect to which Book-Entry Certificates
have been issued, unless and until Definitive Certificates shall have been
issued to the related Certificate Owners, the Trustee shall give all such
notices and communications to the Depository.
Section 5.08. Definitive Certificates.
If, after Book-Entry Certificates have been issued with respect to
any Certificates, (a) the Depositor advises the Trustee that the Depository is
no longer willing or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Certificates and the Trustee or the
Depositor is unable to locate a qualified successor, (b) the Depositor, at its
sole option, advises the Trustee that it elects to terminate the book-entry
system with respect to such Certificates through the Depository or (c) after
the occurrence and continuation of an Event of Default, Certificate Owners of
such Book-Entry Certificates having not less than 51% of the Voting Rights
evidenced by any Class of Book-Entry Certificates advise the Trustee and the
Depository in writing through the Depository Participants that the continuation
of a book-entry system with respect to Certificates of such Class through the
Depository (or its successor) is no longer in the best interests of the
Certificate Owners of such Class, then the Trustee shall notify all Certificate
Owners of such Certificates, through the Depository, of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners of such Class requesting the same. The Depositor shall provide the
Trustee with an adequate inventory of certificates to facilitate the issuance
and transfer of Definitive Certificates. Upon surrender to the Trustee of any
such Certificates by the Depository, accompanied by registration instructions
from the Depository for registration, the Trustee shall authenticate and
deliver such Definitive Certificates. Neither the Depositor nor the Trustee
shall be liable for any delay in delivery of such instructions and each may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of such Definitive Certificates, all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of such Definitive Certificates as Certificateholders hereunder.
Section 5.09. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates may
be surrendered for registration of transfer or exchange. The Trustee initially
designates its offices at 101 Barclay Street, Floor 12E, New York, New York
10286, Attention: Corporate Trust MBS Administration, as offices for such
purposes. The Trustee will give prompt written notice to the Certificateholders
of any change in such location of any such office or agency.
<PAGE>
ARTICLE VI.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER
Section 6.01. Respective Liabilities of the Depositor, the Master
Servicer and the Seller.
The Depositor, the Master Servicer and the Seller shall each be
liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
Section 6.02. Merger or Consolidation of the Depositor, the Master
Servicer or the Seller.
The Depositor, the Master Servicer and the Seller will each keep in
full effect its existence, rights and franchises as a corporation under the
laws of the United States or under the laws of one of the States thereof and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any Person into which the Depositor, the Master Servicer or the
Seller may be merged or consolidated, or any Person resulting from any merger
or consolidation to which the Depositor, the Master Servicer or the Seller
shall be a party, or any person succeeding to the business of the Depositor,
the Master Servicer or the Seller, shall be the successor of the Depositor, the
Master Servicer or the Seller, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
the successor or surviving Person to the Master Servicer shall be qualified to
sell mortgage loans to, and to service mortgage loans on behalf of, FNMA or
FHLMC.
Section 6.03. Limitation on Liability of the Depositor, the Seller,
the Master Servicer and others.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Depositor, the Seller, the
Master Servicer or any such Person against any breach of representations or
warranties made by it herein or protect the Depositor, the Seller, the Master
Servicer or any such Person from any liability that would otherwise be imposed
by reasons of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor, the Seller, the Master Servicer and any
director, officer, employee or agent of the Depositor, the Seller or the Master
Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Seller, the Master Servicer and any director,
officer, employee or agent of the Depositor, the Seller or the Master Servicer
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and
duties hereunder. None of the Depositor, the Seller or the Master Servicer
shall be under any obligation to appear in, prosecute or defend any legal
action that is not incidental to its respective duties hereunder and that in
its opinion may involve it in any expense or liability; provided that any of
the Depositor, the Seller or the Master Servicer may, in its discretion
undertake any such action that it may deem necessary or desirable in respect of
this Agreement and the rights and duties of the parties hereto and interests of
the Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall
be, expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Seller and the Master Servicer shall be entitled to be reimbursed therefor out
of the Certificate Account as provided by Section 3.08 hereof.
Section 6.04. Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
to such effect delivered to the Trustee. No such resignation shall become
effective until the Trustee or a successor servicer to such appointment shall
have assumed the Master Servicer's responsibilities, duties, liabilities and
obligations hereunder.
Section 6.05. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall, for so long as it acts as servicer under
this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as servicer hereunder, and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies and bond shall, together,
comply with the requirements from time to time of FNMA or FHLMC for persons
performing servicing for mortgage loans purchased by FNMA or FHLMC. In the
event that any such policy or bond ceases to be in effect, the Master Servicer
shall use its reasonable best efforts to obtain a comparable replacement policy
or bond from an insurer or issuer, meeting the requirements set forth above as
of the date of such replacement.
<PAGE>
ARTICLE VII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit in the Certificate
Account or the Distribution Account or remit to the Trustee any payment
(excluding a payment required to be made under Section 4.01 hereof)
required to be made under the terms of this Agreement (other than its
obligation to make Advances hereunder (which is included in clause (ii)
below)), which failure shall continue unremedied for five calendar days
and, with respect to a payment required to be made under Section 4.01
hereof, for one calendar day, after the date on which written notice of
such failure shall have been given to the Master Servicer by the Trustee
or the Depositor, or to the Trustee and the Master Servicer by the Holders
of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates; or
(ii) any failure by the Master Servicer or, so long as the Master
Servicer is also the Seller, the Seller to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Master Servicer contained in this Agreement (including its obligations
to make Advances hereunder) or any representation or warranty shall prove
to be untrue, which failure or breach shall continue unremedied for a
period of 60 days after the date on which written notice of such failure
shall have been given to the Master Servicer by the Trustee or the
Depositor, or to the Trustee by the Holders of Certificates evidencing not
less than 25% of the Voting Rights evidenced by the Certificates; provided
that the sixty-day cure period shall not apply to the initial delivery of
the Mortgage File for Delay Delivery Mortgage Loans nor the failure to
repurchase or substitute in lieu thereof; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations.
If an Event of Default shall occur, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the
Trustee shall, but only at the direction of the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates, by notice in writing to the Master Servicer (with a copy to each
Rating Agency), terminate all of the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof, other than its rights as a Certificateholder hereunder. On or after
the receipt by the Master Servicer of such written notice, all authority and
power of the Master Servicer hereunder, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee. The Trustee
shall thereupon make any Advance described in Section 4.01 hereof subject to
Section 3.04 hereof. The Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of
such notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. Unless
expressly provided in such written notice, no such termination shall affect any
obligation of the Master Servicer to pay amounts owed pursuant to Article VIII.
