Filed On 6/3/99 · SEC File 333-67267-01 · Accession Number 914121-99-544
As Of Filer Filing As/For/On Docs:Pgs Issuer Agent
6/03/99 Bank of America Mort Sec...1999-2 8-K{5,7} 3/25/99 2:274 Cadwalader Wickersh..LLP
Document/Exhibit Description Pages Size
1: 8-K Current Report 5 9K
2: EX-4 Pooling and Servicing Agreement 269± 1,101K
| Page | (sequential) | | | | (alphabetic) | Top |
|---|
| | |
- Alternative Formats (RTF, XML, et al.)
- Agreement
- Authenticating Agents
- Ba Servicer
- Certificates, The
- Class Certificate Balance
- Code
- Compensating Interest
- Component Interest Distribution Amount
- Component Rate
- Definitive Certificates
- Depositor
- Distribution Date
- Erisa
- Escrow Account
- Fractional Interest
- Interest Distribution Amount
- Lower-Tier Distribution Amount
- Lower-Tier Remic
- Mortgage Loans
- Nmc Servicer
- Non-PO Principal Amount
- Paying Agent
- Permitted Investments
- Plan
- Pooling and Servicing Agreement
- Preliminary Statement
- Rating Agency
- Regular Certificates
- Remic
- Reo Disposition Period
- Restricted Classes
- Section 10.01 Termination upon Purchase by the Depositor or Liquidation of All Mortgage Loans
- Section 10.02 Additional Termination Requirements
- Section 1.01 Defined Terms
- Section 11.01 Amendment
- Section 11.02 Recordation of Agreement
- Section 11.03 Limitation on Rights of Certificateholders
- Section 11.04 Governing Law
- Section 11.05 Notices
- Section 11.06 Severability of Provisions
- Section 11.07 Certificates Nonassessable and Fully Paid
- Section 11.08 Access to List of Certificateholders
- Section 11.09 Recharacterization
- Section 2.01 Conveyance of Mortgage Loans
- Section 2.02 Acceptance by the Trustee of the Mortgage Loans
- Section 2.05 Representations and Warranties of the Depositor as to the Mortgage Loans
- Section 2.06 Designation of Interests in the REMICs
- Section 2.07 Designation of Start-up Day
- Section 2.08 REMIC Certificate Maturity Date
- Section 2.09 Execution and Delivery of Certificates
- Section 3.01 Servicers to Service Mortgage Loans
- Section 3.02 Subservicing; Enforcement of the Obligations of Servicers
- Section 3.03 Fidelity Bond; Errors and Omissions Insurance
- Section 3.04 Access to Certain Documentation
- Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims
- Section 3.06 Rights of the Depositor and the Trustee in Respect of the Servicers
- Section 3.07 Trustee to Act as Servicer
- Section 3.08 Collection of Mortgage Loan Payments; Servicer Custodial Accounts; Certificate Account and Upper-Tier Certificate Account
- Section 3.09 Collection of Taxes, Assessments and Similar Items; Escrow Accounts
- Section 3.10 Access to Certain Documentation and Information Regarding the Mortgage Loans
- Section 3.11 Permitted Withdrawals from the Servicer Custodial Accounts, Certificate Account and Upper-Tier Certificate Account
- Section 3.12 Maintenance of Hazard Insurance
- Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption Agreements
- Section 3.14 Realization Upon Defaulted Mortgage Loans; REO Property
- Section 3.15 Trustee to Cooperate; Release of Mortgage Files
- Section 3.16 Documents, Records and Funds in Possession of the Servicers to be Held for the Trustee
- Section 3.17 Servicing Compensation
- Section 3.18 Annual Statement as to Compliance
- Section 3.19 Annual Independent Public Accountants' Servicing Statement; Financial Statements
- Section 3.20 Advances
- Section 3.21 Modifications, Waivers, Amendments and Consents
- Section 3.22 Reports to the Securities and Exchange Commission
- Section 4.01 Servicer's Certificate
- Section 5.01 Distributions
- Section 5.02 Priorities of Distribution
- Section 5.03 Allocation of Losses
- Section 5.04 Statements to Certificateholders
- Section 5.05 Tax Returns and Reports to Certificateholders
- Section 5.06 Tax Matters Person
- Section 5.07 Rights of the Tax Matters Person in Respect of the Trustee
- Section 5.08 REMIC Related Covenants
- Section 6.01 The Certificates
- Section 6.02 Registration of Transfer and Exchange of Certificates
- Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates
- Section 6.04 Persons Deemed Owners
- Section 7.01 Respective Liabilities of the Depositor and the Servicers
- Section 7.02 Merger or Consolidation of the Depositor or a Servicer
- Section 7.03 Limitation on Liability of the Depositor, the Servicers and Others
- Section 7.04 Depositor and Servicers Not to Resign
- Section 8.01 Events of Default
- Section 8.02 Remedies of Trustee
- Section 8.03 Directions by Certificateholders and Duties of Trustee During Event of Default
- Section 8.04 Action upon Certain Failures of a Servicer and upon Event of Default
- Section 8.05 Trustee to Act; Appointment of Successor
- Section 8.06 Notification to Certificateholders
- Section 9.01 Duties of Trustee
- Section 9.02 Certain Matters Affecting the Trustee
- Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans
- Section 9.04 Trustee May Own Certificates
- Section 9.05 Eligibility Requirements for Trustee
- Section 9.06 Resignation and Removal of Trustee
- Section 9.07 Successor Trustee
- Section 9.08 Merger or Consolidation of Trustee
- Section 9.09 Appointment of Co-Trustee or Separate Trustee
- Section 9.10 Authenticating Agents
- Section 9.11 Trustee's Fees and Expenses
- Section 9.12 [RESERVED]
- Section 9.13 Paying Agents
- Section 9.14 Limitation of Liability
- Section 9.17 Waiver of Bond Requirement
- Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement
- Section 9.19 Year 2000 Compliance
- Similar Law
- Substitution Adjustment Amount
- Tax Matters Person
- The Certificates
- Trustee
- Trust Estate
- Upper-Tier Remic
- 1933 Act
|
| 1 | 1st Page
|
| " | Pooling and Servicing Agreement
|
| 2 | The Certificates
|
| 4 | Preliminary Statement
|
| 5 | Section 1.01 Defined Terms
|
| " | 1933 Act
|
| " | Agreement
|
| " | Authenticating Agents
|
| " | Ba Servicer
|
| " | Class Certificate Balance
|
| " | Code
|
| " | Compensating Interest
|
| " | Component Interest Distribution Amount
|
| " | Component Rate
|
| " | Definitive Certificates
|
| " | Depositor
|
| " | Distribution Date
|
| " | Erisa
|
| " | Escrow Account
|
| " | Fractional Interest
|
| " | Interest Distribution Amount
|
| " | Lower-Tier Distribution Amount
|
| " | Lower-Tier Remic
|
| " | Mortgage Loans
|
| " | Nmc Servicer
|
| " | Non-PO Principal Amount
|
| " | Paying Agent
|
| " | Permitted Investments
|
| " | Plan
|
| " | Rating Agency
|
| " | Regular Certificates
|
| " | Remic
|
| " | Reo Disposition Period
|
| " | Restricted Classes
|
| " | Similar Law
|
| " | Substitution Adjustment Amount
|
| " | Tax Matters Person
|
| " | Trust Estate
|
| " | Trustee
|
| " | Upper-Tier Remic
|
| " | Section 2.01 Conveyance of Mortgage Loans
|
| " | Section 2.02 Acceptance by the Trustee of the Mortgage Loans
|
| " | Section 2.05 Representations and Warranties of the Depositor as to the Mortgage Loans
|
| " | Section 2.06 Designation of Interests in the REMICs
|
| " | Section 2.07 Designation of Start-up Day
|
| " | Section 2.08 REMIC Certificate Maturity Date
|
| " | Section 2.09 Execution and Delivery of Certificates
|
| " | Section 3.01 Servicers to Service Mortgage Loans
|
| " | Section 3.02 Subservicing; Enforcement of the Obligations of Servicers
|
| " | Section 3.03 Fidelity Bond; Errors and Omissions Insurance
|
| " | Section 3.04 Access to Certain Documentation
|
| " | Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims
|
| " | Section 3.06 Rights of the Depositor and the Trustee in Respect of the Servicers
|
| " | Section 3.07 Trustee to Act as Servicer
|
| " | Section 3.08 Collection of Mortgage Loan Payments; Servicer Custodial Accounts; Certificate Account and Upper-Tier Certificate Account
|
| " | Section 3.09 Collection of Taxes, Assessments and Similar Items; Escrow Accounts
|
| " | Section 3.10 Access to Certain Documentation and Information Regarding the Mortgage Loans
|
| " | Section 3.11 Permitted Withdrawals from the Servicer Custodial Accounts, Certificate Account and Upper-Tier Certificate Account
|
| " | Section 3.12 Maintenance of Hazard Insurance
|
| " | Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption Agreements
|
| " | Section 3.14 Realization Upon Defaulted Mortgage Loans; REO Property
|
| " | Section 3.15 Trustee to Cooperate; Release of Mortgage Files
|
| " | Section 3.16 Documents, Records and Funds in Possession of the Servicers to be Held for the Trustee
|
| " | Section 3.17 Servicing Compensation
|
| " | Section 3.18 Annual Statement as to Compliance
|
| " | Section 3.19 Annual Independent Public Accountants' Servicing Statement; Financial Statements
|
| " | Section 3.20 Advances
|
| " | Section 3.21 Modifications, Waivers, Amendments and Consents
|
| " | Section 3.22 Reports to the Securities and Exchange Commission
|
| " | Section 4.01 Servicer's Certificate
|
| " | Section 5.01 Distributions
|
| " | Section 5.02 Priorities of Distribution
|
| " | Section 5.03 Allocation of Losses
|
| " | Section 5.04 Statements to Certificateholders
|
| " | Section 5.05 Tax Returns and Reports to Certificateholders
|
| " | Section 5.06 Tax Matters Person
|
| " | Section 5.07 Rights of the Tax Matters Person in Respect of the Trustee
|
| " | Section 5.08 REMIC Related Covenants
|
| " | Section 6.01 The Certificates
|
| " | Section 6.02 Registration of Transfer and Exchange of Certificates
|
| " | Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates
|
| " | Section 6.04 Persons Deemed Owners
|
| " | Section 7.01 Respective Liabilities of the Depositor and the Servicers
|
| " | Section 7.02 Merger or Consolidation of the Depositor or a Servicer
|
| " | Section 7.03 Limitation on Liability of the Depositor, the Servicers and Others
|
| " | Section 7.04 Depositor and Servicers Not to Resign
|
| " | Section 8.01 Events of Default
|
| " | Section 8.02 Remedies of Trustee
|
| " | Section 8.03 Directions by Certificateholders and Duties of Trustee During Event of Default
|
| " | Section 8.04 Action upon Certain Failures of a Servicer and upon Event of Default
|
| " | Section 8.05 Trustee to Act; Appointment of Successor
|
| " | Section 8.06 Notification to Certificateholders
|
| " | Section 9.01 Duties of Trustee
|
| " | Section 9.02 Certain Matters Affecting the Trustee
|
| " | Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans
|
| " | Section 9.04 Trustee May Own Certificates
|
| " | Section 9.05 Eligibility Requirements for Trustee
|
| " | Section 9.06 Resignation and Removal of Trustee
|
| " | Section 9.07 Successor Trustee
|
| " | Section 9.08 Merger or Consolidation of Trustee
|
| " | Section 9.09 Appointment of Co-Trustee or Separate Trustee
|
| " | Section 9.10 Authenticating Agents
|
| " | Section 9.11 Trustee's Fees and Expenses
|
| " | Section 9.12 [RESERVED]
|
| " | Section 9.13 Paying Agents
|
| " | Section 9.14 Limitation of Liability
|
| " | Section 9.17 Waiver of Bond Requirement
|
| " | Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement
|
| " | Section 9.19 Year 2000 Compliance
|
| " | Section 10.01 Termination upon Purchase by the Depositor or Liquidation of All Mortgage Loans
|
| " | Section 10.02 Additional Termination Requirements
|
| " | Section 11.01 Amendment
|
| " | Section 11.02 Recordation of Agreement
|
| " | Section 11.03 Limitation on Rights of Certificateholders
|
| " | Section 11.04 Governing Law
|
| " | Section 11.05 Notices
|
| " | Section 11.06 Severability of Provisions
|
| " | Section 11.07 Certificates Nonassessable and Fully Paid
|
| " | Section 11.08 Access to List of Certificateholders
|
| " | Section 11.09 Recharacterization
|
================================================================================
BANK OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor,
NATIONSBANC MORTGAGE CORPORATION,
as Servicer,
BANK OF AMERICA, FSB,
as Servicer,
and
THE BANK OF NEW YORK,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated March 25, 1999
-----------------------
Mortgage Pass-Through Certificates
Series 1999-2
================================================================================
TABLE OF CONTENTS
PRELIMINARY STATEMENT.......................................................
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
Section 1.03 Interest Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans..................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans...............
Section 2.03 Representations, Warranties and Covenants of the NMC Servicer.
Section 2.04 Representations, Warranties and Covenants of the BA Servicer..
Section 2.05 Representations and Warranties of the Depositor as to the
Mortgage Loans..............................................
Section 2.06 Designation of Interests in the REMICs........................
Section 2.07 Designation of Start-up Day...................................
Section 2.08 REMIC Certificate Maturity Date...............................
Section 2.09 Execution and Delivery of Certificates........................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans...........................
Section 3.02 Subservicing; Enforcement of the Obligations of Servicers.....
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.................
Section 3.04 Access to Certain Documentation...............................
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims......
Section 3.06 Rights of the Depositor and the Trustee in Respect of the
Servicers...................................................
Section 3.07 Trustee to Act as Servicer....................................
Section 3.08 Collection of Mortgage Loan Payments; Servicer Custodial
Accounts; Certificate Account and Upper-Tier Certificate
Account.....................................................
Section 3.09 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts....................................................
Section 3.10 Access to Certain Documentation and Information Regarding the
Mortgage Loans..............................................
Section 3.11 Permitted Withdrawals from the Servicer Custodial Accounts,
Certificate Account and Upper-Tier Certificate Account......
Section 3.12 Maintenance of Hazard Insurance...............................
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption Agreements.....
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO Property.......
Section 3.15 Trustee to Cooperate; Release of Mortgage Files...............
Section 3.16 Documents, Records and Funds in Possession of the Servicers to
be Held for the Trustee.....................................
Section 3.17 Servicing Compensation........................................
Section 3.18 Annual Statement as to Compliance.............................
Section 3.19 Annual Independent Public Accountants' Servicing Statement;
Financial Statements........................................
Section 3.20 Advances......................................................
Section 3.21 Modifications, Waivers, Amendments and Consents...............
Section 3.22 Reports to the Securities and Exchange Commission.............
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate........................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions.................................................
Section 5.02 Priorities of Distribution....................................
Section 5.03 Allocation of Losses..........................................
Section 5.04 Statements to Certificateholders..............................
Section 5.05 Tax Returns and Reports to Certificateholders.................
Section 5.06 Tax Matters Person............................................
Section 5.07 Rights of the Tax Matters Person in Respect of the Trustee....
Section 5.08 REMIC Related Covenants.......................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates..............................................
Section 6.02 Registration of Transfer and Exchange of Certificates.........
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.............
Section 6.04 Persons Deemed Owners.........................................
ARTICLE VII
THE DEPOSITOR AND THE SERVICERS
Section 7.01 Respective Liabilities of the Depositor and the Servicers.....
Section 7.02 Merger or Consolidation of the Depositor or a Servicer........
Section 7.03 Limitation on Liability of the Depositor, the Servicers and
Others......................................................
Section 7.04 Depositor and Servicers Not to Resign.........................
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.............................................
Section 8.02 Remedies of Trustee...........................................
Section 8.03 Directions by Certificateholders and Duties of Trustee During
Event of Default............................................
Section 8.04 Action upon Certain Failures of a Servicer and upon Event of
Default.....................................................
Section 8.05 Trustee to Act; Appointment of Successor......................
Section 8.06 Notification to Certificateholders............................
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee.............................................
Section 9.02 Certain Matters Affecting the Trustee.........................
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans.........
Section 9.04 Trustee May Own Certificates..................................
Section 9.05 Eligibility Requirements for Trustee..........................
Section 9.06 Resignation and Removal of Trustee............................
Section 9.07 Successor Trustee.............................................
Section 9.08 Merger or Consolidation of Trustee............................
Section 9.09 Appointment of Co-Trustee or Separate Trustee.................
Section 9.10 Authenticating Agents.........................................
Section 9.11 Trustee's Fees and Expenses...................................
Section 9.12 [RESERVED]....................................................
Section 9.13 Paying Agents.................................................
Section 9.14 Limitation of Liability.......................................
Section 9.15 Trustee May Enforce Claims Without Possession of Certificates.
Section 9.16 Suits for Enforcement.........................................
Section 9.17 Waiver of Bond Requirement....................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement.....
Section 9.19 Year 2000 Compliance..........................................
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by the Depositor or Liquidation of
All Mortgage Loans.........................................
Section 10.02 Additional Termination Requirements..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement.....................................
Section 11.03 Limitation on Rights of Certificateholders...................
Section 11.04 Governing Law................................................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Certificates Nonassessable and Fully Paid....................
Section 11.08 Access to List of Certificateholders.........................
Section 11.09 Recharacterization...........................................
EXHIBITS
Exhibit A-1 - Form of Face of Class A-1 Certificate
Exhibit A-2 - Form of Face of Class A-2 Certificate
Exhibit A-3 - Form of Face of Class A-3 Certificate
Exhibit A-4 - Form of Face of Class A-4 Certificate
Exhibit A-5 - Form of Face of Class A-5 Certificate
Exhibit A-6 - Form of Face of Class A-6 Certificate
Exhibit A-7 - Form of Face of Class A-7 Certificate
Exhibit A-8 - Form of Face of Class A-8 Certificate
Exhibit A-9 - Form of Face of Class A-9 Certificate
Exhibit A-10 - Form of Face of Class A-10 Certificate
Exhibit A-11 - Form of Face of Class A-11 Certificate
Exhibit A-12 - Form of Face of Class A-12 Certificate
Exhibit A-13 - Form of Face of Class A-13 Certificate
Exhibit A-14 - Form of Face of Class A-14 Certificate
Exhibit A-PO - Form of Face of Class A-PO Certificate
Exhibit A-R - Form of Face of Class A-R Certificate
Exhibit A-LR - Form of Face of Class A-LR Certificate
Exhibit B-1 - Form of Face of Class B-1 Certificate
Exhibit B-2 - Form of Face of Class B-2 Certificate
Exhibit B-3 - Form of Face of Class B-3 Certificate
Exhibit B-4 - Form of Face of Class B-4 Certificate
Exhibit B-5 - Form of Face of Class B-5 Certificate
Exhibit B-6 - Form of Face of Class B-6 Certificate
Exhibit C - Form of Reverse of all Certificates
Exhibit D-1 - BA Mortgage Loan Schedule
Exhibit D-2 - NMC Mortgage Loan Schedule
Exhibit E - Request for Release of Documents
Exhibit F - Form of Certification of Establishment of Account
Exhibit G-1 - Form of Transferor's Certificate
Exhibit G-2A - Form 1 of Transferee's Certificate
Exhibit G-2B - Form 2 of Transferee's Certificate
Exhibit H - Form of Transferee Representation Letter
- for ERISA Restricted Certificates
Exhibit I - Form of Affidavit Regarding Transfer of
- Residual Certificates
Exhibit J - Contents of Servicing File
Exhibit K - PAC and TAC Tables
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated March 25, 1999, is
hereby executed by and among BANK OF AMERICA MORTGAGE SECURITIES, INC., as
depositor (together with its permitted successors and assigns, the "DEPOSITOR"),
NATIONSBANC MORTGAGE CORPORATION, as servicer (together with its permitted
successors and assigns, the "NMC SERVICER"), BANK OF AMERICA, FSB, as servicer
(together with its permitted successors and assigns, the "BA SERVICER" and,
together with the NMC Servicer, the "SERVICERS"), and THE BANK OF NEW YORK, as
trustee (together with its permitted successors and assigns, the "TRUSTEE").
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the NMC Servicer, the BA Servicer and the Trustee agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust Estate to the Trustee to create the Trust. The Trust Estate for federal
income tax purposes will be treated as two separate real estate mortgage
investment conduits (the "UPPER-TIER REMIC" and the "LOWER-TIER REMIC,"
respectively, and each, a "REMIC"). The Class A Certificates (other than the
Class A-14, Class A-R and Class A-LR Certificates) and the Class B Certificates
are referred to collectively as the "REGULAR CERTIFICATES" and shall constitute
"regular interests" in the Upper-Tier REMIC. The Class A-14 PAC IO A Component,
the Class A-14 PAC IO B Component, the Class A-14 PAC Component, the Class A-14
TAC IO Component and the Class A-14 TAC Component (collectively, the
"Components") shall also constitute "regular interests" in the Upper-Tier REMIC.
The Uncertificated Lower-Tier Interests shall constitute the "regular interests"
in the Lower-Tier REMIC. The Class A-R Certificate shall be the "residual
interest" in the Upper-Tier REMIC and the Class A-LR Certificate shall be the
"residual interest" in the Lower-Tier REMIC. The Certificates will represent the
entire beneficial ownership interest in the Trust. The "latest possible maturity
date" for federal income tax purposes of all interests created hereby will be
the REMIC Certificate Maturity Date.
The following table sets forth characteristics of the Certificates
and the Components, together with the minimum denominations and integral
multiples in excess thereof in which the Classes of Certificates shall be
issuable (except that one Certificate of each Class of Certificates may be
issued in any amount in excess of the minimum denomination):
============== =============== ============= ============== ===============
Integral
Initial Class Multiples
Certificate Pass-Through Minimum in Excess
Classes Balance Rate Denomination of Minimum
-------------- --------------- ------------- -------------- ---------------
Class A-1 $100,000,000.00 6.50% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-2 $100,000,000.00 6.50% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-3 $26,800,000.00 6.50% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-4 $4,826,000.00 6.50% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-5 $7,621,000.00 6.50% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-6 $6,009,000.00 6.50% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-7 $8,456,429.00 6.90% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-8 $3,382,571.00 5.50% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-9 $325,000.00 6.50% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-10 $11,199,000.00 6.50% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-11 $50,559,000.00 5.75% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-12 $48,883,000.00 5.90% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-13 $76,367,000.00 6.35% $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-14 $35,184,000.00 (1) $1,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-PO $748.966.00 (2) $25,000 $1
-------------- --------------- ------------- -------------- ---------------
Class A-R $100.00 6.50% $100 N/A
-------------- --------------- ------------- -------------- ---------------
Class A-LR $100.00 6.50% $100 N/A
-------------- --------------- ------------- -------------- ---------------
Class B-1 $10,758,098.00 6.50% $25,000 $1
-------------- --------------- ------------- -------------- ---------------
Class B-2 $3,752,825.00 6.50% $25,000 $1
-------------- --------------- ------------- -------------- ---------------
Class B-3 $1,751,319.00 6.50% $25,000 $1
-------------- --------------- ------------- -------------- ---------------
Class B-4 $1,751,319.00 6.50% $25,000 $1
-------------- --------------- ------------- -------------- ---------------
Class B-5 $1,000,754.00 6.50% $25,000 $1
-------------- --------------- ------------- -------------- ---------------
Class B-6 $1,001,140.77 6.50% $25,000 $1
-------------- --------------- ------------- -------------- ---------------
Components Initial Component
Component Rate
Balance or
Notional
Amount
-------------- --------------- ------------- -------------- ---------------
Class A-14 $5,833,731.00 6.50% N/A N/A
PAC IO A
-------------- --------------- ------------- -------------- ---------------
Class A-14 $4,512,277.00 6.50% N/A N/A
PAC IO B
-------------- --------------- ------------- -------------- ---------------
Class A-14 $4,948,000.00 6.50% N/A N/A
PAC
-------------- --------------- ------------- -------------- ---------------
Class A-14 $1,762,315.00 6.50% N/A N/A
TAC IO
-------------- --------------- ------------- -------------- ---------------
Class A-14 $30,236,000.00 6.50% N/A N/A
TAC
============== =============== ============= ============== ===============
---------------
(1) The Class A-14 Certificates will be deemed for purposes of the distribution
of interest and principal to consist of five Components as described in the
table. The Components are not severable.
(2) The Class A-PO Certificates will be Principal-Only Certificates and will not
bear interest.
ARTICLE I
DEFINITIONS
Section 1.01 DEFINED TERMS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article:
1933 ACT: The Securities Act of 1933, as amended.
ACCRETION TERMINATION DATE: For (a) the Class A-10 Certificates will
be the earlier to occur of (i) the Distribution Date following the Distribution
Date on which the Class Certificate Balance of the Class A-13 Certificates and
the Component Balance of the Class A-14 TAC Component have been reduced to zero
or (ii) the Senior Credit Support Depletion Date and (b) the Class A-14 TAC
Component will be the earlier to occur of (i) the Distribution Date following
the Distribution Date on which the Class Certificate Balance of the Class A-13
Certificates has been reduced to zero or (ii) the Senior Credit Support
Depletion Date.
ACCRUAL COMPONENT: The Class A-14 TAC Component.