The Master Servicer agrees to cooperate with the Trustee in effecting the
termination of the Master Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer to the Trustee of all cash amounts
which shall at the time be credited to the Certificate Account, or thereafter
be received with respect to the Mortgage Loans. The Trustee shall promptly
notify the Rating Agencies of the occurrence of an Event of Default.
Notwithstanding any termination of the activities of a Master
Servicer hereunder, such Master Servicer shall be entitled to receive, out of
any late collection of a Scheduled Payment on a Mortgage Loan that was due
prior to the notice terminating such Master Servicer's rights and obligations
as Master Servicer hereunder and received after such notice, that portion
thereof to which such Master Servicer would have been entitled pursuant to
Sections 3.08(a)(i) through (viii), and any other amounts payable to such
Master Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 hereof, the Trustee shall, to the extent
provided in Section 3.04, be the successor to the Master Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Master Servicer by the terms and
provisions hereof and applicable law including the obligation to make advances
pursuant to Section 4.01. As compensation therefor, the Trustee shall be
entitled to all fees, costs and expenses relating to the Mortgage Loans that
the Master Servicer would have been entitled to if the Master Servicer had
continued to act hereunder. Notwithstanding the foregoing, if the Trustee has
become the successor to the Master Servicer in accordance with Section 7.01
hereof, the Trustee may, if it shall be unwilling to so act, or shall, if it is
prohibited by applicable law from making Advances pursuant to Section 4.01
hereof or if it is otherwise unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then current
rating of the Certificates by each Rating Agency as the successor to the Master
Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder. Any
successor Master Servicer shall be an institution that is a FNMA and FHLMC
approved seller/servicer in good standing, that has a net worth of at least
$15,000,000, and that is willing to service the Mortgage Loans and executes and
delivers to the Depositor and the Trustee an agreement accepting such
delegation and assignment, that contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer (other than liabilities of the Master Servicer under Section
6.03 hereof incurred prior to termination of the Master Servicer under Section
7.01), with like effect as if originally named as a party to this Agreement;
and provided further that each Rating Agency acknowledges that its rating of
the Certificates in effect immediately prior to such assignment and delegation
will not be qualified or reduced as a result of such assignment and delegation.
No appointment of a successor to the Master Servicer hereunder shall be
effective until the Trustee shall have consented thereto, and written notice of
such proposed appointment shall have been provided by the Trustee to each
Certificateholder. The Trustee shall not resign as servicer until a successor
servicer has been appointed and has accepted such appointment. Pending
appointment of a successor to the Master Servicer hereunder, the Trustee,
unless the Trustee is prohibited by law from so acting, shall, subject to
Section 3.04 hereof, act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided that no such compensation
shall be in excess of that permitted the Master Servicer hereunder. The Trustee
and such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. Neither the Trustee nor
any other successor servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof or any failure to perform, or any delay in
performing, any duties or responsibilities hereunder, in either case caused by
the failure of the Master Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as servicer shall give notice to
the Mortgagors of such change of servicer and shall, during the term of its
service as servicer maintain in force the policy or policies that the Master
Servicer is required to maintain pursuant to Section 6.05.
Section 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
<PAGE>
ARTICLE VIII.
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they
conform to the requirements of this Agreement. If any such instrument is found
not to conform to the requirements of this Agreement in a material manner, the
Trustee shall take action as it deems appropriate to have the instrument
corrected.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own gross
negligent failure to act or its own misconduct, its grossly negligent failure
to perform its obligations in compliance with this Agreement, or any liability
that would be imposed by reason of its willful misfeasance or bad faith;
provided that:
(i) prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default that may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable,
individually or as Trustee, except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee and the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement that it reasonably believed in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Trustee shall not be liable, individually or as Trustee, for
an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless the Trustee was grossly
negligent or acted in bad faith or with willful misfeasance; and
(iii) the Trustee shall not be liable, individually or as Trustee,
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of each Class of
Certificates evidencing not less than 25% of the Voting Rights of such
Class relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Agreement.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) the Trustee shall not be liable, individually or as Trustee,
for any action taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(iv) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of each
Class of Certificates evidencing not less than 25% of the Voting Rights of
such Class;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys;
(vi) the Trustee shall not be required to expend its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is
not assured to it;
(vii) the Trustee shall not be liable, individually or as Trustee,
for any loss on any investment of funds pursuant to this Agreement (other
than as issuer of the investment security);
(viii) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have received
written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by the Trustee
without the possession of any of the Certificates, or the production thereof at
the trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of the Certificates, subject to the provisions of
this Agreement.
Section 8.03. Trustee Not Liable for Mortgage Loans.
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Agreement or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor or the Master Servicer of any funds
paid to the Depositor or the Master Servicer in respect of the Mortgage Loans
or deposited in or withdrawn from the Certificate Account by the Depositor or
the Master Servicer.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses.
The Master Servicer covenants and agrees (i) to pay to the Trustee
from time to time, and the Trustee shall be entitled to, such compensation as
shall be agreed in writing by the Master Servicer and the Trustee (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee and (ii) to pay or reimburse the
Trustee, upon its request, for all reasonable expenses, disbursements and
advances incurred or made by the Trustee on behalf of the Trust Fund in
accordance with any of the provisions of this Agreement (including, without
limitation: (A) the reasonable compensation and the expenses and disbursements
of its counsel, but only for representation of the Trustee acting in its
capacity as Trustee hereunder and (B) to the extent that the Trustee must
engage persons not regularly in its employ to perform acts or services on
behalf of the Trust Fund, which acts or services are not in the ordinary course
of the duties of a trustee, paying agent or certificate registrar, in the
absence of a breach or default by any party hereto, the reasonable
compensation, expenses and disbursements of such persons, except any such
expense, disbursement or advance as may arise from its negligence, bad faith or
willful misconduct). The Trustee and any director, officer, employee or agent
of the Trustee shall be indemnified by the Master Servicer and held harmless
against any loss, liability or expense (i) incurred in connection with any
legal action relating to this Agreement or the Certificates, or in connection
with the performance of any of the Trustee's duties hereunder, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Trustee's duties hereunder or by
reason of reckless disregard of the Trustee's obligations and duties hereunder
and (ii) resulting from any error in any tax or information return prepared by
the Master Servicer. Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee hereunder.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall, at all times, be a corporation or
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating that would not cause any of the Rating Agencies to reduce their
respective ratings of any Class of Certificates below the ratings issued on the
Closing Date (or having provided such security from time to time as is
sufficient to avoid such reduction). If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07 hereof. The corporation or
national banking association serving as Trustee may have normal banking and
trust relationships with the Depositor, the Seller and the Master Servicer and
their respective affiliates; provided that such corporation cannot be an
affiliate of the Master Servicer other than the Trustee in its role as
successor to the Master Servicer.
Section 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (1) giving written notice of resignation to the Depositor and
the Master Servicer and by mailing notice of resignation by first class mail,
postage prepaid, to the Certificateholders at their addresses appearing on the
Certificate Register and each Rating Agency, not less than 60 days before the
date specified in such notice when, subject to Section 8.08, such resignation
is to take effect, and (2) acceptance of appointment by a successor trustee in
accordance with Section 8.08 and meeting the qualifications set forth in
Section 8.06. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 hereof and shall fail to resign
after written request thereto by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(iii)(A) a tax is imposed with respect to the Trust Fund by any state in which
the Trustee or the Trust Fund is located, (B) the imposition of such tax would
be avoided by the appointment of a different trustee and (C) the Trustee fails
to indemnify the Trust Fund against such tax, then the Depositor or the Master
Servicer may remove the Trustee and appoint a successor trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the Trustee, one copy of which shall be delivered to the Master Servicer and
one copy of which shall be delivered to the successor trustee.
The Holders evidencing at least 51% of the Voting Rights of each
Class of Certificates may at any time remove the Trustee and appoint a
successor trustee by written instrument or instruments, in triplicate, signed
by such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered by the successor Trustee to the Master
Servicer one complete set to the Trustee so removed and one complete set to the
successor so appointed. Notice of any removal of the Trustee shall be given to
each Rating Agency by the Successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.08 hereof.
Section 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 hereof and its appointment
shall not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
Section 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to substantially all of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be eligible under the provisions of Section 8.06 hereof
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. The
Trustee shall be ultimately liable for the actions of any co-trustee. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this
Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
Section 8.11. Tax Matters.
It is intended that the Trust Fund shall constitute, and that the
affairs of the Trust Fund shall be conducted so that REMIC 1F, REMIC 1V, REMIC
2, REMIC 3, and REMIC 4 qualify as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent
(and the Trustee is hereby appointed to act as agent) on behalf of the Trust
Fund and that in such capacity it shall: (a) prepare and file, or cause to be
prepared and filed, in a timely manner, a U.S. Real Estate Mortgage Investment
Conduit Income Tax Returns (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared and
filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with
respect to each of REMIC 1F, REMIC 1V, REMIC 2, REMIC 3, and REMIC 4,
containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby; (b) within thirty days of the Closing Date, furnish or cause to be
furnished to the Internal Revenue Service, on Forms 8811 or as otherwise may be
required by the Code, the name, title, address, and telephone number of the
person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code for the Trust Fund; (c) make or cause to be made
elections, on behalf of REMIC 1F, REMIC 1V, REMIC 2, REMIC 3, and REMIC 4 to be
treated as a REMIC on the federal tax return of the REMIC 1F, REMIC 1V, REMIC
2, REMIC 3, and REMIC 4 for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as and
when required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Class R Certificate to a Person
that is not a Permitted Transferee, or an agent (including a broker, nominee or
other middleman) of a Non-Permitted Transferee, or a pass-through entity in
which a Non-Permitted Transferee is the record holder of an interest (the
reasonable cost of computing and furnishing such information may be charged to
the Person liable for such tax); (f) to the extent that they are under its
control conduct the affairs of the Trust Fund at all times that any
Certificates are outstanding so as to maintain the status of REMIC 1F, REMIC
1V, REMIC 2, REMIC 3, or REMIC 4 as a REMIC under the REMIC Provisions; (g) not
knowingly or intentionally take any action or omit to take any action that
would cause the termination of the REMIC status of REMIC 1F, REMIC 1V, REMIC 2,
REMIC 3, or REMIC 4; (h) pay, from the sources specified in the last paragraph
of this Section 8.11, the amount of any federal, state and local taxes,
including prohibited transaction taxes as described below, imposed on REMIC 1F,
REMIC 1V, REMIC 2, REMIC 3, or REMIC 4 prior to the termination of the Trust
Fund when and as the same shall be due and payable (but such obligation shall
not prevent the Trustee or any other appropriate Person from contesting any
such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings); (i) sign or cause to be signed federal, state or local
income tax or information returns; (j) maintain records relating to the REMIC
1F, REMIC 1V, REMIC 2, REMIC 3, or REMIC 4, including but not limited to the
income, expenses, assets and liabilities of REMIC 1F, REMIC 1V, REMIC 2, REMIC
3, or REMIC 4, and the fair market value and adjusted basis of the Trust Fund
property determined at such intervals as may be required by the Code, as may be
necessary to prepare the foregoing returns, schedules, statements or
information; and (k) as and when necessary and appropriate, represent the Trust
Fund in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of a REMIC 1F, REMIC 1V, REMIC 2, REMIC 3, or
REMIC 4 , enter into settlement agreements with any governmental taxing agency,
extend any statute of limitations relating to any tax item of the Trust Fund,
and otherwise act on behalf of the REMIC 1F, REMIC 1V, REMIC 2, REMIC 3, or
REMIC 4 in relation to any tax matter involving the REMIC 1F, REMIC 1V, REMIC
2, REMIC 3, or REMIC 4.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within 10 days after the Closing Date all information or data that the Trustee
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall
provide to the Trustee promptly upon written request therefor, any such
additional information or data that the Trustee may, from time to time, request
in order to enable the Trustee to perform its duties as set forth herein. The
Depositor hereby indemnifies the Trustee for any losses, liabilities, damages,
claims or expenses of the Trustee arising from any errors or miscalculations of
the Trustee that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee on a timely
basis.
In the event that any tax is imposed on "prohibited transactions" of
the Trust Fund as defined in Section 860F(a)(2) of the Code, on the "net income
from foreclosure property" of the Trust Fund as defined in Section 860G(c) of
the Code, on any contribution to the Trust Fund after the startup day pursuant
to Section 860G(d) of the Code, or any other tax is imposed, including, without
limitation, any federal, state or local tax or minimum tax imposed upon the
Trust Fund pursuant to Sections 23153 and 24872 of the California Revenue and
Taxation Code if not paid as otherwise provided for herein, such tax shall be
paid by (i) the Trustee, if any such other tax arises out of or results from a
breach by the Trustee of any of its obligations under this Agreement, (ii) (x)
the Master Servicer, in the case of any such minimum tax, and (y) any party
hereto (other than the Trustee) to the extent any such other tax arises out of
or results from a breach by such other party of any of its obligations under
this Agreement or (iii) in all other cases, or in the event that any liable
party here fails to honor its obligations under the preceding clauses (i) or
(ii), any such tax will be paid first with amounts otherwise to be distributed
to the Class R Certificateholders and the Class B-IO Certificateholders (pro
rata), and second with amounts otherwise to be distributed to all other
Certificateholders in the following order of priority: first, to the Class BF
and Class BV Certificates (pro rata), second, to the Class MF-2 and MV-2
Certificates (pro rata), third, to the Class MF-1 and MV-1 Certificates (pro
rata), and fourth, to the Fixed Rate Class A Certificates and the Class AV-1
Certificates (pro rata). Notwithstanding anything to the contrary contained
herein, to the extent that such tax is payable by the Class R Certificates, the
Trustee is hereby authorized to retain on any Distribution Date, from the
Holders of the Class R Certificates (and, if necessary, second, from the
Holders of the all other Certificates in the priority specified in the
preceding sentence), funds otherwise distributable to such Holders in an amount
sufficient to pay such tax. The Trustee agrees to promptly notify in writing
the party liable for any such tax of the amount thereof and the due date for
the payment thereof.