ACCRUAL DISTRIBUTION AMOUNT: For any Distribution Date and the Class
A-10 Certificates and the Accrual Component prior to the applicable Accretion
Termination Date, an amount with respect to such Class or Component equal to the
sum of (i) the amount allocated but not currently distributable as interest to
such Class or Component pursuant to Section 5.02(a)(i) that is attributable to
clause (i) of the definition of "Interest Distribution Amount" or "Component
Interest Distribution Amount," as applicable, and (ii) the amount allocated but
not currently distributable as interest to such Class or Component pursuant to
Section 5.02(a)(i) that is attributable to clause (ii) of the definition of
"Interest Distribution Amount" or "Component Interest Distribution Amount," as
applicable.
ACCRUED CERTIFICATE INTEREST: For any Distribution Date and each
interest-bearing Class (other than the Class A-14 Certificates), one month's
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the applicable Class Certificate Balance. For any
Distribution Date and the Class A-14 Certificates, the sum of Accrued Component
Interest for each Component.
ACCRUED COMPONENT INTEREST: For any Distribution Date and each
Component, one month's interest accrued during the related Interest Accrual
Period at the applicable Component Rate on the applicable Component Balance or
Notional Amount.
ADJUSTED POOL AMOUNT: With respect to any Distribution Date, the
Cut-Off Date Pool Principal Balance of the Mortgage Loans minus the sum of (i)
all amounts in respect of principal received in respect of the Mortgage Loans
(including, without limitation, amounts received as Monthly Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of Certificates on such
Distribution Date and all prior Distribution Dates and (ii) the principal
portion of all Realized Losses (other than Debt Service Reductions) incurred on
the Mortgage Loans from the Cut-Off Date through the end of the month preceding
such Distribution Date.
ADJUSTED POOL AMOUNT (PO PORTION): With respect to any Distribution
Date, the sum of the amounts, calculated as follows, with respect to all
Outstanding Mortgage Loans: the product of (i) the PO Percentage for each such
Mortgage Loan and (ii) the remainder of (A) the Cut-Off Date Principal Balance
of such Mortgage Loan minus (B) the sum of (x) all amounts in respect of
principal received in respect of such Mortgage Loan (including, without
limitation, amounts received as Monthly Payments, Periodic Advances, Principal
Prepayments, Liquidation Proceeds and Substitution Adjustment Amounts) and
distributed to Holders of the Certificates on such Distribution Date and all
prior Distribution Dates and (y) the principal portion of any Realized Loss
(other than a Debt Service Reduction) incurred on such Mortgage Loan from the
Cut-Off Date through the end of the month preceding such Distribution Date.
ADVANCE: A Periodic Advance or a Servicing Advance.
AGREEMENT: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
AMOUNT HELD FOR FUTURE DISTRIBUTION: As to any Distribution Date,
the total of the amounts held in the Servicer Custodial Accounts at the close of
business on the preceding Determination Date on account of (i) Principal
Prepayments and Liquidation Proceeds received or made in the month of such
Distribution Date and (ii) payments which represent receipt of Monthly Payments
in respect of a Due Date or Due Dates subsequent to the related Due Date.
APPRAISED VALUE: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal obtained by the
originator at origination of such Mortgage Loan and (b) the sales price for such
property, except that, in the case of Mortgage Loans the proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value of the related
Mortgaged Property is the appraised value thereof determined in an appraisal
obtained at the time of refinancing, or (ii) the appraised value determined in
an appraisal made at the request of a Mortgagor subsequent to origination in
order to eliminate the Mortgagor's obligation to keep a Primary Insurance Policy
in force.
ASSIGNMENT OF MORTGAGE: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
AUTHENTICATING AGENTS: As defined in Section 9.10.
BA MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase
Agreement, dated March 25, 1999, between the BA Seller, as seller, and the
Depositor, as purchaser.
BA MORTGAGE LOANS: The Mortgage Loans serviced by the BA Servicer
and identified on EXHIBIT D-1 as such Exhibit is amended from time to time to
reflect the addition of Substitute Mortgage Loans and the deletion of Defective
Mortgage Loans pursuant to the provisions of this Agreement.
BA SELLER: Bank of America, FSB, a federal savings bank, or its
successor in interest, as seller of the BA Mortgage Loans under the BA Mortgage
Loan Purchase Agreement.
BA SERVICER: Bank of America, FSB, a federal savings bank, or its
successor in interest, in its capacity as servicer of the BA Mortgage Loans, or
any successor servicer appointed as herein provided.
BA SERVICER CUSTODIAL ACCOUNT: The separate Eligible Account or
Accounts created and maintained by the BA Servicer pursuant to Section 3.08(b).
BANKRUPTCY LOSS: Any Deficient Valuation or Debt Service Reduction.
BANKRUPTCY LOSS AMOUNT: As of any Distribution Date, the Initial
Bankruptcy Loss Amount less the aggregate amount of Bankruptcy Losses previously
incurred during the period from the Cut-Off Date through the last day of the
month preceding the month of such Distribution Date; provided, however, that
such amount may be reduced from time to time with the written consent of the
Rating Agencies provided that such reduction does not result in a downgrading to
the current rating of the Certificates.
BOOK-ENTRY CERTIFICATE: All Classes of Certificates other than the
Physical Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of North Carolina, the State of
New York, the State of California, the State of Virginia, the state in which the
servicing offices of either Servicer are located or the state in which the
Corporate Trust Office is located are required or authorized by law or executive
order to be closed.
BUYDOWN AGREEMENT: An agreement governing the application of Buydown
Funds with respect to a Mortgage Loan.
BUYDOWN FUNDS: Money advanced by a builder, seller or other
interested party to reduce a Mortgagor's Monthly Payment during the initial
years of a Mortgage Loan.
CERTIFICATE: Any of the Bank of America Mortgage Securities, Inc.
Mortgage Pass-Through Certificates, Series 1999-2 that are issued pursuant to
this Agreement.
CERTIFICATE ACCOUNT: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.08(c) 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 Bank of America Mortgage Securities, Inc.
Mortgage Pass-Through Certificates, Series 1999-2." Funds in the Certificate
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement.
CERTIFICATE BALANCE: With respect to any Certificate at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the product of the Percentage
Interest of such Certificate and the Class Certificate Balance of the Class of
Certificates of which such Certificate is a part.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a Book-Entry Certificate. With respect to
any Definitive Certificate, the Certificateholder of such Certificate.
CERTIFICATE REGISTER: The register maintained pursuant to Section
6.02.
CERTIFICATE REGISTRAR: The registrar appointed pursuant to Section
6.02.
CERTIFICATEHOLDER: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, either Servicer or any affiliate thereof shall be deemed
not to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that the Trustee
shall not be responsible for knowing that any Certificate is registered in the
name of such an affiliate unless one of its Responsible Officers has actual
knowledge.
CLASS: As to the Certificates, the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10,
Class A-11, Class A-12, Class A-13, Class A-14, Class A-PO, Class A-R, Class
A-LR, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates, as the case may be.
CLASS A CERTIFICATES: The Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class
A-11, Class A-12, Class A-13, Class A-14, Class A-PO, Class A-R and Class A-LR
Certificates.
CLASS A-3 PERCENTAGE: As to any Distribution Date, the percentage
equivalent (carried to six places rounded up) of a fraction the numerator of
which is the Class Certificate Balance of the Class A-3 Certificates immediately
prior to such date and the denominator of which is the aggregate of the Class
Certificate Balances of all Classes of Senior Certificates (other than the Class
A-PO Certificates) immediately prior to such date.
CLASS A-3 PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution
Date, the lesser of (i) the Class Certificate Balance of the Class A-3
Certificates and (ii) the product of (a) the Class A-3 Shift Percentage, (b) the
Class A-3 Percentage and (c) the Senior Principal Distribution Amount.
CLASS A-3 SHIFT PERCENTAGE: As to any Distribution Date, the
percentage indicated below:
DISTRIBUTION DATE OCCURRING IN CLASS A-3 SHIFT PERCENTAGE
------------------------------ --------------------------
April 1999 through March 2004.................. 0%
April 2004 through March 2005.................. 30%
April 2005 through March 2006.................. 40%
April 2006 through March 2007.................. 60%
April 2007 through March 2008.................. 80%
April 2008 and thereafter...................... 100%
CLASS A-9 LOSS ALLOCATION AMOUNT: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class A-9 Certificates with respect to such
Distribution Date prior to any reduction for the Class A-9 Loss Allocation
Amount and (b) the sum of the Class A-14 PAC Component Loss Amount and the Class
A-14 TAC Component Loss Amount with respect to such Distribution Date.
CLASS A-14 PAC COMPONENT LOSS AMOUNT: With respect to any
Distribution Date after the Senior Credit Support Depletion Date, the amount, if
any, by which the Component Balance of the Class A-14 PAC Component would be
reduced as a result of the allocation of any Realized Loss (other than an Excess
Loss) to such Component pursuant to Section 5.03(a)(ii)(1) or the allocation of
any reduction pursuant to Section 5.03(b) to such Component, in each case
without regard to the operation of Section 5.03(f).
CLASS A-14 PAC IO A NOTIONAL AMOUNT: As to any Distribution Date and
the Class A-14 PAC IO A Component, 11.53846154% of the Class Certificate Balance
of the Class A-11 Certificates immediately prior to such date.
CLASS A-14 PAC IO B NOTIONAL AMOUNT: As to any Distribution Date and
the Class A-14 PAC IO B Component, 9.23076923% of the Class Certificate Balance
of the Class A-12 Certificates immediately prior to such date.
CLASS A-14 TAC COMPONENT LOSS AMOUNT: With respect to any
Distribution Date after the Senior Credit Support Depletion Date, the amount, if
any, by which the Component Balance of the Class A-14 TAC Component would be
reduced as a result of the allocation of any Realized Loss (other than an Excess
Loss) to such Component pursuant to Section 5.03(a)(ii)(1) or the allocation of
any reduction pursuant to Section 5.03(b) to such Component, in each case
without regard to the operation of Section 5.03(f).
CLASS A-14 TAC IO NOTIONAL AMOUNT: As to any Distribution Date and
the Class A-14 TAC IO Component, 2.30769231% of the Class Certificate Balance of
the Class A-13 Certificates immediately prior to such date.
CLASS A-PO DEFERRED AMOUNT: As to any Distribution Date prior to the
Senior Credit Support Depletion Date, the aggregate of the applicable PO
Percentage of each Realized Loss, other than an Excess Loss, to be allocated to
the Class A-PO Certificates on such Distribution Date or previously allocated to
the Class A-PO Certificates and not yet paid to the Holders of the Class A-PO
Certificates pursuant to Section 5.02(a)(iii).
CLASS B CERTIFICATES: The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates.
CLASS CERTIFICATE BALANCE: With respect to any Class (other than the
Class A-14 Certificates) and any date of determination, the Initial Class
Certificate Balance of such Class (plus, in the case of the Class A-10
Certificates, any Accrual Distribution Amounts previously allocated thereto)
minus the sum of (i) all distributions of principal made with respect thereto,
(ii) all Realized Losses allocated thereto pursuant to Section 5.03(a), (iii)
all other reductions in Class Certificate Balance previously allocated thereto
pursuant to Section 5.03(b) and (iv) in the case of the Class A-9 Certificates,
any reduction allocated thereto pursuant to Section 5.03(f). The Class
Certificate Balance of the Class A-14 Certificates will equal the sum of the
Component Balances of the Class A-14 PAC Component and the Class A-14 TAC
Component.
CLASS INTEREST SHORTFALL: For any Distribution Date and each
interest-bearing Class (other than the Class A-14 Certificates), the amount by
which Accrued Certificate Interest for such Class (as reduced pursuant to
Section 5.02(c)) exceeds the amount of interest actually distributed on such
Class (or, in the case of the Class A-10 Certificates prior to the applicable
Accretion Termination Date, the amount included in the Accrual Distribution
Amount pursuant to clause (i) of the definition thereof, but not distributed as
interest on the Class A-10 Certificates) on such Distribution Date pursuant to
clause (i) of the definition of "Interest Distribution Amount".
CLASS UNPAID INTEREST SHORTFALL: As to any Distribution Date and
each interest-bearing Class (other than the Class A-14 Certificates), the amount
by which the aggregate Class Interest Shortfalls for such Class on prior
Distribution Dates exceeds the amount of interest actually distributed on such
Class (or, in the case of the Class A-10 Certificates prior to the applicable
Accretion Termination Date, the amount included in the Accrual Distribution
Amount pursuant to clause (ii) of the definition thereof, but not distributed as
interest on the Class A-10 Certificates) on such prior Distribution Dates
pursuant to clause (ii) of the definition of "Interest Distribution Amount".
CLOSING DATE: March 25, 1999.
CODE: The Internal Revenue Code of 1986, as amended.
COMPENSATING INTEREST: As defined in Section 3.17.
COMPONENT BALANCE: With respect to the Class A-14 PAC Component and
Class A-14 TAC Component, and any date of determination, the Initial Component
Balance of such Component (plus, in the case of the Class A-14 TAC Component,
any Accrual Distribution Amounts previously allocated thereto) minus the sum of
(i) all distributions of principal made with respect thereto, (ii) all Realized
Losses allocated thereto pursuant to Section 5.03(a) and (iii) all other
reductions in Component Balance previously allocated thereto pursuant to Section
5.03(b); provided, however, that the Component Balance of such Component will
not be reduced pursuant to clauses (ii) and (iii) in accordance with the
provisions of Section 5.03(f). The Class A-14 PAC IO A Component, the Class A-14
PAC IO B Component and the Class A-14 TAC IO Component are interest-only
Components and have no Component Balance.
COMPONENT INTEREST DISTRIBUTION AMOUNT: For any Distribution Date
and each Component, the sum of (i) the Accrued Component Interest, subject to
reduction pursuant to Section 5.02(c), and (ii) any Component Unpaid Interest
Shortfall for such Component.
COMPONENT INTEREST SHORTFALL: For any Distribution Date and each
Component, the amount by which Accrued Component Interest for such Component (as
reduced pursuant to Section 5.02(c)) exceeds the amount of interest actually
distributed on such Component (or, in the case of the Class A-14 TAC Component
prior to the applicable Accretion Termination Date, the amount included in the
Accrual Distribution Amount pursuant to clause (i) of the definition thereof,
but not distributed as interest on the Class A-14 TAC Component) on such
Distribution Date pursuant to clause (i) of the definition of "Component
Interest Distribution Amount."
COMPONENT RATE: As to each Component, the per annum rate set forth
in the Preliminary Statement.
COMPONENT UNPAID INTEREST SHORTFALL: As to any Distribution Date and
Component, the amount by which the aggregate Component Interest Shortfalls for
such Component on prior Distribution Dates exceeds the amount of interest
actually distributed on such Component (including, in the case of the Class A-14
TAC Component prior to the applicable Accretion Termination Date, the amount
included in the Accrual Distribution Amount pursuant to clause (ii) of the
definition thereof, but not distributed as interest on the Class A-14 TAC
Component) on such prior Distribution Dates pursuant to clause (ii) of the
definition of "Component Interest Distribution Amount."
CORPORATE TRUST OFFICE: The principal office of the Trustee at which
at any particular time its certificate transfer services are conducted, which
office at the date of the execution of this instrument is located at 101 Barclay
Street - 12E, New York, New York 10286, Attention: Corporate Trust - MBS (Fax:
(212) 815-5309).
CORRESPONDING UPPER-TIER CLASS, CLASSES, COMPONENT OR COMPONENTS: As
to the following Uncertificated Lower-Tier Interests, the Corresponding
Upper-Tier Class, Classes, Component or Components, as follows:
UNCERTIFICATED LOWER-TIER Corresponding Upper-Tier Class,
INTEREST Classes, Component or Components
Class A-L1 Interest Class A-1 Certificates, Class A-2
Certificates, Class A-3
Certificates, Class A-4
Certificates, Class A-5
Certificates, Class A-6
Certificates, Class A-9
Certificates, Class A-10
Certificates, Class A14 PAC
Component and Class A-14 TAC
Component
Class A-L7 Interest Class A-7 Certificates
Class A-L8 Interest Class A-8 Certificates
Class A-L11 Interest Class A-11 Certificates and Class
A-14 PAC IO A Component
Class A-L12 Interest Class A-12 Certificates and Class
A-14 PAC IO B Component
Class A-L13 Interest Class A-13 Certificates and Class
A-14 TAC IO Component
Class A-LPO Interest Class A-PO Certificates
Class A-LUR Interest Class A-R Certificate
Class B-L1 Interest Class B-1 Certificates
Class B-L2 Interest Class B-2 Certificates
Class B-L3 Interest Class B-3 Certificates
Class B-L4 Interest Class B-4 Certificates
Class B-L5 Interest Class B-5 Certificates
Class B-L6 Interest Class B-6 Certificates
CUSTODIAN: Any Custodian appointed by the Trustee in accordance with
the terms of this Agreement.
CUSTOMARY SERVICING PROCEDURES: With respect to each Servicer,
procedures (including collection procedures) that such Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located.
CUT-OFF DATE: March 1, 1999.
CUT-OFF DATE POOL PRINCIPAL BALANCE: The aggregate of the Cut-Off
Date Principal Balances of the Mortgage Loans which is $500,376,622.26.
CUT-OFF DATE PRINCIPAL BALANCE: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-Off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
DEBT SERVICE REDUCTION: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the related Servicer
is pursuing an appeal of the court order giving rise to any such modification
and (b)(1) such Mortgage Loan is not in default with respect to payment due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-Off Date or (2) Monthly Payments are being advanced by the related
Servicer in accordance with the terms of such Mortgage Loan as in effect on the
Cut-Off Date.
DEBT SERVICE REDUCTION MORTGAGE LOAN: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
DEFECTIVE MORTGAGE LOAN: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Sections 2.02 or 2.05.
DEFICIENT VALUATION: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the related Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-Off Date or (2) Monthly Payments are being advanced by the related
Servicer in accordance with the terms of such Mortgage Loan as in effect on the
Cut-Off Date.
DEFICIENT VALUATION MORTGAGE LOAN: Any Mortgage Loan that became the
subject of a Deficient Valuation.
DEFINITIVE CERTIFICATES: As defined in Section 6.02(c)(iii).
DEPOSITOR: Bank of America Mortgage Securities, Inc., a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
DEPOSITORY: The Depository Trust Company, the nominee of which is
Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
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: As to any Distribution Date, the 16th day of the
month of the related Distribution Date or, if such 16th day is not a Business
Day, the Business Day immediately preceding such 16th day.
DISCOUNT MORTGAGE LOAN: Any Mortgage Loan with a Net Mortgage
Interest Rate that is less than 6.50% per annum.
DISTRIBUTION DATE: The 25th day of each month beginning in April
1999 (or, if such day is not a Business Day, the next Business Day).
DUE DATE: As to any Distribution Date and each Mortgage Loan, the
first day in the calendar month of such Distribution Date.
ELIGIBLE ACCOUNT: Any of (i) an account or accounts maintained with
(a) NationsBank, N.A. or any successor thereto, (b) Bank of America, FSB, or (c)
a federal or state chartered depository institution or trust company the
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) have the highest
short-term ratings of each Rating Agency 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 trust department of a federal or state chartered depository institution or
trust company, acting in its fiduciary capacity or (iv) any other account
acceptable to each Rating Agency. 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 CERTIFICATES: The Class A-9 and Class B
Certificates.
ESCROW ACCOUNT: As defined in Section 3.09.
ESCROW PAYMENTS: The amounts constituting taxes, assessments,
Primary Insurance Policy premiums, fire and hazard insurance premiums and other
payments as may be required to be escrowed by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
EVENT OF DEFAULT: As defined in Section 8.01.
EXCESS LOSSES: For any Distribution Date, the amount of any (i)
Fraud Losses in excess of the Fraud Loss Amount, (ii) Special Hazard Losses in
excess of the Special Hazard Loss Amount or (iii) Bankruptcy Losses in excess of
the Bankruptcy Loss Amount.
EXCESS PROCEEDS: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
related Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
FINAL DISTRIBUTION DATE: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
FINANCIAL MARKET SERVICE: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Trustee.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
FITCH: Fitch IBCA, Inc., or any successor thereto.
FNMA: Fannie Mae, or any successor thereto.
FRACTIONAL INTEREST: As defined in Section 5.02(d).
FRAUD LOSS: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any related Primary Insurance Policy
because of such fraud, dishonesty or misrepresentation.
FRAUD LOSS AMOUNT: For each Distribution Date occurring during the
period from the Closing Date through the first anniversary of the Cut-Off Date,
the Initial Fraud Loss Amount reduced by the amount of Fraud Losses allocated to
the Certificates. Thereafter, the Fraud Loss Amount shall be equal to the lesser
of (i) the Initial Fraud Loss Amount reduced by the amount of Fraud Losses
allocated to the Certificates and (ii) for each Distribution Date occurring (a)
during the period from the day after the first anniversary through the third
anniversary of the Cut-Off Date, 1% of the Pool Stated Principal Balance, (b)
during the period from the day after the third anniversary through the fifth
anniversary of the Cut-Off Date, 0.5% of the Pool Stated Principal Balance, and
(c) after the fifth anniversary of the Cut-Off Date, zero.
HOLDER: A Certificateholder.
INDEPENDENT: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor and the Servicers,
(ii) does not have any direct financial interest or any material indirect
financial interest in the Depositor or either Servicer or in an affiliate of any
of them, and (iii) is not connected with the Depositor or either Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
INDIRECT DEPOSITORY PARTICIPANT: A broker, dealer, bank or other
financial institution or other Person maintaining a custodial relationship with
a Depository Participant.
INITIAL BANKRUPTCY LOSS AMOUNT: $145,566.42.
INITIAL CLASS CERTIFICATE BALANCE: As to each Class of Certificates,
the Class Certificate Balance set forth in the Preliminary Statement.
INITIAL COMPONENT BALANCE: As to the Class A-14 PAC Component and
the Class A-14 TAC Component, the Component Balance set forth in the Preliminary
Statement. The Class A-14 PAC IO A Component, the Class A-14 PAC IO B Component
and the Class A-14 TAC IO Component are interest-only Components and have no
Initial Component Balance.
INITIAL FRAUD LOSS AMOUNT: $5,003,766.22.
INITIAL SPECIAL HAZARD AMOUNT: $5,093,858.04.
INSURANCE POLICY: With respect to any Mortgage Loan included in the
Trust Estate, any related insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
INSURANCE PROCEEDS: Proceeds paid by an insurer pursuant to any
Insurance Policy, 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 ACCRUAL PERIOD: As to any Distribution Date and each Class
of Certificates (other than the Class A-14 and Class A-PO Certificates) and each
Component, the period from and including the first day of the calendar month
preceding the calendar month of such Distribution Date to but not including the
first day of the calendar month of such Distribution Date.
INTEREST DISTRIBUTION AMOUNT: For any Distribution Date and each
interest-bearing Class (other than the Class A-14 Certificates), the sum of (i)
the Accrued Certificate Interest, subject to reduction pursuant to Section
5.02(c) and (ii) any Class Unpaid Interest Shortfall for such Class. For any
Distribution Date and the Class A-14 Certificates, the sum of the Component
Interest Distribution Amounts.
LIQUIDATED MORTGAGE LOAN: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
related Servicer has certified (in accordance with this Agreement) that it has
received all proceeds it expects to receive in connection with the liquidation
of such Mortgage Loan including the final disposition of an REO Property.
LIQUIDATION PROCEEDS: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
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 Servicing Fees and Advances.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan and any date
of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
LOWER-TIER DISTRIBUTION AMOUNT: As defined in Section 5.02(a).
LOWER-TIER REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account, the insurance policies, if any,
relating to a Mortgage Loan and property which secured a Mortgage Loan and which
has been acquired by foreclosure or deed in lieu of foreclosure.
MONTHLY PAYMENT: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
MORTGAGE: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
MORTGAGE FILE: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
MORTGAGE INTEREST RATE: As to any Mortgage Loan, the per annum rate
of interest at which interest accrues on the principal balance of such Mortgage
Loan in accordance with the terms of the related Mortgage Note.
MORTGAGE LOAN PURCHASE AGREEMENT: Each of the BA Mortgage Loan
Purchase Agreement and the NMC Mortgage Loan Purchase Agreement.
MORTGAGE LOAN SCHEDULE: The list of Mortgage Loans (as from time to
time amended by the applicable Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Defective Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Estate and from time to time subject to this Agreement, attached hereto as
EXHIBIT D-1 and EXHIBIT D-2, setting forth the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number; (ii) a
code indicating whether the Mortgaged Property is owner-occupied; (iii) the
property type for each Mortgaged Property; (iv) the original months to maturity
or the remaining months to maturity from the Cut-Off Date; (v) the Loan-to-Value
Ratio at origination; (vi) the Mortgage Interest Rate; (vii) the date on which
the first Monthly Payment was due on the Mortgage Loan, and, if such date is not
the Due Date currently in effect, such Due Date; (viii) the stated maturity
date; (ix) the amount of the Monthly Payment as of the Cut-Off Date; (x) the
paid-through date; (xi) the original principal amount of the Mortgage Loan;
(xii) the principal balance of the Mortgage Loan as of the close of business on
the Cut-Off Date, after application of payments of principal due on or before
the Cut-Off Date, whether or not collected, and after deduction of any payments
collected of scheduled principal due after the Cut-Off Date; (xiii) a code
indicating the purpose of the Mortgage Loan; (xiv) a code indicating the
documentation style; and (xv) the Appraised Value. With respect to the Mortgage
Loans in the aggregate, the Mortgage Loan Schedule shall set forth the following
information, as of the Cut-Off Date: (i) the number of Mortgage Loans; (ii) the
current aggregate outstanding principal balance of the Mortgage Loans; (iii) the
weighted average Mortgage Rate of the Mortgage Loans; and (iv) the weighted
average months to maturity of the Mortgage Loans.