The Trustee shall treat the Fixed Rate Carryover Reserve Fund as an
outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that
is owned by the Class BF-IO Certificateholders and that is not an asset of the
REMIC. The Trustee shall treat the rights of the Class AF-1, Class AF-2, Class
AF-3, Class AF-4, Class AF-5, Class AF-6, Class MF-1, Class MF-2 and Class BF
Certificateholders to receive payments from the Fixed Rate Carryover Reserve
Fund rights in an interest rate cap contract written by the Class BF-IO
Certificateholder in favor of the Fixed Rate Certificateholders. Thus, each
Fixed Fate Certificate shall be treated as representing ownership of not only
REMIC 4 Regular Interests, but also ownership of an interest in an interest
rate cap contract. For purposes of determining the issue price of the REMIC 4
Regular interests, the Trustee shall assume that the interest rate cap contract
has a value of $5,000.
The Trustee shall treat the Adjustable Rate Carryover Reserve Fund as
an outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h)
that is owned by the Class BV-IO Certificateholders and that is not an asset of
the REMIC. The Trustee shall treat the rights of the Class AV-1, Class MV-1,
Class MV-2 and Class BV Certificateholders to receive payments from the
Adjustable Rate Carryover Reserve Fund rights in an interest rate cap contract
written by the Class BV-IO Certificateholder in favor of the Class AV-1, Class
MV-1, Class MV-2, and Class BV Certificateholders. Thus each Class AV-1, Class
MV-1, Class MV-2, and Class BV Certificate shall be treated as representing
ownership of not only REMIC 4 Regular Interests, but also ownership of an
interest in an interest rate cap contract. For purposes of determining the
issue price of the REMIC 4 Regular interests, the Trustee shall assume that the
interest rate cap contract has a value of $5,000.
<PAGE>
ARTICLE IX.
TERMINATION
Section 9.01. Termination upon Liquidation or Repurchase of all
Mortgage Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Master Servicer, the Seller and the Trustee created hereby with
respect to the Trust Fund shall terminate upon the earlier of (a) the
repurchase by the Master Servicer of all of the Mortgage Loans (and REO
Properties) remaining in the each Loan Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan in such Loan
Group (other than in respect of REO Property), (ii) accrued interest thereon at
the applicable Mortgage Rate (or, if such repurchase is effected by the Master
Servicer, at the applicable Net Mortgage Rate), (iii) the appraised value of
any REO Property in such Loan Group (up to the Stated Principal Balance of the
related Mortgage Loan), such appraisal to be conducted by an appraiser mutually
agreed upon by the Master Servicer and the Trustee and (iv) any unreimbursed
Servicing Advances, and the principal portion of any unreimbursed Advances,
made on the Mortgage Loans in such Loan Group prior to the exercise of such
repurchase and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador
of the United States to the Court of St. James, living on the date hereof and
(ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Loan Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of the Mortgage Loans in such Loan Group, at the time of any
such repurchase, aggregating ten percent or less of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans in such Loan Group.
Section 9.02. Final Distribution on the Certificates.
If on any Determination Date, (i) the Master Servicer determines that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Certificate Account, the Master Servicer
shall direct the Trustee to send a final distribution notice promptly to each
Certificateholder or (ii) the Trustee determines that a Class of Certificates
shall be retired after a final distribution on such Class, the Trustee shall
notify the Certificateholders within five (5) Business Days after such
Determination Date that the final distribution in retirement of such Class of
Certificates is scheduled to be made on the immediately following Distribution
Date. Any final distribution made pursuant to the immediately preceding
sentence will be made only upon presentation and surrender of the related
Certificates at the Corporate Trust Office of the Trustee. If the Master
Servicer elects to terminate the Trust Fund pursuant to clause (a) of Section
9.01, at least 20 days prior to the date notice is to be mailed to the affected
Certificateholders, such electing party shall notify the Depositor and the
Trustee of the date such electing party intends to terminate the Trust Fund and
of the applicable repurchase price of the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and no later than the 15th day of the month immediately preceding the month
of such final distribution. Any such notice shall specify (a) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Master Servicer will give
such notice to each Rating Agency at the time such notice is given to
Certificateholders.
In the event such notice is given, the Master Servicer shall cause
all funds in the Certificate Account to be remitted to the Trustee for deposit
in the Distribution Account on the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of
the Certificates. Upon such final deposit with respect to the Trust Fund and
the receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to Certificateholders of each Class the amounts
allocable to such Certificates held in the Distribution Account (and, if
applicable, the Fixed Rate Carryover Reserve Fund and the Adjustable Rate
Carryover Reserve Fund) in the order and priority set forth in Section 4.04
hereof on the final Distribution Date and in proportion to their respective
Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class R
Certificateholders shall be entitled to all unclaimed funds and other assets of
the Trust Fund that remain subject hereto.
Section 9.03. Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option on
both of the Fixed Rate Mortgage Loans and the Adjustable Rate Mortgage Loans as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied
with an Opinion of Counsel, at the expense of the Master Servicer, to the
effect that the failure of the Trust Fund to comply with the requirements of
this Section 9.03 will not (i) result in the imposition of taxes on "prohibited
transactions" of a REMIC, or (ii) cause a REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding:
(1) The Master Servicer shall establish a 90-day liquidation
period and notify the Trustee thereof, which shall in turn specify the first
day of such period in a statement attached to the Trust Fund's final Tax Return
pursuant to Treasury Regulation Section 1.860F-1. The Master Servicer shall
satisfy all the requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder, as evidenced by an Opinion of Counsel
obtained at the expense of the Master Servicer;
(2) During such 90-day liquidation period, and at or prior
to the time of making the final payment on the Certificates, the Master
Servicer as agent of the Trustee shall sell all of the assets of the Trust Fund
for cash; and
(3) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Class R Certificateholders all cash on hand
(other than cash retained to meet claims), and the Trust Fund shall terminate
at that time.
(b) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Master Servicer to specify the 90-day liquidation period
for the Trust Fund, which authorization shall be binding upon all successor
Certificateholders.
(c) The Trustee as agent for each REMIC hereby agrees to adopt and
sign such a plan of complete liquidation upon the written request of the Master
Servicer, and the receipt of the Opinion of Counsel referred to in Section
9.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Master Servicer.
<PAGE>
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Seller and the Trustee, without the consent of any of the
Certificateholders to cure any ambiguity, to correct or supplement any
provisions herein, or to make such other provisions with respect to matters or
questions arising under this Agreement, as shall not be inconsistent with any
other provisions herein if such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder; provided that any such amendment shall be deemed not to
adversely affect in any material respect the interests of the
Certificateholders and no such Opinion of Counsel shall be required if the
Person requesting such amendment obtains a letter from each Rating Agency
stating that such amendment would not result in the downgrading or withdrawal
of the respective ratings then assigned to the Certificates, it being
understood and agreed that any such letter in and of itself will not represent
a determination as to the materiality of any such amendment and will represent
a determination only as to the credit issues affecting any such rating.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the Trustee, the Depositor, the Master Servicer and the
Seller may at any time and from time to time amend this Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
or appropriate to maintain the qualification of the Trust Fund as a REMIC under
the Code or to avoid or minimize the risk of the imposition of any tax on the
Trust Fund pursuant to the Code that would be a claim against the Trust Fund at
any time prior to the final redemption of the Certificates, provided that the
Trustee have been provided an Opinion of Counsel, which opinion shall be an
expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee, to the effect that such action is necessary or
appropriate to maintain such qualification or to avoid or minimize the risk of
the imposition of such a tax.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Seller and the Trustee and the Holders of
each Class of Certificates affected thereby evidencing not less than 51% of the
Voting Rights of such Class for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates;
provided that no such amendment shall (i) reduce in any manner the amount of,
or delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in (i), without the consent of the Holders
of Certificates of such Class evidencing 66% or more of the Voting Rights of
such Class or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall be an expense of the party
requesting such amendment but in any case shall not be an expense of the
Trustee, to the effect that such amendment will not cause the imposition of any
tax on the Trust Fund or the Certificateholders or cause the Trust Fund's REMIC
elections to fail to qualify at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel, satisfactory to the Trustee
that (i) such amendment is permitted and is not prohibited by this Agreement
and that all requirements for amending this Agreement have been complied with;
and (ii) either (A) the amendment does not adversely affect in any material
respect the interests of any Certificateholder or (B) the conclusion set forth
in the immediately preceding clause (A) is not required to be reached pursuant
to this Section 10.01.
Section 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at its
expense.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
Section 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance of
the Mortgage Notes, Mortgages, assignments of Mortgages, title insurance
policies and any modifications, extensions and/or assumption agreements and
private mortgage insurance policies relating to the Mortgage Loans by the
Depositor to the Trustee be, and be construed as, an absolute sale thereof to
the Trustee. It is, further, not the intention of the parties that such
conveyance be deemed a pledge thereof by the Depositor to the Trustee. However,
in the event that, notwithstanding the intent of the parties, such assets are
held to be the property of the Depositor, or if for any other reason this
Agreement is held or deemed to create a security interest in such assets, then
(i) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyance provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets that constitute
the Trust Fund, whether now owned or hereafter acquired.
The Depositor for the benefit of the Certificateholders shall, to the
extent consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
assets of the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for
the benefit of the Certificateholders.
Section 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of the Master Servicer or the
Trustee and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.02, 2.03, 2.04 and 3.12; and
(v) The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
(i) Each report to Certificateholders described in Section 4.04;
(ii) Each annual statement as to compliance described in Section
3.17; and
(iii) Each annual independent public accountants' servicing report
described in Section 3.18.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case
of the Depositor, Bear Stearns Asset Backed Securities, Inc., 245 Park Avenue,
New York, New York 10167, Attention: Chief Counsel; (b) in the case of the
Seller or the Master Servicer, Countrywide Home Loans, Inc., 4500 Park Granada,
Calabasas, California 91302, Attention: Dave Walker, with a copy to the same
address, Attention: Legal Department, or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Master Servicer in writing;
(c) in the case of the Trustee, The Bank of New York, 101 Barclay Street, 12E,
New York, New York Attention: Corporate Trust MBS Administration or such other
address as the Trustee may hereafter furnish to the Depositor or the Master
Servicer; and (d) in the case of the Rating Agencies, (i) Moody's Investors
Service, Inc., 99 Church Street, New York, New York 10007, Attention: Home
Equity Monitoring and (ii) Fitch IBCA, Inc., Attention: Structured Finance, One
State Street Plaza, New York, New York 10004. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Section 6.02, this Agreement may not be assigned by the
Master Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of
an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as hereinbefore
provided, the Holders of Certificates evidencing not less than 25% of the
Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Agreement, except in the
manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 10.08,
each and every Certificateholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit any representative of the Depositor or the Trustee during the Master
Servicer's normal business hours, to examine all the books of account, records,
reports and other papers of the Master Servicer relating to the Mortgage Loans,
to make copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Master Servicer hereby authorizes such accountants
to discuss with such representative such affairs, finances and accounts), all
at such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense incident to the exercise by the Depositor or the Trustee
of any right under this Section 10.09 shall be borne by the party requesting
such inspection; all other such expenses shall be borne by the Master Servicer.
Section 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Trustee pursuant to this Agreement, are and shall be deemed
fully paid.
* * *
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Seller
and the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
BEAR STEARNS ASSET BACKED SECURITIES, INC.,
as Depositor
By: /s/ Tom Dunstan
----------------------------------
Name: Tom Dunstan
Title: Authorized Agent
COUNTRYWIDE HOME LOANS, INC.,
as Master Servicer and Seller
By: /s/ David Walker
----------------------------------
Name: David Walker
Title: Executive Vice President
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By: /s/ Courtney A. Bartholomew
----------------------------------
Name: Courtney A. Bartholomew
Title: Assistant Vice President
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this 30th day of July, 1999, before me, a notary public in and for
said State, appeared David Walker, personally known to me on the basis of
satisfactory evidence to be the Executive Vice President of Countrywide Home
Loans, Inc., one of the corporations that executed the within instrument, and
also known to me to be the person who executed it on behalf of such corporation
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Patricia Lappin
--------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of July, 1999, before me, a notary public in and for
said State, appeared Tom Dunstan, personally known to me on the basis of
satisfactory evidence to be an authorized representative of Bear Stearns Asset
Backed Securities, Inc., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Mark Zweitler
-----------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of July, 1999, before me, a notary public in and for
said State, appeared Courtney Bartholomew, personally known to me on the basis
of satisfactory evidence to be an Assistant Vice President of The Bank of New
York, a New York banking corporation that executed the within instrument, and
also known to me to be the person who executed it on behalf of such
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Clarice Zanoni
--------------------------------
Notary Public
[Notarial Seal]
<PAGE>
Exhibit A-1
through A-15
[Exhibits A-1 through A-15 are
photocopies of such Certificates as
delivered.]