MORTGAGE LOANS: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are held as a part
of the Trust Estate (including any Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
MORTGAGE NOTE: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
MORTGAGED PROPERTY: The underlying property securing a Mortgage
Loan.
MORTGAGOR: The obligor on a Mortgage Note.
NET MORTGAGE INTEREST RATE: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the first day of
the month preceding the month of the related Distribution Date reduced by the
related Servicing Fee Rate and the Trustee Fee Rate.
NMC MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase
Agreement, dated March 25, 1999, between the NMC Seller, as seller, and the
Depositor, as purchaser.
NMC MORTGAGE LOANS: The Mortgage Loans serviced by the NMC Servicer
and identified on EXHIBIT D-2 as such Exhibit is amended from time to time to
reflect the addition of Substitute Mortgage Loans and the deletion of Defective
Mortgage Loans pursuant to the provisions of this Agreement.
NMC SELLER: NationsBanc Mortgage Corporation, a Texas corporation,
or its successor in interest, as seller of the NMC Mortgage Loans under the NMC
Mortgage Loan Purchase Agreement.
NMC SERVICER: NationsBanc Mortgage Corporation, a Texas corporation,
or its successor in interest, in its capacity as servicer of the NMC Mortgage
Loans, or any successor servicer appointed as herein provided.
NMC SERVICER CUSTODIAL ACCOUNT: The separate Eligible Account or
Accounts created and maintained by the NMC Servicer pursuant to Section 3.08(b).
NON-PO PERCENTAGE: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net Mortgage Interest
Rate of such Discount Mortgage Loan and the denominator of which is 6.50%. As to
any Mortgage Loan that is not a Discount Mortgage Loan, 100%.
NON-PO PRINCIPAL AMOUNT: As to any Distribution Date, the sum of the
applicable Non-PO Percentage of (a) the principal portion of each Monthly
Payment (without giving effect, prior to the reduction of the Bankruptcy Loss
Amount to zero, to any reductions thereof caused by any Debt Service Reductions)
due on each Mortgage Loan on the related Due Date, (b) the Stated Principal
Balance, as of the date of repurchase, of each Mortgage Loan that was
repurchased by the Depositor pursuant to this Agreement as of such Distribution
Date, (c) any Substitution Adjustment Amount in connection with a Defective
Mortgage Loan received with respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans that
are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to each Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of Liquidation Proceeds
allocable to principal received during the calendar month preceding the month of
such Distribution Date with respect to such Mortgage Loan and (f) all Principal
Prepayments received during the calendar month preceding the month of such
Distribution Date.
NON-SUPPORTED INTEREST SHORTFALLS: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
Compensating Interest for such Distribution Date.
NON-U.S. PERSON: A Person other than a U.S. Person.
NONRECOVERABLE ADVANCE: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the related Servicer, will
not or, in the case of a proposed Advance, would not be ultimately recoverable
from the related Mortgagor, related Liquidation Proceeds, or other recoveries in
respect of the related Mortgage Loan.
NOTIONAL AMOUNT: As to any Distribution Date, the Class A-14 PAC IO
A Notional Amount, the Class A-14 PAC IO B Notional Amount or the Class A-14 TAC
IO Notional Amount.
OFFERED CERTIFICATES: The Class A, Class B-1, Class B-2 and Class
B-3 Certificates.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or either
Servicer, as the case may be, and delivered to the Trustee.
OPINION OF COUNSEL: A written opinion of counsel acceptable to the
Trustee, who may be counsel for the Depositor or a Servicer, except that any
opinion of counsel relating to the qualification of the Trust Estate as two
separate REMICs or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
ORIGINAL FRACTIONAL INTEREST: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class B-1 1.85%
Class B-2 1.10%
Class B-3 0.75%
Class B-4 0.40%
Class B-5 0.20%
Class B-6 0.00%
ORIGINAL SUBORDINATE CERTIFICATE BALANCE: $20,015,455.77.
OTS: The Office of Thrift Supervision.
OUTSTANDING MORTGAGE LOAN: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage Loan prior to such Due Date and which
was not purchased from the Trust prior to such Due Date pursuant to Sections
2.02 or 2.05.
OWNERSHIP INTEREST: As to any Certificate, any ownership or security
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, as owner or as pledgee.
PAC PRINCIPAL AMOUNT: As to any Distribution Date and for the Class
A-11 or Class A-12 Certificates or the Class A-14 PAC Component, the amount, if
any, that would reduce the Class Certificate Balance or Component Balance
thereof to the balance shown in the tables set forth in EXHIBIT K with respect
to such Distribution Date.
PASS-THROUGH RATE: As to each Class of interest-bearing Certificates
(other than the Class A-14 Certificates), the per annum rate set forth in the
Preliminary Statement.
PAYING AGENT: As defined in Section 9.13.
PERCENTAGE INTEREST: As to any Certificate, the percentage obtained
by dividing the initial Certificate Balance of such Certificate by the Initial
Class Certificate Balance of the Class of which such Certificate is a part.
PERIODIC ADVANCE: The payment required to be made by a Servicer with
respect to any Distribution Date pursuant to Section 3.20, the amount of any
such payment being equal to the aggregate of Monthly Payments (net of the
Servicing Fee) on the Mortgage Loans (including any REO Property) serviced by
such Servicer that were due on the related Due Date and not received as of the
close of business on the related Determination Date, less the aggregate amount
of any such delinquent payments that such Servicer has determined would
constitute a Nonrecoverable Advance if advanced.
PERMITTED INVESTMENTS: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, FHLMC, FNMA or any agency or instrumentality of the
United States when such obligations are backed by the full faith and
credit of the United States; provided that such obligations of FHLMC
or FNMA shall be limited to senior debt obligations and mortgage
participation certificates other than investments in mortgage-backed
or mortgage participation securities with yields evidencing extreme
sensitivity to the rate of principal payments on the underlying
mortgages, which shall not constitute Permitted Investments
hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition
thereof with a corporation incorporated under the laws of the United
States or any state thereof rated not lower than "A-1" by S&P and
"F-1" by Fitch;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the
United States or any state thereof, rated not lower than "A-1" by
S&P and "F-1" by Fitch;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United
States or any state thereof which is rated not lower than "A-1" by
S&P and "F-1" by Fitch;
(v) investments in money market funds (including funds of the Trustee or
its affiliates, or funds for which an affiliate of the Trustee acts
as advisor, as well as funds for which the Trustee and its
affiliates may receive compensation) rated either "AAAm" or "AAAm G"
by S&P, and "AAA" by Fitch or otherwise approved in writing by each
Rating Agency; and
(vi) other obligations or securities that are acceptable to each Rating
Agency and, as evidenced by an Opinion of Counsel obtained by either
Servicer, will not affect the qualification of either of the REMICs
as a REMIC;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
PERMITTED TRANSFEREE: Any Person other than (i) the United States,
or any State or any 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 which 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) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C) and (v) any other Person so designated by either Servicer
based on an Opinion of Counsel to the effect that any transfer to such Person
may cause the Trust or any other Holder of a Residual Certificate to incur tax
liability that would not be imposed other than on account of such transfer. The
terms "United States," "State" and "international organization" shall have the
meanings set forth in Code Section 7701 or successor provisions.
PERSON: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHYSICAL CERTIFICATES: The Class B-4, Class B-5, Class B-6, Class
A-R and Class A-LR Certificates.
PLAN: As defined in Section 6.02(e).
PO PERCENTAGE: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan. As to any Mortgage Loan that is not a
Discount Mortgage Loan, 0%.
PO PRINCIPAL AMOUNT: As to any Distribution Date, the sum of the
applicable PO Percentage of (a) the principal portion of each Monthly Payment
(without giving effect, prior to the reduction of the Bankruptcy Loss Amount to
zero, to any reductions thereof caused by any Debt Service Reductions) due on
each Mortgage Loan on the related Due Date, (b) the Stated Principal Balance, as
of the date of repurchase, of each Mortgage Loan that was repurchased by the
related Seller or the Depositor pursuant to this Agreement as of such
Distribution Date, (c) any Substitution Adjustment Amount in connection with any
Defective Mortgage Loan received with respect to such Distribution Date, (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans that
are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to each Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of Liquidation Proceeds
allocable to principal received with respect to such Mortgage Loan during the
calendar month preceding the month of such Distribution Date with respect to
such Mortgage Loan and (f) all Principal Prepayments received during the
calendar month preceding the month of such Distribution Date.
POOL DISTRIBUTION AMOUNT: As to any Distribution Date, the excess of
(a) the sum of (i) the aggregate of (A) the interest portion of any Monthly
Payment (net of the Servicing Fee) and the principal portion of any Monthly
Payment due on the Due Date in the month in which such Distribution Date occurs
and which is received prior to the related Determination Date and (B) all
Periodic Advances and payments of Compensating Interest made by the Servicers in
respect of such Distribution Date deposited to the Servicer Custodial Accounts
pursuant to Section 3.08(b)(vii); (ii) all Liquidation Proceeds received during
the preceding calendar month and deposited to the Servicer Custodial Accounts
pursuant to Section 3.08(b)(iii); (iii) all Principal Prepayments received
during the month preceding the month of such Distribution Date and deposited to
the Servicer Custodial Accounts pursuant to Section 3.08(b)(i) during such
period; (iv) in connection with Defective Mortgage Loans, as applicable, the
aggregate of the Repurchase Prices and Substitution Adjustment Amounts deposited
on the related Remittance Date pursuant to Section 3.08(b)(vi); and (v) any
other amounts in the Servicer Custodial Accounts deposited therein pursuant to
Sections 3.08(b)(iv), (v) and (viii) in respect of such Distribution Date; over
(b) any (i) amounts permitted to be withdrawn from the Servicer Custodial
Accounts pursuant to clauses (i) through (vii), inclusive, of Section 3.11(a)
and (ii) amounts permitted to be withdrawn from the Certificate Account pursuant
to clauses (i) and (ii) of Section 3.11(b).
POOL STATED PRINCIPAL BALANCE: As to any Distribution Date, the
aggregate Stated Principal Balances of all Mortgage Loans that were Outstanding
Mortgage Loans immediately following the Due Date in the month of such
Distribution Date.
PREPAYMENT INTEREST SHORTFALL: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding such Distribution Date, the amount, if any, by which one month's
interest at the related Mortgage Interest Rate (net of the Servicing Fee) on
such Principal Prepayment exceeds the amount of interest paid in connection with
such Principal Prepayment.
PRIMARY INSURANCE POLICY: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan,
in each case issued by an insurer acceptable to FNMA or FHLMC.
PRINCIPAL-ONLY CERTIFICATES: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest. The Class A-PO
Certificates are the sole Class of Principal-Only Certificates.
PRINCIPAL PREPAYMENT: Any payment or other recovery of principal on
a Mortgage Loan (other than Liquidation Proceeds) which is received in advance
of its scheduled Due Date and is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
PRINCIPAL PREPAYMENT IN FULL: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
PRIVATE CERTIFICATES: The Class B-4, Class B-5 and Class B-6
Certificates.
PRO RATA SHARE: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the portion of the
Subordinate Principal Distribution Amount allocable to such Class, equal to the
product of the Subordinate Principal Distribution Amount for such Distribution
Date and a fraction, the numerator of which is the related Class Certificate
Balance thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinate Certificates that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be 0%.
QUALIFIED APPRAISER: An appraiser of a Mortgaged Property duly
appointed by the originator of the related Mortgage Loan, who had no interest,
direct or indirect, in such Mortgaged Property or in any loan made on the
security thereof, whose compensation is not affected by the approval or
disapproval of the related Mortgage Loan and who met the minimum qualifications
of FNMA or FHLMC.
RATING AGENCY: Each of Fitch and S&P. If either such organization or
a successor is no longer in existence, "Rating Agency" shall be such nationally
recognized statistical rating organization, or other comparable Person, as is
designated by the Depositor, notice of which designation shall be given to the
Trustee. References herein to a given rating or rating category of a Rating
Agency shall mean such rating category without giving effect to any modifiers.
REALIZED LOSS: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, 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. 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 principal portion of the related Monthly Payment has been reduced.
RECORD DATE: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month of the related
Distribution Date.
REFINANCE MORTGAGE LOAN: Any Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
REGULAR CERTIFICATES: As defined in the Preliminary Statement
hereto.
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
RELIEF ACT REDUCTION: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (ii) interest accrued pursuant to the terms of the Mortgage Note on
the same principal amount and for the same period as the interest collectible on
such Mortgage Loan for the most recently ended calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC CERTIFICATE MATURITY DATE: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.08.
REMIC PROVISIONS: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
REMITTANCE DATE: As to any Distribution Date, by 2:00 p.m. Eastern
time on the Business Day immediately preceding such Distribution Date.
REO DISPOSITION PERIOD: As defined in Section 3.14.
REO PROCEEDS: Proceeds, net of any related expenses of the related
Servicer, received in respect of any REO Property (including, without
limitation, proceeds from the rental of the related Mortgaged Property) which
are received prior to the final liquidation of such Mortgaged Property.
REO PROPERTY: A Mortgaged Property acquired by a Servicer on behalf
of the Trust through foreclosure or deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
REPURCHASE PRICE: As to any Defective Mortgage Loan repurchased on
any date pursuant to Sections 2.02 or 2.05, an amount equal to the sum of (i)
the unpaid principal balance thereof and (ii) the unpaid accrued interest
thereon at the applicable Mortgage Interest Rate from the Due Date to which
interest was last paid by the Mortgagor to the first day of the month following
the month in which such Mortgage Loan became eligible to be repurchased.
REQUEST FOR RELEASE: The Request for Release submitted by a Servicer
to the Trustee or the Custodian on behalf of the Trustee, substantially in the
form of EXHIBIT E.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement in respect of such Mortgage Loan.
RESIDUAL CERTIFICATE: Either of the Class A-R or Class A-LR
Certificate.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any
officer of the Corporate Trust Department of the Trustee, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and having responsibility for the
administration of this Agreement.
RESTRICTED CLASSES: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The McGraw-Hill Companies,
Inc., or any successor thereto.
SELLER: With respect to the BA Loans, the BA Seller and, with
respect to the NMC Loans, the NMC Seller.
SENIOR CERTIFICATES: The Class A Certificates.
SENIOR CREDIT SUPPORT DEPLETION DATE: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
SENIOR PERCENTAGE: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing the aggregate
Class Certificate Balance of the Senior Certificates (other than the Class A-PO
Certificates) immediately prior to such Distribution Date by the aggregate Class
Certificate Balance of all Classes of Certificates (other than the Class A-PO
Certificates) immediately prior to such Distribution Date.
SENIOR PREPAYMENT PERCENTAGE: For any Distribution Date during the
five years beginning on the first Distribution Date, 100%. The Senior Prepayment
Percentage for any Distribution Date occurring on or after the fifth anniversary
of the first Distribution Date will, except as provided herein, be as follows:
for any Distribution Date in the first year thereafter, the Senior Percentage
plus 70% of the Subordinate Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the Senior Percentage plus 60%
of the Subordinate Percentage for such Distribution Date; for any Distribution
Date in the third year thereafter, the Senior Percentage plus 40% of the
Subordinate Percentage for such Distribution Date; for any Distribution Date in
the fourth year thereafter, the Senior Percentage plus 20% of the Subordinate
Percentage for such Distribution Date; and for any Distribution Date in the
fifth or later years thereafter, the Senior Percentage for such Distribution
Date (unless on any of the foregoing Distribution Dates the Senior Percentage
exceeds the initial Senior Percentage, in which case the Senior Prepayment
Percentage for such Distribution Date will once again equal 100%).
Notwithstanding the foregoing, no decrease in the Senior Prepayment Percentage
will occur unless both of the Senior Step Down Conditions are satisfied.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution Date,
the sum of (i) the Senior Percentage of the applicable Non-PO Percentage of all
amounts described in clauses (a) through (d) of the definition of "Non-PO
Principal Amount" for such Distribution Date and (ii) the Senior Prepayment
Percentage of the applicable Non-PO Percentage of the amounts described in
clauses (e) and (f) of the definition of "Non-PO Principal Amount" for such
Distribution Date; provided, however, that if a Debt Service Reduction that is
an Excess Loss is sustained with respect to a Mortgage Loan that is not a
Liquidated Mortgage Loan, the Senior Principal Distribution Amount will be
reduced on the related Distribution Date by the Senior Percentage of the Non-PO
Percentage of the principal portion of such Debt Service Reduction.
SENIOR STEP DOWN CONDITIONS: As of any Distribution Date as to which
any decrease in the Senior Prepayment Percentage applies, (i) the outstanding
principal balance of all Mortgage Loans (including, for this purpose, any
Mortgage Loans in foreclosure or any REO Property) delinquent 60 days or more
(averaged over the preceding six month period), as a percentage of the aggregate
Class Certificate Balance of the Subordinate Certificates (averaged over the
preceding six-month period), is not equal to or greater than 50% or (ii)
cumulative Realized Losses with respect to the Mortgage Loans as of the
applicable Distribution Date do not exceed the percentages of the Original
Subordinate Certificate Balance set forth below:
PERCENTAGE OF
ORIGINAL SUBORDINATE
DISTRIBUTION DATE OCCURRING CERTIFICATE BALANCE
--------------------------- -------------------
April 2004 through March 2005 30%
April 2005 through March 2006 35%
April 2006 through March 2007 40%
April 2007 through March 2008 45%
April 2008 and thereafter 50%
SERVICER: With respect to the BA Mortgage Loans, the BA Servicer
and, with respect to the NMC Mortgage Loans, the NMC Servicer.
SERVICER ADVANCE DATE: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Business Day immediately preceding such Distribution Date.
SERVICER CUSTODIAL ACCOUNT: The NMC Servicer Custodial Account or
the BA Servicer Custodial Account, as applicable.
SERVICER'S CERTIFICATE: The monthly report required by Section 4.01.
SERVICING ADVANCES: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by either Servicer of its
servicing obligations, including, but not limited to (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) expenses reimbursable
to such Servicer pursuant to Section 3.14 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.12.
SERVICING FEE: With respect to each Mortgage Loan and Distribution
Date, the amount of the fee payable to the related Servicer, which shall, for
such Distribution Date, be equal to one-twelfth of the product of the Servicing
Fee Rate with respect to such Mortgage Loan and the Stated Principal Balance of
such Mortgage Loan, subject to reduction as provided in Section 3.17. Such fee
shall be payable monthly, computed on the basis of the same Stated Principal
Balance and period respecting which any related interest payment on a Mortgage
Loan is computed. Each Servicer's right to receive the Servicing Fee is limited
to, and payable solely from, the interest portion (including recoveries with
respect to interest from Liquidation Proceeds and other proceeds, to the extent
permitted by Section 3.11) of related Monthly Payments collected by such
Servicer, or as otherwise provided under Section 3.11.
SERVICING FEE RATE: With respect to each Mortgage Loan, the per
annum rate equal to (i) the related Mortgage Interest Rate less (ii) the sum of
6.50% and the Trustee Fee Rate; provided, however, that the Servicing Fee Rate
will not be less than 0.25% per annum with respect to any Mortgage Loan.
SERVICING FILE: The items pertaining to a particular Mortgage Loan
referred to in EXHIBIT J hereto, and any additional documents required to be
added to the Servicing File pursuant to the Agreement.
SERVICING OFFICER: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Trustee by such
Servicer, as such list may from time to time be amended.
SIMILAR LAW: As defined in Section 6.02(e).
SPECIAL HAZARD LOSS: As to a Mortgaged Property, any Realized Loss
on account of direct physical loss, exclusive of (i) any loss covered by a
hazard policy or a flood insurance policy maintained in respect of such
Mortgaged Property pursuant to Section 3.12 and (ii) any loss caused by or
resulting from:
(a) (i) wear and tear, deterioration, rust or corrosion, mold, wet
or dry rot; inherent vice or latent defect; animals, birds, vermin or insects;
or
(ii) settling, subsidence, cracking, shrinkage, building or
expansion of pavements, foundations, walls, floors, roofs or ceilings;
(b) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for the
ensuing loss;
(c) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and whether
such loss is direct or indirect, proximate or remote; or
(d) (i) hostile or warlike action in time of peace or war, including
action in hindering, combating or defending against an actual, impending or
expected attack (A) by any government or sovereign power (de jure or de facto),
or by any authority maintaining or using military, naval or air forces; or (B)
by military, naval or air forces; or (C) by an agent of any such government,
power, authority or forces;
(ii) any weapon of war or facility for producing same employing
atomic fission, radioactive force or chemical or biological contaminants,
whether in time of peace or war; or
(iii) insurrection, rebellion, revolution, civil war, usurped power
or action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any government
or public authority, or risks of contraband or illegal transportation or
trade.
SPECIAL HAZARD LOSS AMOUNT: As to any Distribution Date, the lesser
of (a) the greatest of (i) 1% of the Pool Stated Principal Balance of the
Mortgage Loans, (ii) twice the principal balance of the largest Mortgage Loan,
and (iii) the aggregate principal balance of all Mortgage Loans secured by
Mortgaged Properties located in the single California five-digit postal zip code
having the highest aggregate principal balance of any zip code area (all
principal balances to be calculated as of the first day of the month preceding
such Distribution Date after giving effect to Monthly Payments then due, whether
or not paid) and (b) the Initial Special Hazard Loss Amount, reduced (but not
below zero) by the amount of Realized Losses in respect of Special Hazard
Mortgage Loans previously incurred during the period from the Cut-Off Date
through the last day of the month preceding the month of such Distribution Date.
The Special Hazard Loss Amount may be further reduced from time to time below
the amounts specified above with the written consent of the Rating Agencies and
without resulting in a downgrading to the then-current rating of the
Certificates.
SPECIAL HAZARD MORTGAGE LOAN: Any Liquidated Mortgage Loan as to
which the ability to recover thereon was substantially impaired by reason of a
hazard or loss not covered by a hazard policy or flood insurance policy
maintained in respect of such Mortgaged Property pursuant to Section 3.12.
STATED PRINCIPAL BALANCE: As to any Mortgage Loan and date, the
unpaid principal balance of such Mortgage Loan as of the Due Date immediately
preceding such date as specified in the amortization schedule at the time
relating thereto (before any adjustment to such amortization schedule by reason
of any moratorium or similar waiver or grace period) after giving effect to any
previous partial Principal Prepayments and Liquidation Proceeds allocable to
principal (other than with respect to any Liquidated Mortgage Loan) and to the
payment of principal due on such Due Date and irrespective of any delinquency in
payment by the related Mortgagor, and after giving effect to any Deficient
Valuation.
SUBORDINATE CERTIFICATES: The Class B Certificates.
SUBORDINATE PERCENTAGE: As of any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
SUBORDINATE PREPAYMENT PERCENTAGE: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date.
SUBORDINATE PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date, an amount equal to the sum of (i) the Subordinate Percentage
of the applicable Non-PO Percentage of all amounts described in clauses (a)
through (d) of the definition of "Non-PO Principal Amount" for such Distribution
Date and (ii) the Subordinate Prepayment Percentage of the applicable Non-PO
Percentage of the amounts described in clauses (e) and (f) of the definition of
"Non-PO Principal Amount" for such Distribution Date; provided, however, that if
a Debt Service Reduction that is an Excess Loss is sustained with respect to a
Mortgage Loan that is not a Liquidated Mortgage Loan, the Subordinate Principal
Distribution Amount will be reduced on the related Distribution Date by the
Subordinate Percentage of the applicable Non-PO Percentage of the principal
portion of such Debt Service Reduction.
SUBSERVICER: Any Person with which a Servicer has entered into a
Subservicing Agreement and which satisfies the requirements set forth therein.
SUBSERVICING AGREEMENT: Any subservicing agreement between a
Servicer and any Subservicer relating to servicing and/or administration of
certain Mortgage Loans as provided in Section 3.02.
SUBSTITUTE MORTGAGE LOAN: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of, and not more
than 10% less than, the Stated Principal Balance of the Defective Mortgage Loan;
(ii) have a Net Mortgage Interest Rate equal to that of the Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (iv) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Defective Mortgage Loan; and (v)
comply with each Mortgage Loan representation and warranty set forth in the Sale
Agreement relating to the Defective Mortgage Loan. More than one Substitute
Mortgage Loan may be substituted for a Defective Mortgage Loan if such
Substitute Mortgage Loans meet the foregoing attributes in the aggregate.
SUBSTITUTION ADJUSTMENT AMOUNT: As defined in Section 2.02.
TAC GROUP: The Class A-13 Certificates and the Class A-14 TAC
Component, collectively.
TAC PRINCIPAL AMOUNT: As to any Distribution Date and for the TAC
Group, the amount, if any, that would reduce the balance of the TAC Group to the
balance shown in the table set forth in EXHIBIT K with respect to such
Distribution Date.
TAX MATTERS PERSON: The person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
TREASURY REGULATIONS: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
TRUST: The trust created by this Agreement.
TRUST ESTATE: The corpus of the Trust created to the extent
described herein, consisting of the Mortgage Loans, such assets as shall from
time to time be identified as deposited in the Servicer Custodial Accounts or
the Certificate Account, in accordance with this Agreement, REO Property, the
Primary Insurance Policies and any other Required Insurance Policy.
TRUSTEE: The Bank of New York, and its successors-in-interest and,
if a successor trustee is appointed hereunder, such successor, as trustee.
TRUSTEE FEE: As to any Distribution Date, an amount equal to
one-twelfth of the Trustee Fee Rate multiplied by the aggregate Stated Principal
Balance of the Mortgage Loans immediately following the Due Date in the month
preceding the month in which such Distribution Date occurs.
TRUSTEE FEE RATE: With respect to each Mortgage Loan, 0.0035% per
annum.
UNCERTIFICATED LOWER-TIER INTEREST: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02(a) hereof. Any of
the Class A-L1, Class A-L7, Class A-L8, Class A-L11, Class A-L12, Class A-L13,
Class A-LPO, Class A-LUR, Class B-L1, Class B-L2, Class B-L3, Class B-L4, Class
B-L5 and Class B-L6 Interests are Uncertificated Lower-Tier Interests.
UNDERWRITING GUIDELINES: The underwriting guidelines of the Bank of
America, FSB or NationsBanc Mortgage Corporation, as applicable.
UPPER-TIER CERTIFICATE: Any one of the Class A Certificates (other
than the Class A-LR Certificate) and the Class B Certificates.
UPPER-TIER CERTIFICATE ACCOUNT: The separate Eligible Account
established and maintained by the Trustee pursuant to Section 3.08(f).
UPPER-TIER REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be held in the Upper-Tier Certificate
Account.
U.S. PERSON: A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) created or organized in or under the laws of the United States, any
State thereof or the District of Columbia, including an entity treated as a
corporation or partnership for federal income tax purposes, an estate that is
subject to United States federal income tax, regardless of the source of its
income, or a trust, if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
VOTING RIGHTS: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holders of
the Residual Certificates, and (b) the remaining Voting Rights shall be
allocated among Holders of the remaining Classes of Certificates in proportion
to the Certificate Balances of their respective Certificates on such date.
Section 1.02 INTEREST CALCULATIONS. All calculations of interest
will be made on a 360-day year consisting of twelve 30-day months. All dollar
amounts calculated hereunder shall be rounded to the nearest penny with one-half
of one penny being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 CONVEYANCE OF MORTGAGE LOANS.
(a) The Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the
Trustee on behalf of the Trust for the benefit of the Certificateholders,
without recourse, all the right, title and interest of the Depositor in and to
the Mortgage Loans, including all interest and principal received on or with
respect to the Mortgage Loans (other than payments of principal and interest due
and payable on the Mortgage Loans on or before the Cut-Off Date). The foregoing
sale, transfer, assignment and set over does not and is not intended to result
in a creation of an assumption by the Trustee of any obligation of the Depositor
or any other Person in connection with the Mortgage Loans or any agreement or
instrument relating thereto, except as specifically set forth herein.
(b) In connection with such transfer and assignment, the Depositor
has delivered or caused to be delivered to the Trustee, for the benefit of the
Certificateholders, the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of The Bank of New
York, as Trustee, without recourse," with all necessary intervening
endorsements showing a complete chain of endorsement from the originator
to the Trustee (each such endorsement being sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note);
(ii) except as provided below, the original recorded Mortgage
with evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the Depositor as being a true and correct copy
of the Mortgage;
(iii) subject to the proviso at the end of this paragraph, a duly
executed Assignment of Mortgage to "The Bank of New York, as trustee for
the holders of the Bank of America Mortgage Securities, Inc. Mortgage
Pass-Through Certificates, Series 1999-2" (which may be included in a
blanket assignment or assignments), together with, except as provided
below, originals of all interim recorded assignments of such mortgage or a
copy of such interim assignment certified by the Depositor as being a true
and complete copy of the original recorded intervening assignments of
Mortgage (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 the assignment relates);
provided that, if the related Mortgage has not been returned from the
applicable public recording office, such Assignment of Mortgage may
exclude the information to be provided by the recording office;
(iv) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon, if
any;
(v) the original or duplicate original mortgagee title insurance
policy and all riders thereto;
(vi) the original of any guarantee executed in connection with
the Mortgage Note;
(vii) for each Mortgage Loan which is secured by a residential
long-term lease, a copy of the lease with evidence of recording indicated
thereon, or, if the lease is in the process of being recorded, a photocopy
of the lease, certified by an officer of the respective prior owner of
such Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to be a
true and correct copy of the lease transmitted for recordation; and
(viii) the original of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage;
provided, however, that on the Closing Date, with respect to item (iii), the
Depositor has delivered to the Trustee a copy of such Assignment of Mortgage in
blank and has caused the related Servicer to retain the completed Assignment of
Mortgage for recording as described below. In addition, if the Depositor is
unable to deliver or cause the delivery of any original Mortgage Note due to the
loss of such original Mortgage Note, the Depositor may deliver a copy of such
Mortgage Note, together with a lost note affidavit, and shall thereby be deemed
to have satisfied the document delivery requirements of this Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot
deliver (A) the Mortgage, (B) all interim recorded assignments, (C) all
assumption, modification, consolidation or extension agreements, if any, or (D)
the lender's title policy (together with all riders thereto) satisfying the
requirements of clause (ii), (iii), (iv) or (v) above, respectively,
concurrently with the execution and delivery hereof because such document or
documents have not been returned from the applicable public recording office in
the case of clause (ii), (iii) or (iv) above, or because the title policy has
not been delivered to either the related Servicer or the Depositor by the
applicable title insurer in the case of clause (v) above, the Depositor shall
promptly deliver or cause to be delivered to the Trustee or the Custodian on
behalf of the Trustee, in the case of clause (ii), (iii) or (iv) above, such
Mortgage, such interim assignment or such assumption, modification,
consolidation or extension agreement, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, but in no event shall any such delivery of any such documents or
instruments be made later than one year following the Closing Date, unless, in
the case of clause (ii), (iii) or (iv) above, there has been a continuing delay
at the applicable recording office or, in the case of clause (v), there has been
a continuing delay at the applicable insurer and the Depositor has delivered the
Officer's Certificate to such effect to the Trustee. The Depositor shall forward
or cause to be forwarded to the Trustee (1) from time to time additional
original documents evidencing an assumption or modification of a Mortgage Loan
and (2) any other documents required to be delivered by the Depositor or either
Servicer to the Trustee or the Custodian on the Trustee's behalf. In the event
that the original Mortgage is not delivered and in connection with the payment
in full of the related Mortgage Loan the public recording office requires the
presentation of a "lost instruments affidavit and indemnity" or any equivalent
document, because only a copy of the Mortgage can be delivered with the
instrument of satisfaction or reconveyance, the related Servicer shall prepare,
execute and deliver or cause to be prepared, executed and delivered, on behalf
of the Trust, such a document to the public recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30 days thereafter, the Servicers shall (I)
cause each Assignment of Mortgage to be in proper form for recording in the
appropriate public office for real property records within 30 days of the
Closing Date and (II) at the Depositor's expense, cause to be delivered for
recording in the appropriate public office for real property records the
Assignments of the Mortgages to the Trustee, except that, with respect to any
Assignment of a Mortgage as to which a Servicer has not received the information
required to prepare such assignment in recordable form, such Servicer's
obligation to do so and to deliver the same for such recording shall be as soon
as practicable after receipt of such information and in any event within 30 days
after the receipt thereof and, no recording of an Assignment of Mortgage will be
required if the Depositor furnishes to the Trustee an unqualified Opinion of
Counsel reasonably acceptable to the Trustee to the effect that recordation of
such assignment is not necessary under applicable state law to preserve the
Trustee's interest in the related Mortgage Loan against the claim of any
subsequent transferee of such Mortgage Loan or any successor to, or creditor of,
the Depositor or the originator of such Mortgage Loan.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Trustee, or the Custodian on the Trustee's behalf, will cause the related
Servicer to deposit in the related Servicer Custodial Account the portion of
such payment that is required to be deposited in such Servicer Custodial Account
pursuant to Section 3.08.
Section 2.02 ACCEPTANCE BY THE TRUSTEE OF THE MORTGAGE LOANS.
Subject to the provisions of the following paragraph, the Trustee declares that
it, or the Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it constituting the Mortgage
Files, and that it will hold such other assets as are included in the Trust
Estate, in trust for the exclusive use and benefit of all present and future
Certificateholders.
Within 90 days after the execution and delivery of this Agreement,
the Trustee shall review, or cause the Custodian to review, the Mortgage Files
in its possession. If, in the course of such review, the Trustee or the
Custodian finds any document constituting a part of a Mortgage File which does
not meet the requirements of Section 2.01 or is omitted from such Mortgage File,
the Trustee shall promptly so notify the related Servicer and the Depositor, or
shall cause the Custodian to promptly so notify the related Servicer and the
Depositor. In performing any such review, the Trustee or the Custodian may
conclusively rely on the purported genuineness of any such document and any
signature thereon. It is understood that the scope of the Trustee's or the
Custodian's review of the Mortgage Files is limited solely to confirming that
the documents listed in Section 2.01 have been received and further confirming
that any and all documents delivered pursuant to Section 2.01 appear on their
face to have been executed and relate to the Mortgage Loans identified in the
Mortgage Loan Schedule. Neither the Trustee nor the Custodian shall have any
responsibility for determining whether any document is valid and binding,
whether the text of any assignment or endorsement is in proper or recordable
form, whether any document has been recorded in accordance with the requirements
of any applicable jurisdiction, or whether a blanket assignment is permitted in
any applicable jurisdiction. The Depositor hereby covenants and agrees that it
will promptly correct or cure such defect within 90 days from the date it was so
notified of such defect and, if the Depositor does not correct or cure such
defect within such period, the Depositor will either (a) substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth below or (b)
purchase such Mortgage Loan from the Trustee at the Repurchase Price for such
Mortgage Loan; provided, however, that in no event shall such a substitution
occur more than two years from the Closing Date; provided, further, that such
substitution or repurchase shall occur within 90 days of when such defect was
discovered if such defect will cause the Mortgage Loan not to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
With respect to each Substitute Mortgage Loan the Depositor shall
deliver to the Trustee, for the benefit of the Certificateholders, the Mortgage
Note, the Mortgage, the related Assignment of Mortgage, and such other documents
and agreements as are otherwise required by Section 2.01, with the Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. No substitution
is permitted to be made in any calendar month after the Determination Date for
such month. Monthly Payments due with respect to any such Substitute Mortgage
Loan in the month of substitution shall not be part of the Trust Estate and will
be retained by the Depositor. For the month of substitution, distributions to
Certificateholders will include the Monthly Payment due for such month on any
Defective Mortgage Loan for which the Depositor has substituted a Substitute
Mortgage Loan.
The applicable Servicer shall amend the Mortgage Loan Schedule for
the benefit of the Certificateholders to reflect the removal of each Mortgage
Loan serviced by such Servicer that has become a Defective Mortgage Loan and the
substitution of the Substitute Mortgage Loan or Loans and such Servicer shall
deliver the amended Mortgage Loan Schedule to the Trustee and the Custodian.
Upon such substitution, each Substitute Mortgage Loan shall be subject to the
terms of this Agreement in all respects, and the Depositor shall be deemed to
have made to the Trustee with respect to such Substitute Mortgage Loan, as of
the date of substitution, the representations and warranties made pursuant to
Section 2.05. Upon any such substitution and the deposit to the related Servicer
Custodial Account of any required Substitution Adjustment Amount (as described
in the next paragraph) and receipt of a Request for Release, the Trustee shall
release, or shall direct the Custodian to release, the Mortgage File relating to
such Defective Mortgage Loan to the Depositor and shall execute and deliver at
the Depositor's direction such instruments of transfer or assignment prepared by
the Depositor, in each case without recourse, as shall be necessary to vest
title in the Depositor, or its designee, to the Trustee's interest in any
Defective Mortgage Loan substituted for pursuant to this Section 2.02.
For any month in which the Depositor substitutes one or more
Substitute Mortgage Loans for one or more Defective Mortgage Loans, the amount
(if any) by which the aggregate principal balance of all such Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all such Defective Mortgage Loans (after application of the
principal portion of the Monthly Payments due in the month of substitution) (the
"SUBSTITUTION ADJUSTMENT AMOUNT") plus an amount equal to the aggregate of any
unreimbursed Advances with respect to such Defective Mortgage Loans shall be
deposited into the Certificate Account by the Depositor on or before the
Remittance Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan is required to be purchased or
replaced hereunder.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions set forth herein. Each Servicer shall promptly deliver
to the Trustee, upon the execution or, in the case of documents requiring
recording, receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into such Servicer's possession from time
to time.
It is understood and agreed that the obligation of the Depositor to
substitute for or to purchase any Mortgage Loan which does not meet the
requirements of Section 2.01 shall constitute the sole remedy respecting such
defect available to the Trustee and any Certificateholder against the Depositor.
The Trustee or the Custodian, on behalf of the Trustee, shall be
under no duty or obligation (i) to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face or (ii) to determine
whether any Mortgage File should include any of the documents specified in
Section 2.01(b)(iv), (vi), (vii) and (viii).
Section 2.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE NMC
SERVICER.
The NMC Servicer hereby makes the following representations and
warranties to the Depositor and the Trustee, as of the Closing Date:
(i) The NMC Servicer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Texas and
has all licenses necessary to carry on its business as now being conducted
and is licensed, qualified and in good standing in each of the states
where a Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type
conducted by the NMC Servicer. The NMC Servicer has corporate power and
authority to execute and deliver this Agreement and to perform in
accordance herewith; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant
to this Agreement) by the NMC Servicer and the consummation of the
transactions contemplated hereby have been duly and validly authorized.
This Agreement, assuming due authorization, execution and delivery by the
other parties hereto, evidences the valid, binding and enforceable
obligation of the NMC Servicer, subject to applicable law except as
enforceability may be limited by (A) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting
the enforcement of the rights of creditors and (B) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law.
All requisite corporate action has been taken by the NMC Servicer to make
this Agreement valid and binding upon the NMC Servicer in accordance with
its terms.
(ii) No consent, approval, authorization or order is required for
the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority
having jurisdiction over the NMC Servicer is required or, if required,
such consent, approval, authorization or order has been or will, prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the NMC Servicer and
will not result in the breach of any term or provision of the charter or
by-laws of the NMC Servicer or result in the breach of any term or
provision of, or conflict with or constitute a default under or result in
the acceleration of any obligation under, any agreement, indenture or loan
or credit agreement or other instrument to which the NMC Servicer or its
property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the NMC Servicer or its
property is subject.
(iv) There is no action, suit, proceeding or investigation
pending or, to the best knowledge of the NMC Servicer, threatened against
the NMC Servicer which, either individually or in the aggregate, would
result in any material adverse change in the business, operations,
financial condition, properties or assets of the NMC Servicer, or in any
material impairment of the right or ability of the NMC Servicer to carry
on its business substantially as now conducted or which would draw into
question the validity of this Agreement or the Mortgage Loans or of any
action taken or to be taken in connection with the obligations of the NMC
Servicer contemplated herein, or which would materially impair the ability
of the NMC Servicer to perform under the terms of this Agreement.
(v) The NMC Servicer is working to modify its computer and other
systems used in servicing the Mortgage Loans to operate in a manner such
that, on and after January 1, 2000, the NMC Servicer can service the
Mortgage Loans in accordance with the terms of this Agreement.
The representations and warranties made or assigned pursuant to this
Section 2.03 shall survive delivery of the respective Mortgage Files to the
Trustee for the benefit of the Certificateholders.
Section 2.04 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BA
SERVICER.
The BA Servicer hereby makes the following representations and
warranties to the Depositor and the Trustee, as of the Closing Date:
(i) The BA Servicer is a federal savings bank duly organized,
validly existing, and in good standing under the federal laws of the
United States of America and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in each of the states where a Mortgaged Property is located if
the laws of such state require licensing or qualification in order to
conduct business of the type conducted by the BA Servicer. The BA Servicer
has power and authority to execute and deliver this Agreement and to
perform in accordance herewith; the execution, delivery and performance of
this Agreement (including all instruments of transfer to be delivered
pursuant to this Agreement) by the BA Servicer and the consummation of the
transactions contemplated hereby have been duly and validly authorized.
This Agreement, assuming due authorization, execution and delivery by the
other parties hereto, evidences the valid, binding and enforceable
obligation of the BA Servicer, subject to applicable law except as
enforceability may be limited by (A) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting
the enforcement of the rights of creditors and (B) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law.
All requisite corporate action has been taken by the BA Servicer to make
this Agreement valid and binding upon the BA Servicer in accordance with
its terms.
(ii) No consent, approval, authorization or order is required
for the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority
having jurisdiction over the BA Servicer is required or, if required, such
consent, approval, authorization or order has been or will, prior to the
Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the BA Servicer and
will not result in the breach of any term or provision of the charter or
by-laws of the BA Servicer or result in the breach of any term or
provision of, or conflict with or constitute a default under or result in
the acceleration of any obligation under, any agreement, indenture or loan
or credit agreement or other instrument to which the BA Servicer or its
property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the BA Servicer or its
property is subject.
(iv) There is no action, suit, proceeding or investigation
pending or, to the best knowledge of the BA Servicer, threatened against
the BA Servicer which, either individually or in the aggregate, would
result in any material adverse change in the business, operations,
financial condition, properties or assets of the BA Servicer, or in any
material impairment of the right or ability of the BA Servicer to carry on
its business substantially as now conducted or which would draw into
question the validity of this Agreement or the Mortgage Loans or of any
action taken or to be taken in connection with the obligations of the BA
Servicer contemplated herein, or which would materially impair the ability
of the BA Servicer to perform under the terms of this Agreement.
(v) The BA Servicer is working to modify its computer and other
systems used in servicing the Mortgage Loans to operate in a manner such
that, on and after January 1, 2000, the BA Servicer can service the
Mortgage Loans in accordance with the terms of this Agreement.
The representations and warranties made pursuant to this Section
2.04 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.05 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AS TO
THE MORTGAGE LOANS.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as of
the date hereof or such other date set forth herein that as of the Closing Date:
(i) The information set forth in the Mortgage Loan Schedule is
true and correct in all material respects.
(ii) There are no delinquent taxes, ground rents, governmental
assessments, insurance premiums, leasehold payments, including assessments
payable in future installments or other outstanding charges affecting the
lien priority of the related Mortgaged Property.
(iii) The terms of the Mortgage Note and the Mortgage have not
been impaired, waived, altered or modified in any respect, except by
written instruments, recorded in the applicable public recording office if
necessary to maintain the lien priority of the Mortgage, and which have
been delivered to the Trustee; the substance of any such waiver,
alteration or modification has been approved by the insurer under the
Primary Mortgage Insurance Policy, if any, the title insurer, to the
extent required by the related policy, and is reflected on the Mortgage
Loan Schedule. No instrument of waiver, alteration or modification has
been executed, and no Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement approved by the insurer
under the Primary Mortgage Insurance Policy, if any, the title insurer, to
the extent required by the policy, and which assumption agreement has been
delivered to the Trustee.
(iv) 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 either the Mortgage Note or 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.
(v) All buildings upon the Mortgaged Property are insured by an
insurer generally acceptable to prudent mortgage lending institutions
against loss by fire, hazards of extended coverage and such other hazards
as are customary in the area the Mortgaged Property is located, pursuant
to insurance policies conforming to the requirements of Customary
Servicing Procedures and this Agreement. All such insurance policies
contain a standard mortgagee clause naming the originator of the Mortgage
Loan, its successors and assigns as mortgagee and all premiums thereon
have been paid. If the Mortgaged Property is in an area identified on a
flood hazard map or flood insurance rate map issued by the Federal
Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the requirements of
FNMA or FHLMC. The Mortgage obligates the Mortgagor thereunder to maintain
all such insurance at the 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 seek
reimbursement therefor from the Mortgagor.
(vi) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate
settlement procedures, consumer credit protections, equal credit
opportunity or disclosure laws applicable to the origination and servicing
of Mortgage Loan have been complied with.
(vii) The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part (other than as to Principal
Prepayments in full which may have been received prior to the Closing
Date), 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 satisfaction, cancellation, subordination,
rescission or release.
(viii) The Mortgage is a valid, existing and enforceable first
lien on the Mortgaged Property, including all improvements on the
Mortgaged Property subject only to (A) the lien of current real property
taxes and assessments not yet due and payable, (B) 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, and (C) 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 or the use, enjoyment,
value or marketability of the related Mortgaged Property. Any security
agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a
valid, existing and enforceable first lien and first priority security
interest on the property described therein and the Depositor has the full
right to sell and assign the same to the Trustee.
(ix) 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 enforceability may be
limited by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of the rights of creditors and (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law.
(x) All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan 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.
(xi) The proceeds of the Mortgage Loan have been fully disbursed
to or for the account of the Mortgagor and there is no obligation for the
Mortgagee to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site improvements 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 have been paid, and the Mortgagor
is not entitled to any refund of any amounts paid or due to the Mortgagee
pursuant to the Mortgage Note or Mortgage.
(xii) To the best of the Depositor's knowledge, all parties
which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held and disposed of such interest, were) in compliance with any and all
applicable "doing business" and licensing requirements of the laws of the
state wherein the Mortgaged Property is located.
(xiii) The Mortgage Loan is covered by an ALTA lender's title
insurance policy, acceptable to FNMA or FHLMC, issued by a title insurer
acceptable to FNMA or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to
the exceptions contained in (viii)(A) and (B) above) the Seller, its
successors and assigns as to the first priority lien of the Mortgage in
the original principal amount of the Mortgage Loan. The Depositor is the
sole insured of such lender's title insurance policy, and such lender's
title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated by
this Agreement. No claims have been made under such lender's title
insurance policy, and the Depositor has not done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy.
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and 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.
(xv) As of the date of origination of the Mortgage Loan, there
had been no mechanics' or similar liens or claims filed for work, labor or
material (and no rights are outstanding that under law could give rise to
such lien) affecting the relating Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage.
(xvi) All improvements which were considered 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.
(xvii) The Mortgage Loan was originated by a commercial bank or
similar banking institution which is supervised and examined by a federal
or state authority, or by a mortgagee approved by the Secretary of HUD.
(xviii) Principal payments on the Mortgage Loan commenced no
more than sixty days after the proceeds of the Mortgaged Loan were
disbursed. The Mortgage Loans are 30-year fixed rate mortgage loans having
an original term to maturity of not more than 30 years, with interest
payable in arrears on the first day of the month. Each Mortgage Note
requires a monthly payment which is sufficient to fully amortize the
original principal balance over the original term thereof and to pay
interest at the related Mortgage Interest Rate. The Mortgage Note does not
permit negative amortization.
(xix) There is no proceeding pending or, to the Depositor's
knowledge, threatened for the total or partial condemnation of the
Mortgaged Property and such property is in good repair and is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or
other casualty, so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the
premises were intended.
(xx) The Mortgage and related Mortgage Note contain customary
and enforceable provisions such as to render the rights and remedies of
the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including (A)
in the case of a Mortgage designated as a deed of trust, by trustee's
sale, and (B) otherwise by judicial foreclosure. To the best of the
Depositor's knowledge, following the date of origination of the Mortgage
Loan, the Mortgaged Property has not been subject to any bankruptcy
proceeding or foreclosure proceeding and the Mortgagor has not filed for
protection under applicable bankruptcy laws. There is no homestead or
other exemption or right available to the Mortgagor or any other person
which would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage.
(xxi) The Mortgage Note and Mortgage are on forms acceptable to
FNMA or FHLMC.
(xxii) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (viii) above.
(xxiii) The Mortgage File contains an appraisal of the related
Mortgaged Property, in a form acceptable to FNMA or FHLMC and such
appraisal complies with the requirements of FIRREA, and was made and
signed, prior to the approval of the Mortgage Loan application, by a
Qualified Appraiser.
(xxiv) 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 Trustee to the
trustee under the deed of trust, except in connection with a trustee's
sale after default by the Mortgagor.
(xxv) No Mortgage Loan is a graduated payment mortgage loan, no
Mortgage Loan has a shared appreciation or other contingent interest
feature, and, except as to 0.07% of the Mortgage Loans (by Cut-Off Date
Principal Balance), no Mortgage Loan contains any "buydown" provision.
(xxvi) The Mortgagor has received all disclosure materials
required by applicable law with respect to the making of mortgage loans of
the same type as the Mortgage Loan and rescission materials required by
applicable law if the Mortgage Loan is a Refinance Mortgage Loan.
(xxvii) Each Mortgage Loan with a Loan-to-Value Ratio at
origination in excess of 80% will be subject to a Primary Mortgage
Insurance Policy, issued by an insurer acceptable to FNMA or FHLMC, which
insures that portion of the Mortgage Loan in excess of the portion of the
Appraised Value of the Mortgaged Property required by FNMA. All provisions
of such Primary Mortgage Insurance Policy have been and are being complied
with, such policy is in full force and effect, and all premiums due
thereunder have been paid. Any Mortgage subject to any such Primary
Mortgage Insurance Policy obligates the Mortgagor thereunder to maintain
such insurance and to pay all premiums and charges in connection therewith
at least until Loan-to-Value Ratio of such Mortgage Loan is reduced to
less than 80%. The Mortgage Interest Rate for the Mortgage Loan does not
include any such insurance premium.