[see appropriate documents delivered at closing]
<PAGE>
Exhibit B
[Reserved]
<PAGE>
Exhibit C
[Reserved]
<PAGE>
Exhibit D
[Exhibit D is a photocopy
of the Class R Certificate
as delivered.]
[see appropriate documents delivered at closing]
<PAGE>
Exhibit E
[Exhibit E is a photocopy
of the Tax Matters Person Class R Certificate
as delivered.]
[see appropriate documents delivered at closing]
<PAGE>
Exhibit F-1
[Exhibit F-1 is a list of the Mortgage Loans]
[see Schedule on file with the Trustee]
<PAGE>
Exhibit F-2
LIST OF DELAY DELIVERY MORTGAGE LOANS
None
<PAGE>
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of July 1, 1999 among Bear
Stearns Asset Backed Securities, Inc., as Depositor, Countrywide Home
Loans, Inc., as Seller and Master Servicer, and The Bank of New York,
as Trustee, Asset-Backed Certificates, Series 1999-1
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed in the attached list of exceptions) it has
received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the following form: "Pay
to the order of ___________________ , without recourse" or "Pay to the order of
The Bank of New York, a New York banking corporation, as trustee under the
Pooling and Servicing Agreement dated as of July 1, 1999, Bear Stearns Asset
Backed Securities, Inc. Home Equity Loan Trust 1999-1, without recourse"; and
(ii) a duly executed assignment of the Mortgage in the form permitted
by Section 2.01 of the Pooling and Servicing Agreement referred to above.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
<PAGE>
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT G-2
FORM OF INTERIM CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of July 1, 1999 among Bear
Stearns Asset Backed Securities, Inc., as Depositor, Countrywide Home
Loans, Inc., as Seller and Master Servicer, and The Bank of New York,
as Trustee, Asset-Backed Certificates, Series 1999-1
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that, except
as listed in the following paragraph, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached list of exceptions) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the following form: "Pay
to the order of _______________ without recourse" or "Pay to the order of The
Bank of New York, a New York banking corporation, as trustee under the Pooling
and Servicing Agreement dated as of July 1, 1999, Bear Stearns Asset Backed
Securities, Inc. Home Equity Loan Trust 1999-1, without recourse", with all
intervening endorsements that show a complete chain of endorsement from the
originator to the Seller;
(ii) the original recorded Mortgage;
(iii) a duly executed assignment of the Mortgage in the form permitted
by Section 2.01 of the Pooling and Servicing Agreement referred to above;
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage;
(v) [Reserved]; and
(vi) the original or duplicate original lender's title policy or, in
the event such original title policy has not been received from the insurer,
any one of an original title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by the title company,
with the original policy of title insurance to be delivered within one year of
the Closing Date.
If the Trustee has not received the original recorded Mortgage or an
original recorded assignment of the Mortgage satisfying the requirements of
clause (ii), (iii) or (iv) above, as applicable, the Trustee has received, in
lieu thereof, a true and complete copy of such Mortgage and/or such assignment
or assignments of the Mortgage, as applicable, each certified by the Seller,
the applicable title company, escrow agent or attorney, or the originator of
such Mortgage Loan, as the case may be, to be a true and complete copy of the
original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (v),
(vi) and (viii) of the definition of the "Mortgage Loan Schedule" in Section
1.01 of the Pooling and Servicing Agreement accurately reflects information
set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
<PAGE>
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT G-3
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of July 1, 1999 among Bear
Stearns Asset Backed Securities, Inc., as Depositor, Countrywide Home
Loans, Inc., as Seller and Master Servicer, and The Bank of New York,
as Trustee, Asset-Backed Certificates, Series 1999-1
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto,
delivered by the undersigned, as Trustee, on the Closing Date in accordance
with Section 2.02 of the above-captioned Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"). The undersigned hereby certifies that, as
to each Delay Delivery Mortgage Loan listed on the Schedule A attached hereto
(other than any Mortgage Loan paid in full or listed on Schedule B attached
hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the following form: "Pay
to the order of ___________________ , without recourse," or "Pay to the order
of The Bank of New York, a New York banking corporation, as trustee under the
Pooling and Servicing Agreement dated as of July 1, 1999, Bear Stearns Asset
Backed Securities, Inc. Home Equity Loan Trust 1999-1, without recourse"; and
(ii) a duly executed assignment of the Mortgage in the form permitted
by Section 2.01 of the Pooling and Servicing Agreement referred to above.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
<PAGE>
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Seller]
Re: Pooling and Servicing Agreement dated as of July 1, 1999 among Bear
Stearns Asset Backed Securities, Inc., as Depositor, Countrywide Home
Loans, Inc., as Seller and Master Servicer, and The Bank of New York,
as Trustee, Asset-Backed Certificates, Series 1999-1
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attached Document Exception Report)
it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the following form: "Pay
to the order of _________________ without recourse" or "Pay to the order of The
Bank of New York, a New York banking corporation, as trustee under the Pooling
and Servicing Agreement dated as of July 1, 1999, Bear Stearns Asset Backed
Securities, Inc. Home Equity Loan Trust 1999-1, without recourse", with all
intervening endorsements that show a complete chain of endorsement from the
originator to the Seller;
(ii) the original recorded Mortgage;
(iii) a duly executed assignment of the Mortgage in the form permitted
by Section 2.01 of the Pooling and Servicing Agreement referred to above;
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage;
(v) [Reserved]; and
(vi) the original or duplicate original lender's title policy or any
one of an original title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by the title company.
If the public recording office in which a Mortgage or assignment
thereof is recorded has retained the original of such Mortgage or assignment,
the Trustee has received, in lieu thereof, a copy of the original Mortgage or
assignment so retained, with evidence of recording thereon, certified to be
true and complete by such recording office.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (v),
(vi) and (viii) of the definition of the "Mortgage Loan Schedule" in Section
1.01 of the Pooling and Servicing Agreement accurately reflects information
set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT I
TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________, the proposed
Transferee of an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, dated as
of July 1, 1999 (the "Agreement"), by and among Bear Stearns Asset Backed
Securities, Inc., as depositor (the "Depositor"), Countrywide Home Loans, Inc.,
as Seller and Master Servicer and The Bank of New York, as Trustee. Capitalized
terms used, but not defined herein or in Exhibit 1 hereto, shall have the
meanings ascribed to such terms in the Agreement. The Transferee has authorized
the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii) as
nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit.