(xxviii) To the best of the Depositor's knowledge as of the date
of origination of the Mortgage Loan, (A) the Mortgaged Property is
lawfully occupied under applicable law, (B) 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 and
(C) no improvement located on or part of the Mortgaged Property is in
violation of any zoning law or regulation.
(xxix) 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.
(xxx) All payments required to be made prior to the Cut-Off Date
for such Mortgage Loan under the terms of the Mortgage Note have been made
and no Mortgage Loan has been more than 30 days delinquent more than once
in the twelve month period immediately prior to the Cut-Off Date.
(xxxi) With respect to each Mortgage Loan, the Depositor or
Servicer is in possession of a complete Mortgage File except for the
documents which have been delivered to the Trustee or which have been
submitted for recording and not yet returned.
(xxxii) Immediately prior to the transfer and assignment
contemplated herein, the Depositor was the sole owner and holder of the
Mortgage Loans. The Mortgage Loans were not assigned or pledged by the
Depositor and the Depositor had good and marketable title thereto, and the
Depositor had full right to transfer and sell the Mortgage Loans to the
Trustee free and clear of any encumbrance, participation interest, lien,
equity, pledge, claim or security interest and had full right and
authority subject to no interest or participation in, or agreement with
any other party to sell or otherwise transfer the Mortgage Loans.
(xxxiii) Any future advances made 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 lien priority 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.
(xxxiv) The Mortgage Loan was underwritten in accordance with
the applicable Underwriting Guidelines in effect at the time of
origination with exceptions thereto exercised in a reasonable manner.
(xxxv) If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without
the lessor's consent and the acquisition by the holder of the Mortgage of
the rights of the lessee upon foreclosure or assignment in lieu of
foreclosure or provide the holder of the Mortgage with substantially
similar protections; (3) the terms of such lease do not (a) allow the
termination thereof upon the lessee's default without the holder of the
Mortgage being entitled to receive written notice of, and opportunity to
cure, such default, (b) allow the termination of the lease in the event of
damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving
proceeds of insurance) under the hazard insurance policy or policies
relating to the Mortgaged Property or (d) permit any increase in the rent
other than pre-established increases set forth in the lease; (4) the
original term of such lease in not less than 15 years; (5) the term of
such lease does not terminate earlier than five years after the maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in a
jurisdiction in which the use of leasehold estates in transferring
ownership in residential properties is a widely accepted practice.
(xxxvi) The Mortgaged Property is located in the state
identified in the Mortgage Loan Schedule and consists of a parcel of real
property with a detached single family residence erected thereon, or a
two- to four-family dwelling, or an individual condominium unit, or an
individual unit in a planned unit development; provided, however, that any
condominium project or planned unit development generally conforms with
the applicable Underwriting Guidelines regarding such dwellings, and no
residence or dwelling is a mobile home or a manufactured dwelling.
(xxxvii) The Depositor used no adverse selection procedures in
selecting the Mortgage Loan for inclusion in the Trust Estate.
(xxxviii) Each Mortgage Loan is a "qualified mortgage" within
Section 860G(a)(3) of the Code.
(xxxix) With respect to each Mortgage where a lost note
affidavit has been delivered to the Trustee in place of the related
Mortgage Note, the related Mortgage Note is no longer in existence.
Notwithstanding the foregoing, no representations or warranties are
made by the Depositor as to the environmental condition of any Mortgaged
Property; the absence, presence or effect of hazardous wastes or hazardous
substances on any Mortgaged Property; any casualty resulting from the presence
or effect of hazardous wastes or hazardous substances on, near or emanating from
any Mortgaged Property; the impact on Certificateholders of any environmental
condition or presence of any hazardous substance on or near any Mortgaged
Property; or the compliance of any Mortgaged Property with any environmental
laws, nor is any agent, Person or entity otherwise affiliated with the Depositor
authorized or able to make any such representation, warranty or assumption of
liability relative to any Mortgaged Property. In addition, no representations or
warranties are made by the Depositor with respect to the absence or effect of
fraud in the origination of any Mortgage Loan.
It is understood and agreed that the representations and warranties
set forth in this Section 2.05 shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and shall inure to the benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement or assignment.
Upon discovery by either the Depositor, either Servicer, the Trustee
or the Custodian that any of the representations and warranties set forth in
this Section 2.05 is not accurate (referred to herein as a "BREACH") and that
such breach materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement); provided, that any such breach
that causes the Mortgage Loan not to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code shall be deemed to materially and
adversely affect the interests of the Certificateholders. Within 90 days of its
discovery or its receipt of notice of any such breach, the Depositor shall cure
such breach in all material respects or shall either (i) repurchase the Mortgage
Loan or any property acquired in respect thereof from the Trustee at a price
equal to the Repurchase Price or (ii) if within two years of the Closing Date,
substitute for such Mortgage Loan in the manner described in Section 2.02;
PROVIDED that if the breach would cause the Mortgage Loan to be other than a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such
repurchase or substitution must occur within 90 days from the date the breach
was discovered. The Repurchase Price of any repurchase described in this
paragraph and the Substitution Adjustment Amount, if any, shall be deposited in
the Certificate Account. It is understood and agreed that the obligation of the
Depositor to repurchase or substitute for any Mortgage Loan or Mortgaged
Property as to which such a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to
Certificateholders, or to the Trustee on behalf of Certificateholders, and such
obligation shall survive until termination of the Trust hereunder.
Section 2.06 DESIGNATION OF INTERESTS IN THE REMICS. The Depositor
hereby designates the Classes of Class A Certificates (other than the Class
A-14, Class A-R and Class A-LR Certificates), the Classes of Class B
Certificates and the Components as classes of "regular interests" and the Class
A-R Certificate as the single class of "residual interest" in the Upper-Tier
REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively.
The Depositor hereby further designates the Class A-L1 Interest, Class A-L7
Interest, Class A-L8 Interest, Class A-L11 Interest, Class A-L12 Interest, Class
A-L13 Interest, Class A-LPO Interest, Class A-LUR Interest, Class B-L1 Interest,
Class B-L2 Interest, Class B-L3 Interest, Class B-L4 Interest, Class B-L5
Interest and Class B-L6 Interest as classes of "regular interests" and the Class
A-LR Certificate as the single class of "residual interest" in the Lower-Tier
REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively.
Section 2.07 DESIGNATION OF START-UP DAY. The Closing Date is hereby
designated as the "start-up day" of each of the Upper-Tier REMIC and Lower-Tier
REMIC within the meaning of Section 860G(a)(9) of the Code.
Section 2.08 REMIC CERTIFICATE MATURITY DATE. Solely for purposes of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the "latest
possible maturity date" of the regular interests in the Upper-Tier REMIC and
Lower-Tier REMIC is April 25, 2029.
Section 2.09 EXECUTION AND DELIVERY OF CERTIFICATES. The Trustee (i)
acknowledges the issuance of and hereby declares that it holds the
Uncertificated Lower-Tier Interests on behalf of the Upper-Tier REMIC and the
Certificateholders and (ii) has executed and delivered to or upon the order of
the Depositor, in exchange for the Mortgage Loans and Uncertificated Lower-Tier
Interests together with all other assets included in the definition of "Trust
Estate," receipt of which is hereby acknowledged, Certificates in authorized
denominations which, together with the Uncertificated Lower-Tier Interests,
evidence ownership of the entire Trust Estate.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 SERVICERS TO SERVICE MORTGAGE LOANS. For and on behalf
of the Certificateholders, the NMC Servicer shall service and administer the NMC
Mortgage Loans and the BA Servicer shall service and administer the BA Mortgage
Loans, each in accordance with the terms of this Agreement, Customary Servicing
Procedures, applicable law and the terms of the Mortgage Notes and Mortgages. In
connection with such servicing and administration, each Servicer shall have full
power and authority, acting alone and/or through Subservicers as provided in
Section 3.02, 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, (a) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents, (b)
to consent, with respect to the Mortgage Loans it services, to transfers of any
Mortgaged Property and assumptions of the Mortgage Notes and related Mortgages
(but only in the manner provided in this Agreement), (c) to collect any
Insurance Proceeds and other Liquidation Proceeds relating to the Mortgage Loans
it services, and (d) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan it services. Each
Servicer shall represent and protect the interests of the Trust in the same
manner as it protects its own interests 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, except as provided pursuant to Section 3.21. Without limiting the
generality of the foregoing, each Servicer, in its own name or in the name of
any Subservicer or the Depositor and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when such Servicer or any
Subservicer, as the case may be, 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 it services, and with
respect to the related Mortgaged Properties held for the benefit of the
Certificateholders. Each Servicer shall prepare and deliver to the Depositor
and/or the Trustee such documents requiring execution and delivery by either or
both of them as are necessary or appropriate to enable such Servicer to service
and administer the Mortgage Loans it services to the extent that such Servicer
is not permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents, the Depositor and/or the Trustee, upon
the direction of the related Servicer, shall promptly execute such documents and
deliver them to the related Servicer.
In accordance with the standards of the preceding paragraph, each
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 relating to the Mortgage Loans it services, which Servicing Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
The costs incurred by the Servicers, 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 Balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
The relationship of each Servicer (and of any successor to either
Servicer as servicer under this Agreement) to the Trustee under this Agreement
is intended by the parties to be that of an independent contractor and not that
of a joint venturer, partner or agent.
Section 3.02 SUBSERVICING; ENFORCEMENT OF THE OBLIGATIONS OF
SERVICERS.
(a) Either Servicer may arrange for the subservicing of any
Mortgage Loan it services by a Subservicer pursuant to a Subservicing Agreement;
provided, however, that such subservicing arrangement and the terms of the
related Subservicing Agreement must provide for the servicing of such Mortgage
Loan 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
a Servicer and a Subservicer or reference to actions taken through a Subservicer
or otherwise, such Servicer shall remain obligated and liable to the Depositor,
the Trustee and the Certificateholders for the servicing and administration of
the Mortgage Loans it services 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
such Servicer alone were servicing and administering those Mortgage Loans. All
actions of each Subservicer performed pursuant to the related Subservicing
Agreement shall be performed as agent of the related Servicer with the same
force and effect as if performed directly by such Servicer.
(b) For purposes of this Agreement, each Servicer shall be deemed
to have received any collections, recoveries or payments with respect to the
Mortgage Loans it services that are received by a Subservicer regardless of
whether such payments are remitted by the Subservicer to such Servicer.
(c) As part of its servicing activities hereunder, each Servicer,
for the benefit of the Trustee and the Certificateholders, shall use its best
reasonable efforts to enforce the obligations of each Subservicer engaged by
such Servicer under the related Subservicing Agreement, to the extent that the
non-performance of any such obligation would have a material and adverse effect
on a Mortgage Loan. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing Agreements and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the related Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
related Servicer shall pay the costs of such enforcement at its own expense, and
shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loan or (ii) from a specific recovery of
costs, expenses or attorneys fees against the party against whom such
enforcement is directed.
(d) Any Subservicing Agreement entered into by a Servicer shall
provide that it may be assumed or terminated by the Trustee, if the Trustee has
assumed the duties of such Servicer, or any successor Servicer, at the Trustee's
or successor Servicer's option, as applicable, without cost or obligation to the
assuming or terminating party or the Trust Estate, upon the assumption by such
party of the obligations of such Servicer pursuant to Section 8.05.
Any Subservicing Agreement, and any other transactions or services
relating to the Mortgage Loans involving a Subservicer, shall be deemed to be
between the related Servicer and such Subservicer alone, and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no claims
or rights of action against, rights, obligations, duties or liabilities to or
with respect to the Subservicer or its officers, directors or employees, except
as set forth in Section 3.01.
Section 3.03 FIDELITY BOND; ERRORS AND OMISSIONS INSURANCE.
Each Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage on all
officers, employees or other persons acting in any capacity requiring such
persons to handle funds, money, documents or papers relating to the Mortgage
Loans it services. These policies must insure such Servicer against losses
resulting from dishonest or fraudulent acts committed by such Servicer's
personnel, any employees of outside firms that provide data processing services
for such Servicer, and temporary contract employees or student interns. Such
fidelity bond shall also protect and insure such Servicer against losses in
connection with the release or satisfaction of a Mortgage Loan without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 3.03 requiring such fidelity bond and errors and omissions
insurance shall diminish or relieve such Servicer from its duties and
obligations as set forth in this Agreement. The minimum coverage under any such
bond and insurance policy shall be at least equal to the corresponding amounts
required by FNMA in the FNMA Servicing Guide or by FHLMC in the FHLMC Sellers' &
Servicers' Guide, as amended or restated from time to time, or in an amount as
may be permitted to such Servicer by express waiver of FNMA or FHLMC.
Section 3.04 ACCESS TO CERTAIN DOCUMENTATION.
Each Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinate
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation required by applicable
regulations of the OTS and the FDIC with respect to the Mortgage Loans serviced
by such Servicer. Such access shall be afforded without charge, but only upon
reasonable and prior written request and during normal business hours at the
offices designated by such Servicer. Nothing in this Section 3.04 shall limit
the obligation of such Servicer to observe any applicable law and the failure of
such Servicer to provide access as provided in this Section 3.04 as a result of
such obligation shall not constitute a breach of this Section 3.04.
Section 3.05 MAINTENANCE OF PRIMARY MORTGAGE INSURANCE
POLICY; CLAIMS.
With respect to each Mortgage Loan with a Loan-to-Value Ratio in
excess of 80% or such other Loan-to-Value Ratio as may be required by law, the
Servicer responsible for servicing such Mortgage Loan shall, without any cost to
the Trust Estate, maintain or cause the Mortgagor to maintain in full force and
effect a Primary Insurance Policy insuring that portion of the Mortgage Loan in
excess of a percentage in conformity with FNMA requirements. The related
Servicer shall pay or shall cause the Mortgagor to pay the premium thereon on a
timely basis, at least until the Loan-to-Value Ratio of such Mortgage Loan is
reduced to 80% or such other Loan-to-Value Ratio as may be required by law. If
such Primary Insurance Policy is terminated, the related Servicer shall obtain
from another insurer a comparable replacement policy, with a total coverage
equal to the remaining coverage of such terminated Primary Insurance Policy. If
the insurer shall cease to be an insurer acceptable to FNMA, the related
Servicer shall notify the Trustee in writing, it being understood that such
Servicer shall not have any responsibility or liability for any failure to
recover under the Primary Insurance Policy for such reason. If such Servicer
determines that recoveries under the Primary Insurance Policy are jeopardized by
the financial condition of the insurer, such Servicer shall obtain from another
insurer which meets the requirements of this Section 3.05 a replacement
insurance policy. A Servicer shall not take any action that would result in
noncoverage under any applicable Primary Insurance Policy of any loss that, but
for the actions of such Servicer, would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to be
entered into pursuant to Section 3.13, the related Servicer shall promptly
notify the insurer under the related Primary Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
Primary Insurance Policy and shall take all actions which may be required by
such insurer as a condition to the continuation of coverage under such Primary
Insurance Policy. If such Primary Insurance Policy is terminated as a result of
such assumption or substitution of liability, the related Servicer shall obtain
a replacement Primary Insurance Policy as provided above.
In connection with its activities as servicer, each Servicer agrees
to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Insurance Policy in
a timely fashion in accordance with the terms of such Primary Insurance Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any Primary Insurance Policy respecting a defaulted Mortgage Loan
serviced by such Servicer. Pursuant to Section 3.09(a), any amounts collected by
a Servicer under any Primary Insurance Policy shall be deposited in the related
Escrow Account, subject to withdrawal pursuant to Section 3.09(b).
Section 3.06 RIGHTS OF THE DEPOSITOR AND THE TRUSTEE IN RESPECT OF
THE SERVICERS.
The Depositor may, but is not obligated to, enforce the obligations
of each Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of either Servicer hereunder and
in connection with any such defaulted obligation to exercise the related rights
of such Servicer hereunder; provided that a Servicer shall not be relieved of
any of its obligations hereunder by virtue of such performance by the Depositor
or its designee. Neither the Trustee nor the Depositor shall have any
responsibility or liability for any action or failure to act by a Servicer nor
shall the Trustee or the Depositor be obligated to supervise the performance of
a Servicer hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
applicable Servicer alone, and the Trustee and Certificateholders shall not be
deemed parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.07.
Each Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether each Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.07 TRUSTEE TO ACT AS SERVICER.
If either Servicer shall for any reason no longer be a Servicer
hereunder (including by reason of an Event of Default), the Trustee shall
thereupon assume, if it so elects, or shall appoint a successor Servicer to
assume, all of the rights and obligations of such Servicer hereunder arising
thereafter (except that the Trustee shall not be (a) liable for losses of such
Servicer pursuant to Section 3.12 or any acts or omissions of the predecessor
Servicer hereunder, (b) obligated to make Advances if it is prohibited from
doing so by applicable law or (c) deemed to have made any representations and
warranties of such Servicer hereunder). Any such assumption shall be subject to
Section 7.02. If either Servicer shall for any reason no longer be a Servicer
(including by reason of any Event of Default), the Trustee or the successor
Servicer may elect to succeed to any rights and obligations of such Servicer
under each Subservicing Agreement or may terminate each Subservicing Agreement.
If it has elected to assume the Subservicing Agreement, the Trustee or the
successor Servicer shall be deemed to have assumed all of the related Servicer's
interest therein and to have replaced such Servicer as a party to any
Subservicing Agreement entered into by such Servicer as contemplated by Section
3.02 to the same extent as if the Subservicing Agreement had been assigned to
the assuming party except that such Servicer shall not be relieved of any
liability or obligations under any such Subservicing Agreement.
Each Servicer that is no longer a Servicer hereunder shall, upon
request of the Trustee, but at the expense of such Servicer, deliver to the
assuming party all documents and records relating to each Subservicing Agreement
or substitute servicing agreement and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected or held by it and otherwise
use its best efforts to effect the orderly and efficient transfer of such
substitute Subservicing Agreement to the assuming party.
Section 3.08 COLLECTION OF MORTGAGE LOAN PAYMENTS; SERVICER
CUSTODIAL ACCOUNTS; CERTIFICATE ACCOUNT AND
UPPER-TIER CERTIFICATE ACCOUNT.
(a) Continuously from the date hereof until the principal and
interest on all Mortgage Loans are paid in full, each Servicer will proceed
diligently, in accordance with this Agreement, to collect all payments due under
each of the Mortgage Loans it services when the same shall become due and
payable. Further, each Servicer will in accordance with all applicable law and
Customary Servicing Procedures ascertain and estimate taxes, assessments, fire
and hazard insurance premiums, mortgage insurance premiums and all other charges
with respect to the Mortgage Loans it services that, as provided in any
Mortgage, will become due and payable to the end that the installments payable
by the Mortgagors will be sufficient to pay such charges as and when they become
due and payable. Consistent with the foregoing, either 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 it services and
(ii) extend the due dates for payments due on a Mortgage Note for a period not
greater than 120 days; provided, however, that a Servicer cannot extend the
maturity of any such Mortgage Loan past the date on which the final payment is
due on the latest maturing Mortgage Loan as of the Cut-Off Date. In the event of
any such arrangement, the Servicer permitting such arrangement shall make
Periodic Advances on the related Mortgage Loan in accordance with the provisions
of Section 3.20 during the scheduled period in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements. A 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 NMC Servicer shall establish and maintain the NMC Servicer
Custodial Account. The BA Servicer shall establish and maintain the BA Servicer
Custodial Account. The NMC Servicer shall deposit or cause to be deposited into
the NMC Servicer Custodial Account and the BA Servicer shall deposit or cause to
be deposited into the BA Servicer Custodial Account, both 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 such Servicer in respect of Mortgage Loans it services subsequent to
the Cut-Off Date (other than in respect of principal and interest due on the
Mortgage Loans on or before the Cut-Off Date) and the following amounts required
to be deposited hereunder with respect to the Mortgage Loans it services:
(i) all payments on account of principal of such Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on such Mortgage Loans,
net of the Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than Insurance Proceeds to be (1) applied to the restoration or repair of
the Mortgaged Property, (2) released to the Mortgagor in accordance with
Customary Servicing Procedures or (3) required to be deposited to an
Escrow Account pursuant to Section 3.09(a) and (B) any Insurance Proceeds
released from an Escrow Account pursuant to Section 3.09(b)(iv);
(iv) any amount required to be deposited by such Servicer
pursuant to Section 3.08(d) in connection with any losses on Permitted
Investments with respect to such Servicer Custodial Account;
(v) any amounts required to be deposited by such Servicer
pursuant to Section 3.14;
(vi) all Repurchase Prices and all Substitution Adjustment
Amounts received by such Servicer;
(vii) Periodic Advances made by such Servicer pursuant to
Section 3.20 and any payments of Compensating Interest; and
(viii) any other amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer Custodial
Accounts by the Servicers 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 deposited by the Servicers. If a Servicer shall deposit in the
related Servicer Custodial Account any amount not required to be deposited, it
may at any time withdraw or direct the institution maintaining such Servicer
Custodial Account to withdraw such amount from such Servicer Custodial Account,
any provision herein to the contrary notwithstanding. Each Servicer Custodial
Account may contain funds that belong to one or more trust funds created for
mortgage pass-through certificates of other series and may contain other funds
respecting payments on mortgage loans belonging to the applicable Servicer or
serviced by such Servicer on behalf of others. Notwithstanding such commingling
of funds, each Servicer shall keep records that accurately reflect the funds on
deposit in the applicable Servicer Custodial Account that have been identified
by it as being attributable to the Mortgage Loans it services. Each Servicer
shall maintain adequate records with respect to all withdrawals made pursuant to
this Section 3.08. All funds required to be deposited in a Servicer Custodial
Account shall be held in trust for the Certificateholders until withdrawn in
accordance with Section 3.11.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Certificate Account. The Trustee shall, promptly upon
receipt, deposit in the Certificate Account and retain therein the following:
(i) the aggregate amount remitted by each Servicer to the
Trustee pursuant to Section 3.11(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section 3.08(d)
in connection with any losses on Permitted Investments with respect to the
Certificate Account; and
(iii) any other amounts deposited hereunder which are required
to be deposited in the Certificate Account.
If a Servicer shall remit any amount not required to be remitted, it
may at any time direct the Trustee to withdraw such amount from the Certificate
Account, any provision herein to the contrary notwithstanding. Such direction
may be accomplished by delivering an Officer's Certificate to the Trustee which
describes the amounts deposited in error in the Certificate Account. All funds
required to be deposited in the Certificate 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 3.11. In no event shall the
Trustee incur liability for withdrawals from the Certificate Account at the
direction of a Servicer.
(d) Each institution at which either Servicer Custodial Account or
the Certificate Account is maintained shall invest the funds therein as directed
in writing by the NMC Servicer (with respect to the NMC Servicer Custodial
Account), the BA Servicer (with respect to the BA Servicer Custodial Account) or
the Trustee (with respect to the Certificate Account) in Permitted Investments,
which shall mature not later than (i) in the case of either Servicer Custodial
Account, the Business Day next preceding the related Remittance Date (except
that if such Permitted Investment is an obligation of the institution that
maintains such account, then such Permitted Investment shall mature not later
than such Remittance Date) and (ii) in the case of the Certificate Account, the
Business Day next preceding the Distribution Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account, then
such Permitted Investment shall mature not later than such Distribution Date)
and, in each case, shall not be sold or disposed of prior to its maturity. All
such Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All income and gain (net of any losses)
realized from any such investment of funds on deposit in the NMC Servicer
Custodial Account shall be for the benefit of the NMC Servicer as servicing
compensation and shall be retained by it monthly as provided herein. All income
or gain (net of any losses) realized from any such investment of funds on
deposit in the BA Servicer Custodial Account shall be for the benefit of the BA
Servicer as servicing compensation and shall be retained by it monthly as
provided herein. All income or gain (net of any losses) realized from any such
investment of funds on deposit in the Certificate Account shall be for the
benefit of the Trustee as additional compensation and shall be retained by it
monthly as provided herein. The amount of any losses realized in the NMC
Servicer Custodial Account, the BA Servicer Custodial Account or the Certificate
Account incurred in any such account in respect of any such investments shall
promptly be deposited by the NMC Servicer in the NMC Servicer Custodial Account,
the BA Servicer in the BA Servicer Custodial Account or by the Trustee in the
Certificate Account, as applicable.
(e) A Servicer shall give notice to the Trustee of any proposed
change of the location of the Servicer Custodial Account maintained by such
Servicer not later than 30 days and not more than 45 days prior to any change
thereof. The Trustee shall give notice to the Servicers, each Rating Agency and
the Depositor of any proposed change of the location of the Certificate Account
not later than 30 days and not more than 45 days prior to any change thereof.
The creation of any Servicer Custodial Account shall be evidenced by a
certification substantially in the form of EXHIBIT F hereto. A copy of such
certification shall be furnished to the Trustee.
(f) The Trustee shall establish and maintain the Upper-Tier
Certificate Account. On each Distribution Date (other than the Final
Distribution Date, if such Final Distribution Date is in connection with a
purchase of the assets of the Trust Estate by the Depositor), the Trustee shall,
from funds available on deposit in the Certificate Account, deposit, in
immediately available funds, by wire transfer or otherwise, into the Upper-Tier
Certificate Account, the Lower-Tier Distribution Amount.
Section 3.09 COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR ITEMS;
ESCROW ACCOUNTS.