The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the Class
R Certificates.
8. The Transferee's taxpayer identification number is _____.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(3O).
10. The Transferee is aware that the Class R Certificates may be
"noneconomic residual interests" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax. In addition, as the
holder of a noneconomic residual interest, the Transferee may incur tax
liabilities in excess of any cash flows generated by the interest and the
Transferee hereby represents that it intends to pay taxes associated with
holding the residual interest as they become due.
* * *
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ____ day of _____________, 19__.
[NAME OF TRANSFEREE]
By:
Name:
Title:
[Corporate Seal]
ATTEST:
_____________________________
[Assistant] Secretary
Personally appeared before me the above-named _____________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________ of the Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of _______, 19__.
______________________________
NOTARY PUBLIC
My Commission expires the ___ day
of _______________, 19__.
<PAGE>
EXHIBIT 1 TO EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
that is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(1) of the Code) with respect
to any Class R Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) an "electing large
partnership" as defined in Section 775 of the Code, (vi) a Person that is not a
citizen or resident of the United States, a corporation, partnership, or other
entity (treated as a corporation or a partnership for federal income tax
purposes) created or organized in or under the laws of the United States, any
state thereof or the District of Columbia, or an estate whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have
authority to control all substantial decisions of the trustor unless such
Person has furnished the transferor and the Trustee with a duly completed
Internal Revenue Service Form 4224, and (vii) any other Person so designated by
the Trustee based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Class R Certificate to such Person may cause the Trust Fund to
fail to qualify as a REMIC at any time that certain Certificates are
Outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality
of the United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by such government unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
<PAGE>
EXHIBIT 2 TO EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee.
(ii) No Ownership Interest in a Class R Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of any Class R Certificate unless, in addition to the
certificates required to be delivered to the Trustee under subparagraph (b)
above, the Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the form
attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Class R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as the Transfer was registered
after receipt of the related Transfer Affidavit, Transferor Certificate and
either the Rule 144A Letter or the Investment Letter. The Trustee shall be
entitled but not obligated to recover from any Holder of a Class R
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Class R Certificate at and
after either such time. Any such payments so recovered by the Trustee shall
be paid and delivered by the Trustee to the last preceding Permitted
Transferee of such Certificate.
(v) The Master Servicer shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information necessary
to compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Class R Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Class R Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trustee, the Seller or the Master
Servicer to the effect that the elimination of such restrictions will not cause
the Trust Fund to fail to qualify as a REMIC at any time that the Certificates
are outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Class R Certificate hereby consents to any amendment of
this Agreement that, based on an Opinion of Counsel furnished to the Trustee,
is reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class R Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Class R Certificate that is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
<PAGE>
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE FOR
CLASS B-IO AND CLASS R CERTIFICATES
Date:
Bear Stearns Asset Backed Securities, Inc.,
as Depositor
4500 Park Granada
Calabasas, California 91302
The Bank of New York,
as Trustee
101 Barclay Street, 12E
New York, New York 10286
Re: Bear Stearns Asset Backed Securities, Inc. Asset-Backed Certificates,
Series 1999-1
Ladies and Gentlemen:
In connection with our disposition of the Class __ Certificates, we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action that would result in, a violation of
Section 5 of the Act and (c) if we are disposing of a Class R Certificate, we
have no knowledge the Transferee is not a Permitted Transferee. All capitalized
terms used herein but not defined herein shall have the meanings assigned to
them in the Pooling and Servicing Agreement dated as of July 1, 1999, among
Bear Stearns Asset Backed Securities, Inc., as Depositor, Countrywide Home
Loans, Inc., as Seller and Master Servicer, and The Bank of New York, as
Trustee.
Very truly yours,
----------------------------------
Name of Transferor
By: _______________________________
Name:
Title:
<PAGE>
EXHIBIT K
FORM OF INVESTMENT LETTER [NON-RULE 144A] FOR
CLASS B-IO AND CLASS R CERTIFICATES
Date:
Bear Stearns Asset Backed Securities, Inc.,
as Depositor
245 Park Avenue
New York, New York 10167
The Bank of New York,
as Trustee
101 Barclay Street, 12E
New York, New York 10286
Re: Bear Stearns Asset Backed Securities, Inc. Asset-Backed Certificates,
Series 1999-1
Ladies and Gentlemen:
In connection with our acquisition of the Class __ Certificates in the
Denomination of _____________ (the "Certificates"), we certify that (a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an "accredited investor,"
as defined in Regulation D under the Act, and have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificates, (c) we have had the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Certificates, (d) we are not an employee benefit plan that is subject to the
Employee Retirement Income Security Act of 1974, as amended, nor a plan subject
to Section 4975 of the Internal Revenue Code of 1986 (each of the foregoing, a
"Plan"), nor are we acting on behalf of any Plan or (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of the Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with
clause (g) below), (f) we have not offered or sold any Certificates to, or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, or taken any
other action that would result in a violation of Section 5 of the Act, and (g)
we will not sell, transfer or otherwise dispose of any Certificates unless (1)
such sale, transfer or other disposition is made pursuant to an effective
registration statement under the Act or is exempt from such registration
requirements, and if requested, we will at our expense provide an opinion of
counsel satisfactory to the addressees of this certificate that such sale,
transfer or other disposition may be made pursuant to an exemption from the
Act, (2) the purchaser or transferee of the Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any conditions for transfer set forth in the Pooling and Servicing Agreement
dated as of July 1, 1999 (the "Agreement"), among Bear Stearns Asset Backed
Securities, Inc., as Depositor, Countrywide Home Loans, Inc., as Seller and
Master Servicer, and The Bank of New York, as Trustee. All capitalized terms
used herein but not defined herein shall have the meanings assigned to them in
the Agreement.