(a) To the extent required by the related Mortgage Note and not
violative of current law, each Servicer shall segregate and hold all funds
collected and received pursuant to each Mortgage Loan serviced by such Servicer
which constitute Escrow Payments in trust separate and apart from any of its own
funds and general assets and for such purpose shall establish and maintain one
or more escrow accounts (collectively, the "ESCROW ACCOUNT"), titled "[Insert
name of Servicer], in trust for registered holders of Bank of America Mortgage
Securities, Inc. Mortgage Pass-Through Certificates, Series 1999-2 and various
Mortgagors." The Escrow Account shall be established with a commercial bank, a
savings bank or a savings and loan association that meets the guidelines set
forth by FNMA or FHLMC as an eligible institution for escrow accounts and which
is a member of the Automated Clearing House. In any case, the Escrow Account
shall be insured by the FDIC to the fullest extent permitted by law. Each
Servicer shall deposit in the appropriate Escrow Account on a daily basis, and
retain therein: (i) all Escrow Payments collected on account of the Mortgage
Loans serviced by such Servicer, (ii) all amounts representing proceeds of any
hazard insurance policy which are to be applied to the restoration or repair of
any related Mortgaged Property; (iii) all amounts representing proceeds of any
Primary Insurance Policy; and (iv) all amounts representing Buydown Funds.
Nothing herein shall require either Servicer to compel a Mortgagor to establish
an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts
may be made by the related Servicer only (i) to effect timely payment of taxes,
assessments, mortgage insurance premiums, fire and hazard insurance premiums,
condominium or PUD association dues, or comparable items constituting Escrow
Payments for the related Mortgage, (ii) to reimburse such Servicer out of
related Escrow Payments made with respect to a Mortgage Loan for any Servicing
Advance made by such Servicer pursuant to Section 3.09(c) with respect to such
Mortgage Loan, (iii) to refund to any Mortgagor any sums determined to be
overages, (iv) for transfer to the related Servicer Custodial Account upon
default of a Mortgagor or in accordance with the terms of the related Mortgage
Loan and if permitted by applicable law, (v) for application to restore or
repair the Mortgaged Property, (vi) to pay to the Mortgagor, to the extent
required by law, any interest paid on the funds deposited in the Escrow Account,
(vii) to pay to itself any interest earned on funds deposited in the Escrow
Account (and not required to be paid to the Mortgagor), (viii) to the extent
permitted under the terms of the related Mortgage Note and applicable law, to
pay late fees with respect to any Monthly Payment which is received after the
applicable grace period, (ix) to withdraw suspense payments that are deposited
into the Escrow Account, (x) to withdraw any amounts inadvertently deposited in
the Escrow Account; (xi) to clear and terminate the Escrow Account upon the
termination of this Agreement in accordance with Section 10.01; or (xii) to
deposit in the related Servicer Custodial Account amounts available in
accordance with any Buydown Agreement. Any Escrow Account shall not be a part of
the Trust Estate.
(c) With respect to each Mortgage Loan it services, each Servicer
shall maintain accurate records reflecting the status of taxes, assessments and
other charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Insurance Policy premiums and fire and hazard insurance
coverage. Each Servicer shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account, if any, which shall have been
estimated and accumulated by such Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. To the extent that a
Mortgage does not provide for Escrow Payments, the related Servicer shall
determine that any such payments are made by the Mortgagor. The related Servicer
assumes full responsibility for the timely payment of all such bills and shall
effect timely payments of all such bills irrespective of each Mortgagor's
faithful performance in the payment of same or the making of the Escrow
Payments. The related Servicer shall advance any such payments that are not
timely paid, but such Servicer shall be required so to advance only to the
extent that such Servicing Advances, in the good faith judgment of such
Servicer, will be recoverable by such Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise.
Section 3.10 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING THE MORTGAGE LOANS.
Each Servicer shall afford the Trustee reasonable access to all
records and documentation regarding the Mortgage Loans serviced by said Servicer
and all accounts, insurance information 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 office designated by the
applicable Servicer.
Upon reasonable advance notice in writing, each Servicer will
provide to each Certificateholder which is a savings and loan association, bank
or insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans serviced by such Servicer 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 such Servicer shall be entitled to be reimbursed by
each such Certificateholder for actual expenses incurred by such Servicer in
providing such reports and access.
Section 3.11 PERMITTED WITHDRAWALS FROM THE SERVICER CUSTODIAL
ACCOUNTS, CERTIFICATE ACCOUNT AND UPPER-TIER
CERTIFICATE ACCOUNT.
(a) The NMC Servicer may from time to time make withdrawals from
the NMC Servicer Custodial Account, and the BA Servicer may from time to time
make withdrawals from the BA Servicer Custodial Account, for the following
purposes:
(i) to pay to the related Servicer (to the extent not previously
retained), the servicing compensation to which it is entitled pursuant to
Section 3.17, and to pay to the related Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds in or
credited to the related Servicer Custodial Account;
(ii) to reimburse the related Servicer for unreimbursed Advances
made by it, such right of reimbursement pursuant to this clause (ii) being
limited to amounts received on the Mortgage Loan(s) in respect of which
any such Advance was made;
(iii) to reimburse the related Servicer for any Nonrecoverable
Advance previously made;
(iv) to reimburse the related Servicer for Insured Expenses from
the related Insurance Proceeds;
(v) to pay to the purchaser, with respect to each Mortgage Loan
or REO Property that has been purchased pursuant to Section 2.02 or 2.05,
all amounts received thereon after the date of such purchase;
(vi) to reimburse the related Servicer or the Depositor for
expenses incurred by any of them and reimbursable pursuant to Section
7.03;
(vii) to withdraw any amount deposited in the related Servicer
Custodial Account and not required to be deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an amount
equal to the related Pool Distribution Amount, the related Trustee Fee and
any other amounts due to the Trustee under this Agreement for such
Distribution Date, to the extent on deposit, and remit such amount in
immediately available funds to the Trustee for deposit in the Certificate
Account; and
(ix) to clear and terminate the related Servicer Custodial
Account upon termination of this Agreement pursuant to Section 10.01.
Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the related Servicer Custodial Account pursuant to clauses (i),
(ii), (iv) and (v). Prior to making any withdrawal from the related Servicer
Custodial Account pursuant to clause (iii), each Servicer shall deliver to the
Trustee an Officer's Certificate of a Servicing Officer indicating the amount of
any previous Advance determined by such 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 Certificate Account
for distributions to Certificateholders in the manner specified in this
Agreement. In addition, the Trustee may from time to time make withdrawals from
the Certificate Account for the following purposes:
(i) to pay to itself the Trustee Fee and any other amounts due
to the Trustee under this Agreement for the related Distribution Date;
(ii) to pay to itself as additional compensation earnings on or
investment income with respect to funds in the Certificate Account;
(iii) to withdraw and return to the related Servicer any amount
deposited in the Certificate Account and not required to be deposited
therein; and
(iv) to clear and terminate the Certificate Account upon
termination of the Agreement pursuant to Section 10.01.
(c) Notwithstanding anything herein to the contrary, the Classes
of Certificates (other than the Class A-LR Certificate) shall not receive
distributions directly from the Certificate Account. On each Distribution Date,
funds on deposit in the Upper-Tier Certificate Account shall be used to make
payment on the Classes of Certificates (other than the Class A-LR Certificate)
as provided in Sections 5.01 and 5.02. The Upper-Tier Certificate Account shall
be cleared and terminated upon termination of this Agreement pursuant to Section
10.01.
Section 3.12 MAINTENANCE OF HAZARD INSURANCE.
Each Servicer shall cause to be maintained for each Mortgage Loan
serviced by such Servicer fire and hazard insurance with extended coverage
customary in the area where the Mortgaged Property is located in an amount which
is at least equal to the lesser of (a) the full insurable value of the Mortgaged
Property or (b) the greater of (i) the outstanding principal balance owing on
the Mortgage Loan and (ii) an amount such that the proceeds of such insurance
shall be sufficient to avoid the application to the Mortgagor or loss payee of
any coinsurance clause under the policy. If the Mortgaged Property is 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)
the related Servicer will cause to be maintained a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration and the requirements of FNMA or FHLMC. Each Servicer shall also
maintain on REO Property serviced by such Servicer, fire and hazard insurance
with extended coverage in an amount which is at least equal to the maximum
insurable value of the improvements which are a part of such property, liability
insurance and, to the extent required, flood insurance in an amount required
above. Any amounts collected by a Servicer under any such policies (other than
amounts to be deposited in an Escrow Account and applied to the restoration or
repair of the property subject to the related Mortgage or property acquired in
liquidation of the Mortgage Loan, or to be released to the Mortgagor in
accordance with Customary Servicing Procedures) shall be deposited in the
related Servicer Custodial Account, subject to withdrawal pursuant to Section
3.11(a). It is understood and agreed that no earthquake or other additional
insurance need be required by a Servicer of any Mortgagor or maintained on REO
Property, other than pursuant to such applicable laws and regulations as shall
at any time be in force and as shall require such additional insurance. All
policies required hereunder shall be endorsed with standard mortgagee clauses
with loss payable to the related Servicer, and shall provide for at least 30
days prior written notice of any cancellation, reduction in amount or material
change in coverage to such Servicer.
The hazard insurance policies for each Mortgage Loan secured by a
unit in a condominium development or planned unit development shall be
maintained with respect to such Mortgage Loan and the related development in a
manner which is consistent with FNMA requirements.
Notwithstanding the foregoing, either Servicer may maintain a
blanket policy insuring against hazard losses on all of the Mortgaged Properties
relating to the Mortgage Loans serviced by such Servicer in lieu of maintaining
the required hazard insurance policies for each Mortgage Loan and may maintain a
blanket policy insuring against special flood hazards in lieu of maintaining any
required flood insurance. Any such blanket policies shall (A) be consistent with
prudent industry standards, (B) name the related Servicer as loss payee, (C)
provide coverage in an amount equal to the aggregate unpaid principal balance on
the related Mortgage Loans without co-insurance, and (D) otherwise comply with
the requirements of this Section 3.12. Any such blanket policy may contain a
deductible clause; provided that if any Mortgaged Property is not covered by a
separate policy otherwise complying with this Section 3.12 and a loss occurs
with respect to such Mortgaged Property which loss would have been covered by
such a policy, the related Servicer shall deposit in the related Servicer
Custodial Account the difference, if any, between the amount that would have
been payable under a separate policy complying with Section 3.12 and the amount
paid under such blanket policy.
Section 3.13 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS.
(a) Except as otherwise provided in this Section 3.13, when any
Mortgaged Property subject to a Mortgage has been conveyed by the Mortgagor, the
related Servicer shall use reasonable efforts, to the extent that it has actual
knowledge of such conveyance, to 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, a 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 required under such Mortgage Note or Mortgage as a condition to such
transfer. If (i) the related Servicer is prohibited by law from enforcing any
such due-on-sale clause, (ii) coverage under any Required Insurance Policy would
be adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause or (iv) nonenforcement is otherwise permitted hereunder, the related
Servicer is authorized, subject to Section 3.13(b), to take or enter into an
assumption and modification agreement from or with the Person to whom such
Mortgaged 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 related
Servicer enters such agreement) by the applicable Required Insurance Policies.
The related Servicer, subject to Section 3.13(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, a Servicer shall not be deemed to be in default under this Section
3.13 by reason of any transfer or assumption which such Servicer reasonably
believes it is restricted by law from preventing, for any reason whatsoever.
(b) Subject to a Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.13(a), 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 related 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 no event shall the Trustee incur liability for executing any document under
this Section 3.13 at the direction of a Servicer. In connection with any such
assumption, no material term of the Mortgage Note may be changed. In addition,
the substitute Mortgagor and the Mortgaged Property must be acceptable to the
related Servicer in accordance with its underwriting standards as then in
effect. Together with each such substitution, assumption or other agreement or
instrument delivered to the Trustee for execution by it, the related Servicer
shall deliver an Officer's Certificate signed by a Servicing Officer stating
that the requirements of this subsection have been met. Each Servicer shall
notify the Trustee that any such substitution or assumption agreement has been
completed by forwarding to the Trustee (or at the direction of the Trustee, the
Custodian) 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 a Servicer for entering into an assumption or substitution of
liability agreement may be retained by such Servicer as additional master
servicing compensation. Notwithstanding the foregoing, to the extent permissible
under applicable law and at the request of either Servicer, the Trustee shall
execute and deliver to such Servicer any powers of attorney and other documents
prepared by such Servicer that are reasonably necessary or appropriate to enable
such Servicer to execute any assumption agreement or modification agreement
required to be executed by the Trustee under this Section 3.13.
Section 3.14 REALIZATION UPON DEFAULTED MORTGAGE LOANS; REO
PROPERTY.
(a) Each Servicer shall use reasonable efforts to foreclose upon
or otherwise comparably convert the ownership of Mortgaged Properties securing
such of the Mortgage Loans serviced by such Servicer 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, each Servicer shall follow Customary Servicing Procedures and shall
meet the requirements of the insurer under any Required Insurance Policy;
provided, however, that either Servicer may enter into a special servicing
agreement with an unaffiliated Holder of 100% Percentage Interest of a Class of
Class B Certificates or a holder of a class of securities representing interests
in the Class B Certificates and any other subordinated mortgage pass-through
certificates. Such agreement shall be subject to each Rating Agency's
acknowledgment that the ratings of the Certificates in effect immediately prior
to the entering into such agreement would not be qualified, downgraded or
withdrawn and the Certificates would not be placed on credit review status
(except for possible upgrading) as a result of such agreement. Any such
agreement may contain provisions whereby such holder may instruct the applicable
Servicer to commence or delay foreclosure proceedings with respect to delinquent
Mortgage Loans serviced by such Servicer and will contain provisions for the
deposit of cash by the holder that would be available for distribution to
Certificateholders if Liquidation Proceeds are less than they otherwise may have
been had the Servicer acted in accordance with its normal procedures.
Notwithstanding the foregoing, a Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the restoration of any
Mortgaged 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 proceeds of the liquidation of the Mortgage Loan
(respecting which it shall have priority for purposes of withdrawals from the
related Servicer Custodial Account). Any such expenditures shall constitute
Servicing Advances for purposes of this Agreement.
The decision of either Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by such Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding.
Unless the related Buydown Agreement provides otherwise, neither
Servicer may use Buydown Funds relating to a Mortgage Loan to cure a delinquency
with respect to such Mortgage Loan. Any Buydown Funds remaining in the
associated Escrow Account of a Mortgage Loan in foreclosure must be disposed of
in accordance with the terms of the related Buydown Agreement.
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 its 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 related Servicer shall
ensure that the title to such REO Property references this Agreement and the
Trustee's capacity hereunder. Pursuant to its efforts to sell such REO Property,
the related Servicer shall either itself or through an agent selected by such
Servicer manage, conserve, protect and operate such REO Property in the same
manner that it manages, conserves, protects and operates other foreclosed
property for its own account and in the same manner that similar property in the
same locality as the REO Property is managed. Incident to its conservation and
protection of the interests of the Certificateholders, such Servicer may rent
the same, or any part thereof, as such Servicer deems to be in the best interest
of the Certificateholders for the period prior to the sale of such REO Property.
Each Servicer shall prepare for and deliver to the Trustee a statement with
respect to each REO Property serviced by such Servicer that has been rented, if
any, 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; provided, however, that a Servicer shall
have no duty to rent any REO Property on behalf of the Trust. The net monthly
rental income, if any, from such REO Property shall be deposited in the related
Servicer Custodial Account no later than the close of business on each
Determination Date. Each Servicer shall perform, with respect to the Mortgage
Loans serviced by such Servicer, the tax reporting and withholding required by
Sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required by
Section 6050P of the Code with respect to the cancellation of indebtedness by
certain financial entities, by preparing such tax and information returns as may
be required, in the form required. Each Servicer shall deliver copies of such
reports to the Trustee.
If the Trust acquires any Mortgaged Property as described above or
otherwise in connection with a default or a default which is reasonably
foreseeable on a Mortgage Loan, the related Servicer shall dispose of such
Mortgaged Property prior to the end of the third calendar year following the
year of its acquisition by the Trust (such period, the "REO DISPOSITION PERIOD")
unless (A) the Trustee shall have been supplied by such Servicer with an Opinion
of Counsel to the effect that the holding by the Trust of such Mortgaged
Property subsequent to the REO Disposition Period will not result in the
imposition of taxes on "prohibited transactions" on either the Upper-Tier REMIC
or the Lower-Tier REMIC (as defined in Section 860F of the Code) or cause either
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding, or (B) the Trustee (at such Servicer's expense) or such Servicer
shall have applied for, prior to the expiration of the REO Disposition Period,
an extension of the REO Disposition Period in the manner contemplated by Section
856(e)(3) of the Code. If such an Opinion of Counsel is provided or such an
exemption is obtained, the Trust may continue to hold such Mortgaged Property
(subject to any conditions contained in such Opinion of Counsel) for the
applicable period. Notwithstanding any other provision of this Agreement, no
Mortgaged Property acquired by the Trust 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 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 either REMIC 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 related Servicer has agreed to indemnify and hold harmless the Trust with
respect to the imposition of any such taxes. Each Servicer shall identify to the
Trustee any Mortgaged Property relating to a Mortgage Loan serviced by such
Servicer held by the Trust for 30 months for which no plans to dispose of such
Mortgaged Property by such Servicer have been made. After delivery of such
identification, the related Servicer shall proceed to dispose of any such
Mortgaged Property by holding a commercially reasonable auction for such
property.
The income earned from the management of any REO Properties, net of
reimbursement to the related Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Servicing Fees, Periodic Advances and Servicing Advances, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (solely for the purposes of allocating principal and interest,
interest shall be treated as 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 related Servicer Custodial
Account. To the extent the net income received during any calendar month is in
excess of the amount attributable to amortizing principal and accrued interest
at the related Mortgage Interest Rate on the related Mortgage Loan for such
calendar month, such excess shall be considered to be a partial prepayment of
principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the related Servicer for any related unreimbursed Servicing
Advances and Servicing Fees; second, to reimburse the related Servicer for any
unreimbursed Periodic Advances and to reimburse the related Servicer Custodial
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the related Servicer pursuant to Section 3.11(a)(iii)
that related to such Mortgage Loan; third, to accrued and unpaid interest (to
the extent no Periodic Advance has been made for such amount or any such
Periodic Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the 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. Excess Proceeds, if any, from the liquidation of
a Liquidated Mortgage Loan will be retained by the related Servicer as
additional servicing compensation pursuant to Section 3.17.
(b) Each Servicer shall promptly notify the Depositor of any
Mortgage Loan serviced by such Servicer which comes into default. The Depositor
shall be entitled, at its option, to repurchase (i) any such defaulted Mortgage
Loan from the Trust Estate if, in the Depositor's judgment, the default is not
likely to be cured by the Mortgagor or (ii) any Mortgage Loan in the Trust
Estate which pursuant to Section 4(b) of the applicable Mortgage Loan Purchase
Agreement the applicable Seller requests the Depositor to repurchase and to sell
to such Seller to facilitate the exercise of the Seller's rights against the
originator or prior holder of such Mortgage Loan. The purchase price for any
such Mortgage Loan shall be 100% of the unpaid principal balance of such
Mortgage Loan plus accrued interest thereon at the Mortgage Interest Rate (less
the Servicing Fee Rate for such Mortgage Loan) through the last day of the month
in which such repurchase occurs. Upon the receipt of such purchase price, the
applicable Servicer shall provide to the Trustee the notification required by
Section 3.15 and the Trustee or the Custodian shall promptly release to the
Depositor the Mortgage File relating to the Mortgage Loan being repurchased.
Section 3.15 TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, or the receipt by a
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the related Servicer will immediately notify the
Trustee (or, at the direction of the Trustee, the Custodian) by delivering, or
causing to be delivered, two copies (one of which will be returned to such
Servicer with the Mortgage File) of a Request for Release (which may be
delivered in an electronic format acceptable to the Trustee and the related
Servicer). Upon receipt of such request, the Trustee or the Custodian, as
applicable, shall within seven Business Days release the related Mortgage File
to the related Servicer. The Trustee shall at the related Servicer's direction
execute and deliver to such 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 such Servicer, together with
the Mortgage Note with written evidence of cancellation thereon. Expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor. 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 or the Custodian, as
applicable, shall, upon delivery to the Trustee (or, at the direction of the
Trustee, the Custodian) of a Request for Release signed by a Servicing Officer,
release the Mortgage File within seven Business Days to the related Servicer.
Subject to the further limitations set forth below, the related Servicer shall
cause the Mortgage File so released to be returned to the Trustee or the
Custodian, as applicable, when the need therefor by such Servicer no longer
exists, unless the Mortgage Loan is liquidated and the proceeds thereof are
deposited in the related Servicer Custodial Account, in which case the related
Servicer shall deliver to the Trustee or the Custodian, as applicable, a Request
for Release, signed by a Servicing Officer.
The Trustee shall execute and deliver to either Servicer any powers
of attorney and other documents prepared by such Servicer that are reasonably
necessary or appropriate to enable such Servicer to carry out its servicing and
administrative duties under this Agreement, upon the request of such Servicer.
In addition, upon prepayment in full of any Mortgage Loan or the receipt of
notice that funds for such purpose have been placed in escrow, the related
Servicer is authorized to give, as attorney-in-fact for the Trustee and the
mortgagee under the Mortgage, an instrument of satisfaction (or Assignment of
Mortgage without recourse) regarding the Mortgaged Property relating to such
Mortgage Loan, which instrument of satisfaction or Assignment of Mortgage, as
the case may be, shall be delivered to the Person entitled thereto against
receipt of the prepayment in full. In lieu of executing such satisfaction or
Assignment of Mortgage, or if another document is required to be executed by the
Trustee, the related Servicer may 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.
Section 3.16 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF THE
SERVICERS TO BE HELD FOR THE TRUSTEE.
Each Servicer shall transmit to the Trustee or, at the direction of
the Trustee, the Custodian as required by this Agreement all documents and
instruments in respect of a Mortgage Loan serviced by such Servicer coming into
the possession of such Servicer from time to time and shall account fully to the
Trustee for any funds received by such Servicer or which otherwise are collected
by such Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan serviced by such Servicer. The documents constituting the
Servicing File shall be held by the related Servicer as custodian and bailee for
the Trustee. All Mortgage Files and funds collected or held by, or under the
control of, either 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 related Servicer
Custodial Account, shall be held by such 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. Each Servicer also
agrees that it shall not knowingly create, incur or subject any Mortgage File or
any funds that are deposited in the related Servicer Custodial Account,
Certificate Account or any Escrow Account, 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 created by such Servicer, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that each Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to such Servicer under this
Agreement.
Section 3.17 SERVICING COMPENSATION.
Each Servicer shall be entitled out of each payment of interest on a
Mortgage Loan (or portion thereof) serviced by such Servicer and included in the
Trust Estate to retain or withdraw from the related Servicer Custodial Account
an amount equal to the Servicing Fee for such Distribution Date.
Additional servicing compensation in the form of Excess Proceeds,
prepayment penalties, assumption fees, late payment charges and all income and
gain net of any losses realized from Permitted Investments and all other
customary and ancillary income and fees shall be retained by the related
Servicer to the extent not required to be deposited in the related Servicer
Custodial Account pursuant to Section 3.08(b). Each Servicer shall be required
to pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided in this Agreement.
Notwithstanding the foregoing, with respect to the payment of the
Servicing Fee on any Distribution Date, the aggregate Servicing Fee for each
Servicer for such Distribution Date shall be reduced (but not below zero) by an
amount equal to the lesser of (a) the Prepayment Interest Shortfall for such
Distribution Date relating to the Mortgage Loans serviced by such Servicer and
(b) one-twelfth of 0.25% of the aggregate Scheduled Principal Balance of such
Mortgage Loans for such Distribution Date (any such reduction, "COMPENSATING
INTEREST").
Section 3.18 ANNUAL STATEMENT AS TO COMPLIANCE.
Each Servicer shall deliver to the Trustee and each Rating Agency on
or before 90 days after the end of such Servicer's fiscal year, commencing with
its 1999 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (a) a review of the activities of such Servicer during the
preceding calendar year and of the performance of such Servicer under this
Agreement has been made under such officer's supervision, and (b) to the best of
such officer's knowledge, based on such review, such 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.
Section 3.19 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
STATEMENT; FINANCIAL STATEMENTS.
Each Servicer shall, at its own expense, on or before 90 days after
the end of such Servicer's fiscal year, commencing with its 1999 fiscal year,
cause a firm of independent public accountants (who may also render other
services to such Servicer or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Trustee to the effect that such firm has with respect to such Servicer's overall
servicing operations, examined such operations in accordance with the
requirements of the Uniform Single Attestation Program for Mortgage Bankers,
stating such firm's conclusions relating thereto.
Section 3.20 ADVANCES.
Each Servicer shall determine on or before each Servicer Advance
Date whether it is required to make a Periodic Advance pursuant to the
definition thereof. If either Servicer determines it is required to make a
Periodic Advance, it shall, on or before the Servicer Advance Date, either (a)
deposit into the related Servicer Custodial Account an amount equal to the
Advance and/or (b) make an appropriate entry in its records relating to the
related Servicer Custodial Account that any portion of the Amount Held for
Future Distribution in such Servicer Custodial Account has been used by such
Servicer in discharge of its obligation to make any such Periodic Advance. Any
funds so applied shall be replaced by such Servicer by deposit in the related
Servicer Custodial Account no later than the close of business on the Business
Day preceding the next Servicer Advance Date. Each Servicer shall be entitled to
be reimbursed from the related Servicer Custodial Account for all Advances of
its own funds made pursuant to this Section 3.20 as provided in Section 3.11(a).
The obligation to make Periodic Advances with respect to any Mortgage Loan shall
continue until the ultimate disposition of the REO Property or Mortgaged
Property relating to such Mortgage Loan. Each Servicer shall inform the Trustee
of the amount of the Periodic Advance to be made by such Servicer on each
Servicer Advance Date no later than the related Remittance Date.
Each Servicer shall deliver to the Trustee on the related Servicer
Advance Date an Officer's Certificate of a Servicing Officer indicating the
amount of any proposed Periodic Advance determined by such Servicer to be a
Nonrecoverable Advance. Notwithstanding anything to the contrary, the related
Servicer shall not be required to make any Periodic Advance or Servicing Advance
that would be a Nonrecoverable Advance.
Section 3.21 MODIFICATIONS, WAIVERS, AMENDMENTS AND CONSENTS.
(a) Subject to this Section 3.21, each Servicer may agree to any
modification, waiver, forbearance, or amendment of any term of any Mortgage Loan
serviced by such Servicer without the consent of the Trustee or any
Certificateholder. All modifications, waivers, forbearances or amendments of any
Mortgage Loan shall be in writing and shall be consistent with Customary
Servicing Procedures.
(b) A Servicer shall not agree to enter into, and shall not enter
into, any modification, waiver (other than a waiver referred to in Section 3.13,
which waiver, if any, shall be governed by Section 3.13), forbearance or
amendment of any term of any Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder;
(ii) in such Servicer's judgment, materially impair the security
for such Mortgage Loan or reduce the likelihood of timely payment of
amounts due thereon; or
(iii) otherwise constitutes a "significant modification" within
the meaning of Treasury Regulations Section 1.860G-2(b);
unless, in either case, (A) such Mortgage Loan is 90 days or more past due or
(B) such Servicer delivers to the Trustee an Opinion of Counsel to the effect
that such modification, waiver, forbearance or amendment would not affect the
REMIC status of either the Upper-Tier REMIC or the Lower-Tier REMIC and, in
either case, such modification, waiver, forbearance or amendment is reasonably
likely to produce a greater recovery with respect to such Mortgage Loan than
would liquidation. Subject to Customary Servicing Procedures, either Servicer
may permit a forbearance for a Mortgage Loan serviced by such Servicer which in
such Servicer's judgment is subject to imminent default.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver, forbearance or amendment permitted hereunder, shall not,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
or such modification, waiver or amendment so permit.
(d) Either Servicer may, as a condition to granting any request by
a Mortgagor for consent, modification, waiver, forbearance or amendment, the
granting of which is within such Servicer's discretion pursuant to the Mortgage
Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to such Servicer, as additional servicing compensation, a
reasonable or customary fee for the additional services performed in connection
with such request, together with any related costs and expenses incurred by such
Servicer, which amount shall be retained by such Servicer as additional
servicing compensation.
(e) Each Servicer shall notify the Trustee, in writing, of any
modification, waiver, forbearance or amendment of any term of any Mortgage Loan
serviced by such Servicer and the date thereof, and shall deliver to the Trustee
(or, at the direction of the Trustee, the Custodian) for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver, forbearance or amendment, promptly (and in any event
within ten Business Days) following the execution thereof; provided, however,
that if any such modification, waiver, forbearance or amendment is required by
applicable law to be recorded, the related Servicer (i) shall deliver to the
Trustee a copy thereof and (ii) shall deliver to the Trustee such document, with
evidence of notification upon receipt thereof from the public recording office.
Section 3.22 REPORTS TO THE SECURITIES AND EXCHANGE COMMISSION.
The Trustee shall, on behalf of the Trust, cause to be filed with
the Securities and Exchange Commission any periodic reports required to be filed
under the provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Securities and Exchange Commission thereunder, for
so long as any Certificates registered under the 1933 Act are outstanding (other
than the Current Report on Form 8-K to be filed by the Depositor in connection
with computational materials and the initial Current Report on Form 8-K to be
filed by the Depositor in connection with the issuance of the Certificates).
Upon the request of the Trustee, each of the Servicers and the Depositor shall
cooperate with the Trustee in the preparation of any such report and shall
provide to the Trustee in a timely manner all such information or documentation
as the Trustee may reasonably request in connection with the performance of its
duties and obligations under this Section.
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 SERVICER'S CERTIFICATE.
Each month, not later than 12:00 noon Eastern time on the Business
Day following each Determination Date, each Servicer shall deliver to the
Trustee, a Servicer's Certificate (in substance and format mutually acceptable
to such Servicer and the Trustee) certified by a Servicing Officer setting forth
the information necessary in order for the Trustee to perform its obligations
under this Agreement. The Trustee may conclusively rely upon the information
contained in a Servicer's Certificate for all purposes hereunder and shall have
no duty to verify or re-compute any of the information contained therein.
Each such statement shall be provided by the Trustee to any Holder
of a Certificate upon request and shall also, to the extent available, include
information regarding delinquencies on Mortgage Loans serviced by the Servicer
providing such statement, indicating the number and aggregate principal amount
of Mortgage Loans which are either one, two, three or more than three months
delinquent and the book value of any REO Property.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 DISTRIBUTIONS. On each Distribution Date, based solely
on the information in the Servicer's Certificate the Trustee shall distribute
out of the Upper-Tier Certificate Account or Certificate Account, as applicable,
(to the extent funds are available therein) to each Certificateholder of record
on the related Record Date (other than as provided in Section 10.01 respecting
the final distribution) (a) by check mailed to such Certificateholder entitled
to receive a distribution on such Distribution Date at the address appearing in
the Certificate Register, or (b) upon written request by the Holder of a Regular
Certificate (in the event such Certificateholder owns of record 100% of a Class
of Certificates or holds Certificates of any Class having denominations
aggregating $1,000,000 or more), by wire transfer or by such other means of
payment as such Certificateholder and the Trustee shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth below in
Section 5.02.
None of the Holders of any Class of Certificates, the Depositor, the
Servicers or the Trustee shall in any way be responsible or liable to Holders of
any Class of Certificates in respect of amounts properly previously distributed
on any such Class.
Amounts distributed with respect to any Class of Certificates shall
be applied first to the distribution of interest thereon and then to principal
thereon.
Section 5.02 PRIORITIES OF DISTRIBUTION.
(a) On each Distribution Date, based solely on the information
contained in the Servicer's Certificate, the Trustee shall withdraw from the
Certificate Account (to the extent funds are available therein) (1) the amounts
payable to the Trustee pursuant to Sections 3.11(b)(i) and 3.11(b)(ii) and shall
pay such funds to itself, and (2) the Pool Distribution Amount, in an amount as
specified in written notice received by the Trustee from the Servicers no later
than the related Determination Date, and shall apply such funds, first, to
distributions in respect of the Uncertificated Lower-Tier Interests as specified
in this Section 5.02(a) for deposit in the Upper-Tier Certificate Account, and
then from the Upper-Tier Certificate Account to distributions on the
Certificates in the following order of priority and to the extent of such funds:
(i) to each Class of Senior Certificates (other than the Class
A-PO Certificates), an amount allocable to interest equal to the Interest
Distribution Amount for such Class, any shortfall being allocated among
such Classes in proportion to the amount of the Interest Distribution
Amount that would have been distributed in the absence of such shortfall
and any shortfall allocated to the Class A-14 Certificates being allocated
among the Components in proportion to the amount of Component Interest
Distribution Amount that would have been distributed with respect to such
Component in the absence of such shortfall; provided, however, that until
the applicable Accretion Termination Date, amounts that would have been
distributed pursuant to this clause to the Class A-10 Certificates or the
Class A-14 Certificates with respect to the Class A-14 TAC Component will
instead be distributed in reduction of the Class Certificate Balance
and/or Component Balance of the Classes of Certificates and/or Component
specified in Section 5.02(b);
(ii) concurrently to the Class A Certificates (other than the
Class A-PO Certificates) and the Class A-PO Certificates, pro rata, based
on their respective Senior Principal Distribution Amount and PO Principal
Amount, (A) to the Class A Certificates (other than the Class A-PO
Certificates), in an aggregate amount up to the Senior Principal
Distribution Amount, such distribution to be allocated among such Classes
in accordance with Section 5.02(b) and (B) to the Class A-PO Certificates
in an aggregate amount up to the PO Principal Amount;
(iii) to the Class A-PO Certificates, any Class A-PO Deferred
Amount, up to the Subordinate Principal Distribution Amount for such
Distribution Date from amounts otherwise distributable first to the Class
B-6 Certificates pursuant to clause (iv)(L) below, second to the Class B-5
Certificates pursuant to clause (iv)(J) below, third to the Class B-4
Certificates pursuant to clause (iv)(H) below, fourth to the Class B-3
Certificates pursuant to clause (iv)(F) below, fifth to the Clause B-2
Certificates pursuant to clause (iv)(D) below and finally to the Class B-1
Certificates pursuant to clause (iv)(B) below;
(iv) to each Class of Subordinate Certificates, subject to
paragraph (d) below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class A-PO Deferred Amount pursuant
to clause (iii) above until the Class Certificate Balance thereof
has been reduced to zero; and
(v) to the Holder of the Class A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Account, and to the Holder of the
Class A-LR Certificate, any remaining Pool Distribution Amount.
On any Distribution Date, amounts distributed in respect of Class
A-PO Deferred Amounts will not reduce the Class Certificate Balance of the Class
A-PO Certificates.
All distributions in respect of the Interest Distribution Amount for
a Class or the Component Interest Distribution Amount for a Component will be
applied first with respect to the amount payable pursuant to clause (i) of the
definition of "INTEREST DISTRIBUTION AMOUNT" or "COMPONENT INTEREST DISTRIBUTION
AMOUNT," as applicable, and second with respect to the amount payable pursuant
to clause (ii) of such definitions.
On each Distribution Date, based solely on the information contained
in the Servicer's Certificate, each Uncertificated Lower-Tier Interest shall
receive distributions in respect of principal in an amount equal to the amount
of principal distributed to their respective Corresponding Upper-Tier Class,
Classes, Component or Components as provided herein. On each Distribution Date,
each Uncertificated Lower-Tier Interest shall receive distributions in respect
of interest in an amount equal to the Interest Distribution Amounts in respect
of its Corresponding Upper-Tier Class, Classes, Component or Components, in each
case to the extent actually distributed as interest thereon. In the case of the
Class A-L1 Interest, an amount equal to the Interest Distribution Amounts of the
Class A-10 Certificates and the Class A-14 TAC Component, which are added to the
Class Certificate Balance and Component Balance thereof, shall be added to the
principal balance of the Class A-L1 Interest. Such amounts distributed to the
Uncertificated Lower-Tier Interests in respect of principal and interest with
respect to any Distribution Date are referred to herein collectively as the
"LOWER-TIER DISTRIBUTION AMOUNT."
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the aggregate of the Class Certificate Balances and
Component Balances of the respective Corresponding Upper-Tier Class, Classes,
Component or Components. The initial principal balance of each Uncertificated
Lower-Tier Interest equals the aggregate of the Initial Class Certificate
Balances and Initial Component Balances of the respective Corresponding
Upper-Tier Class, Classes, Component or Components.
The pass-through rate with respect to the Class A-L1 Interest, Class
A-L11 Interest, Class A-L12 Interest, Class A-L13 Interest, Class A-LUR
Interest, Class B-L1 Interest, Class B-L2 Interest, Class B-L3 Interest, Class
B-L4 Interest, Class B-L5 Interest and Class B-L6 Interest shall be 6.50% per
annum. The pass-through rate with respect to the Class A-L7 Interest shall be
6.90% per annum. The pass-through rate with respect to the Class A-L8
Certificate shall be 5.50% per annum. The Class A-LPO Interest is a
principal-only interest and is not entitled to distributions of interest. Any
reductions to interest accrued pursuant to Section 5.02(c) will be allocated to
each Uncertificated Lower-Tier Interest in the same relative proportions as
interest is allocated to such Uncertificated Lower-Tier Interest.
(b) (i) On each Distribution Date occurring prior to the Accretion
Termination Date for the Class A-10 Certificates, based solely on the
information contained in the Servicer's Certificate, the Accrual Distribution
Amount for the Class A-10 Certificates will be allocated sequentially as
follows:
(A) first, to the TAC Group, up to the TAC Principal Amount
for such Distribution Date; and
(B) second, to the Class A-10 Certificates, until their Class
Certificate Balance has been reduced to zero.
(ii) On each Distribution Date occurring prior to the Accretion
Termination Date for the Class A-14 TAC Component, the Accrual
Distribution Amount for the Class A-14 TAC Component will be allocated
sequentially as follows:
(A) first, to the Class A-13 Certificates, until their Class
Certificate Balance has been reduced to zero; and
(B) second, to the Class A-14 TAC Component, until its
Component Principal Balance has been reduced to zero.
(iii) On each Distribution Date prior to the Senior Credit
Support Depletion Date, the amount distributable to the Class A
Certificates (other than the Class A-PO Certificates) pursuant to Section
5.02(a)(ii) for such Distribution Date, will be distributed in the
following order of priority:
(A) first, to the Class A-R Certificate (from the Upper-Tier
Certificate Account) and the Class A-LR Certificate (from the
Certificate Account), pro rata, until the Class Certificate Balance
thereof has been reduced to zero; and
(B) second, concurrently, as follows:
(i) 53.604788710%, sequentially, as follows:
(1) to the Class A-3 Certificates, up to the Class
A-3 Principal Distribution Amount for such Distribution
Date, until their Class Certificate Balance
has been reduced to zero;
(2) concurrently, 54.2241915992% to the Class A-1
Certificates and 45.7758084008% to the Class A-2
Certificates, until the Class Certificate Balance of the
Class A-1 Certificates has been reduced to zero;
(3) concurrently, 54.2241915992% to the Class A-4
Certificates and 45.7758084008% to the Class A-2
Certificates, until the Class Certificate Balance of the
Class A-4 Certificates has been reduced to zero;
(4) concurrently, 54.2241915992% to the Class A-5
Certificates and 45.7758084008% to the Class A-2
Certificates, until the Class Certificate Balance of the
Class A-5 Certificates has been reduced to zero;
(5) concurrently, 54.2241915992% to the Class A-6
Certificates and 45.7758084008% to the Class A-2
Certificates, until their Class Certificate Balances
have been reduced to zero;
(6) concurrently, 71.4285750486% to the Class A-7
Certificates and 28.5714249514% to the Class A-8
Certificates, until their Class Certificate Balances
have been reduced to zero; and
(7) to the Class A-3 Certificates, without regard
to the Class A-3 Principal Distribution Amount, until
their Class Certificate Balance has been reduced to
zero; and
(ii) 46.3952111290%, concurrently, as follows:
(1) 0.1460562564% to the Class A-9 Certificates,
until their Class Certificate Balance has been reduced
to zero; and
(2) 99.8539437436% sequentially, as follows:
(a) sequentially, to the Class A-11
Certificates, the Class A-12 Certificates and the
Class A-14 PAC Component, in that order, up to
their respective PAC Principal Amounts for such
Distribution Date;
(b) to the TAC Group, up to the TAC
Principal Amount for such Distribution Date;
(c) to the Class A-10 Certificates,
until their Class Certificate Balance has been
reduced to zero;
(d) to the TAC Group, until the Class
Certificate Balance of the Class A-13 Certificates
and the Component Balance of the Class A-14 TAC
Component have been reduced to zero; and
(e) sequentially, to the Class A-11
Certificates, the Class A-12 Certificates and the
Class A-14 PAC Component, in that order, until
their Class Certificate Balances and Component
Balance, respectively, are reduced to zero.
All distributions of principal to the TAC Group will be made
sequentially to the Class A-13 Certificates and the Class A-14 TAC Component, in
that order, until the Class Certificate Balance of the Class A-13 Certificates
and the Component Balance of the Class A-14 TAC Component, respectively, are
reduced to zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth above, the
portion of the Pool Distribution Amount available to be distributed as principal
of the Class A Certificates (other than the Class A-PO Certificates) shall be
distributed concurrently, as principal, on such Classes, pro rata, on the basis
of their respective Class Certificate Balances, until the Class Certificate
Balances thereof are reduced to zero.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Certificates (other than the Class A-14 Certificates) and Accrued
Component Interest for each Component for such Distribution Date shall be
reduced by such Class's or Component's pro rata share, based on such Class's
Interest Distribution Amount or such Component's Component Interest Distribution
Amount for such Distribution Date, without taking into account the allocation
made by this Section 5.02(c), of (A) Non-Supported Interest Shortfalls, (B) any
Excess Losses allocable to interest, (C) on and after the Senior Credit Support
Depletion Date, any other Realized Loss allocable to interest and (D) each
Relief Act Reduction incurred during the calendar month preceding the month of
such Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iv), if with respect to any Class of Subordinate Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Subordinate
Certificates which have a higher numerical Class designation than such Class,
divided by (ii) the aggregate Class Certificate Balance of all the Certificates
(other than the Class A-PO Certificates) immediately prior to such Distribution
Date (the "FRACTIONAL INTEREST") is less than the Original Fractional Interest
for such Class, no distribution of principal will be made to any Classes junior
to such Class (the "RESTRICTED CLASSES") and the Class Certificate Balances of
the Restricted Classes will not be used in determining the Pro Rata Share for
the Subordinate Certificates that are not Restricted Classes. Any funds
remaining will be distributed in the order provided in Section 5.02(a)(iv).
Section 5.03 ALLOCATION OF LOSSES.
(a) On or prior to each Determination Date, each Servicer shall
inform the Trustee in writing with respect to each Mortgage Loan serviced by
such Servicer: (1) whether any Realized Loss is a Deficient Valuation, a Debt
Service Reduction, a Fraud Loss or a Special Hazard Loss, (2) of the amount of
such loss or Deficient Valuation, or of the terms of such Debt Service Reduction
and (3) of the total amount of Realized Losses. Based on such information, the
Trustee shall determine the total amount of Realized Losses, including Excess
Losses, with respect to the related Distribution Date.
The principal portion of Realized Losses with respect to any
Distribution Date shall be allocated as follows:
(i) the applicable PO Percentage of the principal portion of any
Realized Loss with respect to a Discount Mortgage Loan, including any
Excess Loss, shall be allocated to the Class A-PO Certificates until the
Class Certificate Balance thereof is reduced to zero; and
(ii) (1) the applicable Non-PO Percentage of the principal
portion of any Realized Loss (other than an Excess Loss) shall be
allocated first to the Subordinate Certificates in reverse order of their
respective numerical Class designations (beginning with the Class of
Subordinate Certificates then outstanding with the highest numerical Class
designation) until the respective Class Certificate Balance of each such
Class is reduced to zero, and second to the Senior Certificates (other
than the Class A-14 and Class A-PO Certificates), the Class A-14 PAC
Component and the Class A-14 TAC Component, pro rata, on the basis of
their respective Class Certificate Balances or Component Balances
immediately prior to the related Distribution Date or, in the case of the
Class A-10 Certificates and the Class A-14 TAC Component, the Initial
Class Certificate Balance or the Initial Component Balance, if lower,
until the Class Certificate Balances and Component Balances thereof have
been reduced to zero; and
(2) the applicable Non-PO Percentage of the principal
portion of any Excess Losses shall be allocated to the Senior Certificates
(other than the Class A-14 and A-PO Certificates), the Class A-14 PAC
Component, the Class A-14 TAC Component and the Subordinate Certificates
then outstanding, pro rata, on the basis of their respective Class
Certificate Balances or Component Balances immediately prior to the
related Distribution Date or, in the case of the Class A-10 Certificates
and Class A-14 TAC Component, the Initial Class Certificate Balance or
Initial Component Balance, if lower.
(b) The Class Certificate Balance of the Class of Subordinate
Certificates then outstanding with the highest numerical Class designation shall
be reduced on each Distribution Date by the amount, if any, by which the
aggregate of the Class Certificate Balances of all outstanding Classes of
Certificates (after giving effect to the amount to be distributed as a
distribution of principal and the allocation of Realized Losses and Class A-PO
Deferred Amounts on such Distribution Date) exceeds the Adjusted Pool Amount for
such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Certificates in the aggregate (other than the
Class Certificate Balance of the Class A-PO Certificates) shall be reduced on
each Distribution Date by the amount, if any, by which the aggregate of the
Class Certificate Balances of all outstanding Classes of Senior Certificates
(other than Class A-PO Certificates) (after giving effect to the amount to be
distributed as a distribution of principal and the allocation of Realized Losses
on such Distribution Date) exceeds the difference between (i) the Adjusted Pool
Amount for such Distribution Date and (ii) the Adjusted Pool Amount (PO Portion)
for such Distribution Date.
Any such reduction shall be allocated among the Senior Certificates
(other than the Class A-14 and Class A-PO Certificates), the Class A-14 PAC
Component and the Class A-14 TAC Component based on the Class Certificate
Balances or Component Balances immediately prior to such Distribution Date or,
in the case of the Class A-10 Certificates and Class A-14 TAC Component, the
Initial Class Certificate Balance or Initial Component Balance, if lower.
After the Senior Credit Support Depletion Date, the Class
Certificate Balance of the Class A-PO Certificates shall be reduced on each
Distribution Date by the amount, if any, by which the Class Certificate Balance
of the Class A-PO Certificates (after giving effect to the amount to be
distributed as a distribution of principal and the allocation of Realized Losses
on such Distribution Date) exceeds the Adjusted Pool Amount (PO Portion) for
such Distribution Date.
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Certificate Balance of a Class of Certificates pursuant
to Section 5.03(b) above shall be allocated among the Certificates of such Class
in proportion to their respective Percentage Interests.
(d) Any allocation of Realized Losses to a Class of Certificates or
any reduction in the Class Certificate Balance of a Class pursuant to Section
5.03(b) above shall be accomplished by reducing the Class Certificate Balance
thereof prior to the distributions made on the related Distribution Date in
accordance with the definition of "Class Certificate Balance."
(e) With respect to any Distribution Date, Realized Losses allocated
pursuant to this Section 5.03 will be allocated to each Uncertificated
Lower-Tier Interest in an amount equal to the amount allocated to its respective
Corresponding Upper-Tier Class, Classes, Component or Components as provided
above.
(f) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class A-9 Loss Allocation Amount is greater than
zero, the Class Certificate Balance of the Class A-9 Certificates will be
reduced by the Class A-9 Loss Allocation Amount and, notwithstanding Section
5.03(a)(ii)(1) and Section 5.03(b), the Component Balances of the Class A-14 PAC
Component and the Class A-14 TAC Component will not be reduced by such
Component's pro rata share, based on the Class A-14 PAC Component Loss Amount
and the Class A-14 TAC Component Loss Amount, of the Class A-9 Loss Allocation
Amount.
Section 5.04 STATEMENTS TO CERTIFICATEHOLDERS.
(a) Prior to the Distribution Date in each month, based upon the
information provided to the Trustee on the Servicer's Certificates delivered to
the Trustee pursuant to Section 4.01, the Trustee shall determine the following
information with respect to such Distribution Date:
(i) the amount allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds
included therein;
(ii) the amount allocable to interest, the Accrual Distribution
Amount with respect to the Class A-10 Certificates, the Accrual
Distribution Amount with respect to the Class A-14 TAC Component, any
Class Unpaid Interest Shortfall included in such distribution and any
remaining Class Unpaid Interest Shortfall after giving effect to such
distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following
Distribution Date;
(vi) the Senior Percentage, the Class A-3 Percentage and
Subordinate Percentage for the following Distribution Date;
(vii) the amount of the Servicing Fees paid to or retained by the
Servicers with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Periodic Advances included in the distribution
on such Distribution Date and the aggregate amount of Periodic Advances
outstanding as of the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans
(A) delinquent (exclusive of Mortgage Loans in foreclosure) (1) 1 to 30
days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more days and (B)
in foreclosure, as of the close of business on the last day of the
calendar month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, 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;
(xii) the total number and principal balance of any REO
Properties (and market value, if available) as of the close of business on
the Determination Date preceding such Distribution Date;
(xiii) the Senior Prepayment Percentage and the Subordinate
Prepayment Percentage for the following Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month and any Class A-PO Deferred Amounts for such
Distribution Date; and
(xv) the Special Hazard Loss Amount, the Fraud Loss Amount and
the Bankruptcy Loss Amount, in each case as of the related Determination
Date.
(b) No later than each Distribution Date, the Trustee, based upon
information supplied to it on the Servicer's Certificates, shall prepare and
deliver (by mail, fax or electronically) to each Holder of a Certificate, each
Rating Agency and each Servicer a statement setting forth the information set
forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i), (ii)
and (ix) of Section 5.04(a), the amounts shall be expressed as a dollar amount
per Certificate with a $1,000 denomination or notional amount.
On each Distribution Date, the Trustee shall prepare and furnish to
each Financial Market Service, in electronic or such other format and media
mutually agreed upon by the Trustee, the Financial Market Service and the
Depositor, the information contained in the statement described in Section
5.04(a) for such Distribution Date.
The Trustee may make available each month, to any interested party,
the monthly statement to Certificateholders via the Trustee's website.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was the Holder of a Certificate, if requested in writing by such
Person, a statement containing the information set forth in clauses (i), (ii)
and (vii) of Section 5.04(a), in each case 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 force.