Very truly yours,
------------------------------------
Name of Transferee
By: ________________________________
Name:
Title:
<PAGE>
EXHIBIT L
FORM OF RULE 144A LETTER FOR
CLASS B-IO AND CLASS R CERTIFICATES
Date:
Bear Stearns Asset Backed Securities, Inc.,
as Depositor
245 Park Avenue
New York, New York 10167
The Bank of New York,
as Trustee
101 Barclay Street, 12E
New York, New York 10286
Re: Bear Stearns Asset Backed Securities, Inc. Asset-Backed Certificates,
Series 1999-1
Ladies and Gentlemen:
In connection with our proposed purchase of the Class R Certificates
(the "Certificates") we certify that (a) we understand that the Certificates
are not being registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities laws and are being transferred to us in a
transaction that is exempt from the registration requirements of the Act and
any such laws, (b) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks of
investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase of
the Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are not
an employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, nor a plan subject to Section 4975 of the
Internal Revenue Code of 1986 (each of the foregoing, a "Plan"), nor are we
acting on behalf of any Plan or (e) we have not, nor has anyone acting on our
behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to
the Certificates, any interest in the Certificates or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Certificates under the Securities
Act or that would render the disposition of the Certificates a violation of
Section 5 of the Securities Act or require registration pursuant thereto, nor
will act, nor has authorized or will authorize any person to act, in such
manner with respect to the Certificates, and (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is
being made in reliance on Rule 144A. We are acquiring the Certificates for our
own account or for resale pursuant to Rule 144A and further, understand that
the Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (ii) pursuant to another exemption from registration under the
Securities Act. All capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Pooling and Servicing Agreement dated
as of July 1, 1999, among Bear Stearns Asset Backed Securities, Inc., as
Depositor, Countrywide Home Loans, Inc., as Seller and Master Servicer, and The
Bank of New York, as Trustee.
-------------------------------------
Name of Buyer
By: __________________________________
Name:
Title:
<PAGE>
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $__________1 in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
___ Small Business Investment Company. The Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively State or
Local Plans or ERISA Plans as defined above, and no participant
of the Buyer is an individual retirement account or an H.R. 10
(Keogh) plan.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and
the Buyer is not itself a reporting company under the Securities Exchange Act
of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of
this certification as of the date of such purchase. In addition, if the Buyer
is a bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
-----------------------------------
Name of Buyer
By: _______________________________
Name:
Title:
Date: _____________________________
<PAGE>
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current information
with respect to the cost of those securities has been published. If clause (ii)
in the preceding sentence applies, the securities may be valued at market.
___ The Buyer owned $____________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $__________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
--------------------------------------
Name of Buyer or Adviser
By: ___________________________________
Name:
Title:
IF AN ADVISER:
--------------------------------------
Name of Buyer
Date: _________________________________
<PAGE>
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
Loan Information
Name of Mortgagor:
-------------------------------------------
Master Servicer
Loan No.:
-------------------------------------------
Trustee
Name:
-------------------------------------------
Address:
-------------------------------------------
Trustee
Mortgage File No.:
-------------------------------------------
The undersigned Master Servicer hereby acknowledges that it has
received from _______________________________________, as Trustee for the
Holders of Asset-Backed Certificates, Series 1999-1, the documents referred to
below (the "Documents"). All capitalized terms not otherwise defined in this
Request for Release shall have the meanings given them in the Pooling and
Servicing Agreement dated as of July 1, 1999 (the "Pooling and Servicing
Agreement") among Bear Stearns Asset Backed Securities, Inc., as Depositor,
Countrywide Home Loans, Inc., as Seller and Master Servicer, and the Trustee.
( ) Mortgage Note dated ___________, 19__, in the original principal sum
of $________, made by __________________, payable to, or endorsed to
the order of, the Trustee.
( ) Mortgage recorded on _________________ as instrument no.
________________ in the County Recorder's Office of the County of
________________, State of _______________ in book/reel/docket
_______________ of official records at page/image _____________.
( ) Deed of Trust recorded on _________________ as instrument no.
________________ in the County Recorder's Office of the County of
________________, State of _______________ in book/reel/docket
_______________ of official records at page/image _____________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_________________ as instrument no. __________ in the County
Recorder's Office of the County of __________, State of
_______________ in book/reel/docket _______________ of official
records at page/image _____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) ----------------------------------------------
( ) ----------------------------------------------
( ) ----------------------------------------------
( ) ----------------------------------------------
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the purposes
provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions nor
shall the Master Servicer assert or seek to assert any claims or rights of
setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been remitted
to the Certificate Account and except as expressly provided in the
Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Master Servicer
shall at all times be earmarked for the account of the Trustee, and the
Master Servicer shall keep the Documents and any proceeds separate and
distinct from all other property in the Master Servicer's possession,
custody or control.
[Master Servicer]
By _______________________________
Its ________________________________
Date: _________________, 19__
<PAGE>
EXHIBIT N
REQUEST FOR RELEASE
[Mortgage Loans Paid in Full, Repurchased or Replaced]
OFFICER'S CERTIFICATE AND TRUST RECEIPT
ASSET-BACKED CERTIFICATES,
Series 1999-1
__________________________________________ HEREBY CERTIFIES THAT HE/SHE IS AN
OFFICER OF THE Master Servicer, HOLDING THE OFFICE SET FORTH BENEATH HIS/HER
SIGNATURE, AND HEREBY FURTHER CERTIFIES AS FOLLOWS:
WITH RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
[ALL PAYMENTS OF PRINCIPAL AND INTEREST HAVE BEEN MADE.] [THE [PURCHASE PRICE]
[MORTGAGE LOAN REPURCHASE PRICE] FOR SUCH MORTGAGE LOANS HAS BEEN PAID.] [THE
MORTGAGE LOANS HAVE BEEN LIQUIDATED AND THE RELATED [INSURANCE PROCEEDS]
[LIQUIDATION PROCEEDS] HAVE BEEN DEPOSITED PURSUANT TO SECTION 3.13 OF THE
POOLING AND SERVICING AGREEMENT.] [A REPLACEMENT MORTGAGE LOAN HAS BEEN
DELIVERED TO THE TRUSTEE IN THE MANNER AND OTHERWISE IN ACCORDANCE WITH THE
CONDITIONS SET FORTH IN SECTIONS 2.02 AND 2.03 OF THE POOLING AND SERVICING
AGREEMENT.]
LOAN NUMBER:_______________ BORROWER'S NAME:_____________
COUNTY:____________________
[For Substitution or Repurchase Only: The Master Servicer certifies that [an]
[no] opinion is required by Section 2.05 [and is attached hereto].]
I HEREBY CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS,
THAT ARE REQUIRED TO BE DEPOSITED IN THE CERTIFICATE ACCOUNT PURSUANT TO
SECTION 3.05 OF THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE
CREDITED.
____________ _____________________ DATED:____________
/ / VICE PRESIDENT
/ / ASSISTANT VICE PRESIDENT
<PAGE>
Exhibit O
[Exhibit O is a photocopy
of the Depository Agreement
as delivered.]
[see appropriate documents delivered at closing]