The Trustee shall deliver to the Holders of Certificates any reports
or information the Trustee is required by this Agreement or the Code, Treasury
Regulations or REMIC Provisions to deliver to the Holders of Certificates, and
the Trustee shall prepare and provide to the Certificateholders (by mail,
telephone, or publication as may be permitted by applicable Treasury
Regulations) such other reasonable information as the Trustee deems necessary or
appropriate or is required by the Code, Treasury Regulations, and the REMIC
Provisions including, but not limited to, (i) information to be reported to the
Holders of the Residual Certificates for quarterly notices on Schedule Q (Form
1066) (which information shall be forwarded to the Holders of the Residual
Certificates by the Trustee), (ii) information to be provided to the Holders of
Certificates with respect to amounts which should be included as interest and
original issue discount in such Holders' gross income and (iii) information to
be provided to all Holders of Certificates setting forth the percentage of each
REMIC's assets, determined in accordance with Treasury Regulations using a
convention, not inconsistent with Treasury Regulations, selected by the Trustee
in its absolute discretion, that constitute real estate assets under Section 856
of the Code, and assets described in Section 7701(a)(19)(C) of the Code;
provided, however, that in setting forth the percentage of such assets of each
REMIC, nothing contained in this Agreement, including without limitation Section
7.03 hereof, shall be interpreted to require the Trustee periodically to
appraise the fair market values of the assets of the Trust Estate or to
indemnify the Trust Estate or any Certificateholders from any adverse federal,
state or local tax consequences associated with a change subsequently required
to be made in the Depositor's initial good faith determinations of such fair
market values (if subsequent determinations are required pursuant to the REMIC
Provisions) made from time to time.
Section 5.05 TAX RETURNS AND REPORTS TO CERTIFICATEHOLDERS.
(a) For federal income tax purposes, the Upper-Tier REMIC and the
Lower-Tier REMIC shall each have a calendar year taxable year and shall maintain
their books on the accrual method of accounting.
(b) The Trustee shall prepare or cause to be prepared, shall execute
and shall file or cause to be filed with the Internal Revenue Service and
applicable state or local tax authorities income tax information returns for
each taxable year with respect to each REMIC containing such information at the
times and in the manner as may be required by the Code, the Treasury Regulations
or state or local tax laws, regulations, or rules, and shall furnish or cause to
be furnished to each REMIC and the Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby.
Within 30 days of the Closing Date, the Trustee shall furnish or cause to be
furnished to the Internal Revenue Service, on Form 8811 or as otherwise required
by the Code or the Treasury Regulations, the name, title, address and telephone
number of the person that Holders of the Certificates may contact for tax
information relating thereto, together with such additional information at the
time or times and in the manner required by the Code or the Treasury
Regulations. Such federal, state, or local income tax or information returns
shall be signed by the Trustee, or such other Person as may be required to sign
such returns by the Code, the Treasury Regulations or state or local tax laws,
regulations, or rules.
(c) In the first federal income tax return of each REMIC for its
short taxable year ending December 31, 1999, REMIC status shall be elected for
such taxable year and all succeeding taxable years.
(d) The Trustee will maintain or cause to be maintained such records
relating to each REMIC, including but not limited to records relating to the
income, expenses, assets and liabilities of the Trust Estate, and the initial
fair market value and adjusted basis of the Trust Estate property and assets
determined at such intervals as may be required by the Code or the Treasury
Regulations, as may be necessary to prepare the foregoing returns, schedules,
statements or information.
Section 5.06 TAX MATTERS PERSON. The Tax Matters Person shall have
the same duties with respect to each REMIC as those of a "tax matters partner"
under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder of the
Class A-R Certificate is hereby designated as the Tax Matters Person for the
Upper-Tier REMIC. The Holder of the Class A-LR Certificate is hereby designated
as the Tax Matters Person for the Lower-Tier REMIC. By their acceptance of the
Class A-R or Class A-LR Certificate, as applicable, each such Holder irrevocably
appoints the Trustee as its agent to perform all of the duties of the Tax
Matters Person for the Upper-Tier REMIC and the Lower-Tier REMIC.
Section 5.07 RIGHTS OF THE TAX MATTERS PERSON IN RESPECT OF THE
TRUSTEE. The Trustee shall afford the Tax Matters Person, upon reasonable notice
during normal business hours, access to all records maintained by the Trustee in
respect of its duties hereunder and access to officers of the Trustee
responsible for performing such duties. Upon request, the Trustee shall furnish
the Tax Matters Person with its most recent report of condition published
pursuant to law or to the requirements of its supervisory or examining authority
publicly available. The Trustee shall make available to the Tax Matters Person
such books, documents or records relating to the Trustee's services hereunder as
the Tax Matters Person shall reasonably request. The Tax Matters Person shall
not have any responsibility or liability for any action or failure to act by the
Trustee and is not obligated to supervise the performance of the Trustee under
this Agreement or otherwise.
Section 5.08 REMIC RELATED COVENANTS. For as long as the Trust shall
exist, the Trustee, the Depositor and each Servicer shall act in accordance
herewith to assure continuing treatment of the Upper-Tier REMIC and the
Lower-Tier REMIC as REMICs and avoid the imposition of tax on either REMIC. In
particular:
(a) The Trustee shall not create, or permit the creation of, any
"interests" in either REMIC within the meaning of Code Section 860D(a)(2) other
than the interests represented by the Regular Certificates, the Residual
Certificates and the Uncertificated Lower-Tier Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and
the Servicers shall not contribute to the Trust Estate and the Trustee shall not
accept property unless substantially all of the property held in each REMIC
constitutes either "qualified mortgages" or "permitted investments" as defined
in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property shall be
contributed to either REMIC after the start-up day unless such contribution
would not subject the Trust Estate to the 100% tax on contributions to a REMIC
after the start-up day of the REMIC imposed by Code Section 860G(d).
(c) The Trustee shall not accept on behalf of either REMIC any fee
or other compensation for services and neither the Trustee nor the Servicers
shall knowingly accept, on behalf of the Trust Estate any income from assets
other than those permitted to be held by a REMIC.
(d) The Trustee shall not sell or permit the sale of all or any
portion of the Mortgage Loans (other than in accordance with Sections 2.02, 2.05
or 3.14(b)), unless such sale is pursuant to a "qualified liquidation" as
defined in Code Section 860F(a)(4)(A) and in accordance with Article X.
(e) The Trustee shall maintain books with respect to the Trust on a
calendar year taxable year and on an accrual basis.
None of the Servicers or the Trustee shall engage in a "prohibited
transaction" (as defined in Code Section 860F(a)(2)), except that, with the
prior written consent of each Servicer and the Depositor, the Trustee may engage
in the activities otherwise prohibited by the foregoing paragraphs (b), (c) and
(d); provided that each Servicer (or the two Servicers, acting together) shall
have delivered to the Trustee an Opinion of Counsel to the effect that such
transaction will not result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC and will not disqualify either REMIC from
treatment as a REMIC; and, provided further, that the Servicers shall have
demonstrated to the satisfaction of the Trustee that such action will not
adversely affect the rights of the Holders of the Certificates and the Trustee
and that such action will not adversely impact the rating of the Certificates.
ARTICLE VI
THE CERTIFICATES
Section 6.01 THE CERTIFICATES. The Classes of Senior Certificates
and the Subordinate Certificates shall be substantially in the forms set forth
in Exhibits A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8, A-9, A-10, A-11, A-12, A-13,
A-14, A-PO, A-R, A-LR, B-1, B-2, B-3, B-4, B-5, B-6 and C (reverse of all
Certificates) and shall, on original issue, be executed by the Trustee and shall
be countersigned and delivered by the Trustee to or upon the order of the
Depositor upon receipt by the Trustee of the documents specified in Section
2.01. The Senior Certificates (other than the Class A-PO, Class A-R and Class
A-LR Certificates) shall be available to investors in interests representing
minimum dollar Certificate Balances (or notional amounts) of $1,000 and integral
multiples of $1 in excess thereof. The Subordinate Certificates and the Class
A-PO Certificates shall be available to investors in interests representing
minimum dollar Certificate Balances of $25,000 and integral dollar multiples of
$1 in excess thereof (except one Certificate of such Class may be issued with a
different Certificate Balance or notional amount). The Class A-R and Class A-LR
Certificates shall each be in a minimum denomination of $100. The Senior
Certificates (other than the Class A-R and Class A-LR Certificates) and the
Class B-1, Class B-2 and Class B-3 Certificates shall initially be issued in
book-entry form through the Depository and all other Classes of Certificates
shall initially be issued in definitive, fully-registered form.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer or signatory. 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 execution and delivery of such
Certificates or did not hold such offices or positions at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless such Certificate shall have been
manually countersigned by the Trustee substantially in the form provided for
herein, and such countersignature 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 countersignature.
Section 6.02 REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES.
(a) The Trustee shall cause to be kept at an office or agency in the
city in which the Corporate Trust Office of the Trustee is located a Certificate
Register in which, subject 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. The Trustee shall initially
serve as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute and the Trustee shall
authenticate, countersign and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall (if so required by the
Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied by
a written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or its attorney duly
authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the name
of the Depository or its nominee and at all times: (A) registration of the
Certificates may not be transferred by the Trustee except to another
Depository; (B) the Depository shall maintain book-entry records with
respect to the Certificate Owners and with respect to ownership and
transfers of such Book-Entry Certificates; (C) ownership and transfers of
registration of the Book-Entry Certificates on the books of the Depository
shall be governed by applicable rules established by the Depository; (D)
the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (E) the Trustee shall deal with
the Depository as the representative of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of Holders
under this Agreement, and requests and directions for and votes of the
Depository shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (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 furnished by
the Depository Participants with respect to indirect participating firms
and persons shown on the books of such indirect participating firms as
direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If (A) (1) the Depository or the Depositor advises the Trustee
in writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and (2) the Trustee or the
Depositor is unable to locate a qualified successor, (B) the Depositor at
its option advises the Trustee in writing that it elects to terminate the
book-entry system through the Depository or (C) after the occurrence of an
Event of Default, Certificate Owners representing at least 51% of the
aggregate Class Certificate Balances of the Book-Entry Certificates
together advise the Trustee and the Depository through the Depository
Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the
Certificate Owners, the Trustee shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of definitive, fully-registered Certificates (the "DEFINITIVE
CERTIFICATES") to Certificate Owners requesting the same. Upon surrender
to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Servicers,
the Depositor or the Trustee shall be liable for any delay in delivery of
such instruction and may conclusively rely on, and shall be protected in
relying on, such instructions. The Depositor shall provide the Trustee
with an adequate inventory of certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates, the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) No transfer of a Private Certificate shall be made unless such
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
such laws. In the event of any such transfer, (i) unless such transfer is made
in reliance on Rule 144A under the 1933 Act, the Trustee or the Depositor may
require a written Opinion of Counsel (which may be in-house counsel) acceptable
to and in form and substance reasonably satisfactory to the Trustee and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Trustee or the Depositor and (ii) the
Trustee shall require a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached hereto as EXHIBIT G-1
and a certificate from such Certificateholder's prospective transferee
substantially in the form attached hereto either as EXHIBIT G-2A or as EXHIBIT
G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, either Seller, their affiliates or both. The Depositor shall provide
to any Holder of a Private Certificate and any prospective transferees
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 1933 Act pursuant
to the registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor 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.
(e) No transfer of an ERISA Restricted Certificate shall be made
unless the transferee delivers to the Trustee either (i) a representation letter
in the form of EXHIBIT H from the transferee of such Certificate, which
representation letter shall not be an expense of the Depositor, the Trustee or
either Servicer, or (ii) in the case of any ERISA Restricted Certificate
presented for registration in the name of an employee benefit plan or
arrangement, including an individual retirement account, subject to ERISA, the
Code, or any federal, state or local law ("SIMILAR LAW") which is similar to
ERISA or the Code (collectively, a "PLAN"), or a trustee or custodian of any of
the foregoing, an Opinion of Counsel in form and substance satisfactory to the
Trustee and each Servicer to the effect that the purchase or holding of such
ERISA Restricted Certificate by or on behalf of such Plan will not result in the
assets of the Trust Estate being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA, the Code or Similar Law and will not
subject the Trustee, the Depositor or either Servicer to any obligation in
addition to those undertaken in this Agreement, which Opinion of Counsel shall
not be an expense of the Trustee or either Servicer. Any transferee of an ERISA
Restricted Certificate that does not comply with either clause (i) or (ii) of
the preceding sentence will be deemed to have made one of the representations
set forth in EXHIBIT H. Notwithstanding anything else to the contrary herein,
any purported transfer of an ERISA Restricted Certificate to or on behalf of a
Plan without the delivery to the Trustee and each Servicer of an Opinion of
Counsel satisfactory to the Trustee and each Servicer as described above shall
be void and of no effect.
Neither the Trustee nor the Certificate Registrar shall have any
liability for transfers of Book-Entry Certificates made through the book-entry
facilities of the Depository or between or among any Depository Participants or
Certificate Owners, made in violation of applicable restrictions. The Trustee
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and Persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
To the extent permitted under applicable law (including, but not
limited to, ERISA), 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 6.02 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.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require delivery to
it, in form and substance satisfactory to it, of an affidavit in the form
of EXHIBIT I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Trustee has actual knowledge that the proposed transferee is not a
Permitted Transferee, no Transfer of any Ownership Interest in a Residual
Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be
purchased by or transferred to any Person that is not a U.S. Person,
unless (A) such Person holds such Residual Certificate in connection with
the conduct of a trade or business within the United States and furnishes
the transferor and the Trustee with an effective Internal Revenue Service
Form 4224 or (B) the transferee delivers to both the transferor and the
Trustee an Opinion of Counsel from a nationally-recognized tax counsel to
the effect that such transfer is in accordance with the requirements of
the Code and the regulations promulgated thereunder and that such transfer
of a Residual Certificate will not be disregarded for federal income tax
purposes.
(vi) Any attempted or purported transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of this
Section 6.02 shall be absolutely null and void and shall vest no rights in
the purported transferee. If any purported transferee shall, in violation
of the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by this
Section 6.02 or for making any distributions due on such Residual
Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of the Agreement so long as the
transfer was registered in accordance with this Section 6.02. The Trustee
shall be entitled to recover from any Holder of a Residual Certificate
that was in fact not a Permitted Transferee at the time such distributions
were made all distributions made on such Residual Certificate. Any such
distributions so recovered by the Trustee shall be distributed and
delivered by the Trustee to the prior Holder of such Residual Certificate
that is a Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Trustee, based on information
provided to the Trustee by either Servicer, will provide to the Internal
Revenue Service, and to the Persons specified in Section 860E(e)(3) and
(6) of the Code, information needed to compute the tax imposed under
Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations. The expenses of the Trustee under this clause
(vii) shall be reimbursable by the Trust.
(g) [Reserved]
(h) No service charge shall be imposed for any transfer or exchange
of Certificates of any Class, but the Trustee may require 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.
(i) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 6.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If
(a) any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Trustee, the
Depositor and the Certificate Registrar such security or indemnity reasonably
satisfactory to each, to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall countersign and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor, Class and Percentage
Interest but bearing a number not contemporaneously outstanding. Upon the
issuance of any new Certificate under this Section, 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 and the Certificate Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section 6.04 PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Servicers, the
Trustee, the Certificate Registrar and any agent of the Depositor, the
Servicers, the Trustee or the Certificate Registrar may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 5.01 and for all
other purposes whatsoever, and none of the Depositor, the Servicers, the
Trustee, the Certificate Registrar or any agent of the Servicers, the Trustee or
the Certificate Registrar shall be affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE SERVICERS
Section 7.01 RESPECTIVE LIABILITIES OF THE DEPOSITOR AND THE
SERVICERS. The Depositor and the Servicers shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Depositor and the Servicers herein. By way of
illustration and not limitation, the Depositor is not liable for the servicing
and administration of the Mortgage Loans, nor is it obligated by Section 8.01 to
assume any obligations of either Servicer or to appoint a designee to assume
such obligations, nor is it liable for any other obligation hereunder that it
may, but is not obligated to, assume unless it elects to assume such obligation
in accordance herewith.
Section 7.02 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR A SERVICER.
The Depositor and each Servicer will each keep in full effect its existence,
rights and franchises as a separate entity under the laws governing its
organization, 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,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
Any Person into which the Depositor or either Servicer may be merged
or consolidated, or any corporation resulting from any merger or consolidation
to which the Depositor or either Servicer shall be a party, or any Person
succeeding to the business of the Depositor or either Servicer, shall be the
successor of the Depositor or such Servicer, 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, however, that the successor or surviving Person to a Servicer shall be
qualified to service mortgage loans on behalf of FNMA or FHLMC.
Section 7.03 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE SERVICERS
AND OTHERS. None of the Depositor, the Servicers or any of the directors,
officers, employees or agents of the Depositor or of either Servicer shall be
under any liability to the Trust Estate 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, however, that this
provision shall not protect the Depositor, the Servicers or any such Person
against any breach of warranties or representations made herein or any liability
which would otherwise be imposed by reason 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 Servicers and any
director, officer, employee or agent of the Depositor or either 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 Servicers and any director, officer, employee or agent of the Depositor or
either Servicer shall be indemnified by the Trust Estate and held harmless
against any loss, liability or expense incurred in connection with 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 or either of the Servicers shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability; provided, however, that the
Depositor or either Servicer may in its discretion undertake any such action
which it may deem necessary or desirable in respect to this Agreement and the
rights and duties of the parties hereto and the interests of 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 Estate, and the Depositor and such Servicer shall be
entitled to be reimbursed therefor out of amounts attributable to the Mortgage
Loans on deposit in the related Servicer Custodial Account as provided by
Section 3.11.
Section 7.04 DEPOSITOR AND SERVICERS NOT TO RESIGN. Subject to the
provisions of Section 7.02, none of the Depositor or the Servicers shall resign
from its respective 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
Depositor or either Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation by a Servicer shall become
effective until the Trustee or a successor servicer shall have assumed such
Servicer's responsibilities and obligations in accordance with Section 8.05
hereof.
ARTICLE VIII
DEFAULT
Section 8.01 EVENTS OF DEFAULT. If any one of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) any failure by either Servicer to deposit amounts in the related
Servicer Custodial Account in the amount and manner provided herein so as to
enable the Trustee to distribute to Holders of Certificates any payment required
to be made under the terms of such Certificates and this Agreement (other than
the payments required to be made under Section 3.20) which continues unremedied
for a period of five days; or
(b) failure on the part of either Servicer duly to observe or
perform in any material respect any other covenants or agreements of such
Servicer set forth in the Certificates or in this Agreement, which covenants and
agreements continue unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to such Servicer by the Trustee or the Depositor, or to the
Servicers, the Depositor and the Trustee by the Holders of Certificates
evidencing Voting Rights aggregating not less than 25% of all Certificates
affected thereby; or
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against either
Servicer, or for the winding up or liquidation of either Servicer's affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(d) the consent by either Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
such Servicer or of or relating to substantially all of its property; or either
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(e) the failure of either Servicer to remit any Periodic Advance
required to be remitted by such Servicer pursuant to Section 3.20 which failure
continues unremedied at 3:00 p.m. on the related Distribution Date;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied by the related Servicer, either the Trustee or the Depositor
may, and at the direction of the Holders of Certificates evidencing Voting
Rights aggregating not less than 51% of all Certificates affected thereby shall,
by notice then given in writing to the related Servicer (and to the Trustee, if
given by the Depositor, and to the Depositor, if given by the Trustee),
terminate all of the rights and obligations of such Servicer under this
Agreement. If an Event of Default described in clause (e) hereof shall occur,
the Trustee shall, by notice to the related Servicer, terminate all of the
rights and obligations of such Servicer under this Agreement and in and to the
Mortgage Loans and proceeds thereof and the Trustee or a successor Servicer
appointed pursuant to Section 8.05 shall make the Advance which such Servicer
failed to make. On or after the receipt by a Servicer of such written notice,
all authority and power of such Servicer under this Agreement, whether with
respect to the Certificates or the Mortgage Loans or otherwise, shall pass to
and be vested in the Trustee pursuant to and under this Section 8.01, unless and
until such time as the Trustee shall appoint a successor Servicer pursuant to
Section 8.05, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of each 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 of the Mortgage Loans and related documents, or otherwise,
including, without limitation, the recordation of the assignments of the
Mortgage Loans to it. Each Servicer agrees to cooperate with the Trustee in
effecting the termination of the responsibilities and rights of such Servicer
hereunder, including, without limitation, the transfer to the Trustee for the
administration by it of all cash amounts that have been deposited by such
Servicer in the related Servicer Custodial Account or thereafter received by
such Servicer with respect to the Mortgage Loans. Upon obtaining notice or
knowledge of the occurrence of any Event of Default, the Person obtaining such
notice or knowledge shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency. All costs and expenses (including attorneys'
fees) incurred in connection with transferring the Mortgage Files to the
successor Servicer and amending this Agreement to reflect such succession as
Servicer pursuant to this Section 8.01 shall be paid by the predecessor
Servicer. Notwithstanding the termination of a Servicer pursuant hereto, such
Servicer shall remain liable for any causes of action arising out of any Event
of Default occurring prior to such termination.
Section 8.02 REMEDIES OF TRUSTEE. During the continuance of any
Event of Default, so long as such Event of Default shall not have been remedied,
the Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 8.03 DIRECTIONS BY CERTIFICATEHOLDERS AND DUTIES OF TRUSTEE
DURING EVENT OF DEFAULT. During the continuance of any Event of Default, Holders
of Certificates evidencing Voting Rights aggregating not less than 25% of each
Class of Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (a) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto, and (b) the
terminating of either Servicer or any successor Servicer from its rights and
duties as servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby and, provided further,
that, subject to the provisions of Section 9.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the non-assenting Certificateholders.
Section 8.04 ACTION UPON CERTAIN FAILURES OF A SERVICER AND UPON
EVENT OF DEFAULT. In the event that the Trustee shall have actual knowledge of
any failure of either Servicer specified in Section 8.01(a) or (b) which would
become an Event of Default upon such Servicer's failure to remedy the same after
notice, the Trustee shall give notice thereof to such Servicer. If the Trustee
shall have knowledge of an Event of Default, the Trustee shall give prompt
written notice thereof to the Certificateholders.
Section 8.05 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time a Servicer receives a notice of
termination pursuant to Section 8.01, the Trustee shall be the successor in all
respects to such 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 such
Servicer by the terms and provisions hereof or shall appoint a successor
pursuant to Section 3.07. Notwithstanding anything provided herein to the
contrary, under no circumstances shall any provision of this Agreement be
construed to require the Trustee, acting in its capacity as successor to a
Servicer in its obligation to make Advances, to advance, expend or risk its own
funds or otherwise incur any financial liability in the performance of its
duties hereunder if it shall have reasonable grounds for believing that such
funds are non-recoverable. Subject to Section 8.05(b), as compensation therefor,
the Trustee shall be entitled to such compensation as the terminated Servicer
would have been entitled to hereunder if no such notice of termination had been
given. Notwithstanding the above, the Trustee may, if it shall be unwilling so
to act, or shall, if it is legally unable so to act, appoint, or petition a
court of competent jurisdiction to appoint, any established housing and home
finance institution having a net worth of not less than $10,000,000 as the
successor to the terminated Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of such Servicer hereunder;
provided, however, that any such institution appointed as successor Servicer
shall not, as evidenced in writing by each Rating Agency, adversely affect the
then current rating of any Class of Certificates immediately prior to the
termination of the terminated Servicer. The appointment of a successor Servicer
shall not affect any liability of the predecessor Servicer which may have arisen
under this Agreement prior to its termination as Servicer, nor shall any
successor Servicer be liable for any acts or omissions of the predecessor
Servicer or for any breach by such Servicer of any of its representations or
warranties contained herein or in any related document or agreement. Pending
appointment of a successor to the terminated Servicer hereunder, unless the
Trustee is prohibited by law from so acting, the Trustee shall act in such
capacity as provided above. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession.
(b) In connection with the appointment of a successor Servicer or
the assumption of the duties of a Servicer, as specified in Section 8.05(a), the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans serviced by the predecessor Servicer as it and such
successor shall agree; provided, however, that any Person assuming the duties of
a Servicer as successor to NationsBanc Mortgage Corporation or Bank of America,
FSB shall pay to such predecessor an amount equal to the market value of the
portion of the Servicing Fee that will accrue in the future due to the Servicing
Fee Rate exceeding 0.25% per annum with respect to any Mortgage Loan. The
"market value" of such portion of the Servicing Fee shall be determined by
NationsBanc Mortgage Corporation or Bank of America, FSB, as applicable, on the
basis of at least two quotations from third parties actively engaged in the
servicing of single-family mortgage loans. If the successor Servicer does not
agree that such market value is a fair price, such successor shall obtain two
quotations of market value from third parties actively engaged in the servicing
of single-family mortgage loans. The market value of the excess portion of the
Servicing Fee will then be equal to the average of (i) the lowest figure
obtained by NationsBanc Mortgage Corporation or Bank of America, FSB, as
applicable, and (ii) the highest figure obtained by the successor Servicer.
Payment of the amount calculated above shall be made to NationsBanc Mortgage
Corporation or Bank of America, FSB, as applicable, by the successor Servicer no
later than the last Business Day of the month in which such successor Servicer
becomes entitled to receive the Servicing Fee under this Agreement. In no event
will any portion of the Trust Estate be used to pay amounts due to NationsBanc
Mortgage Corporation or Bank of America, FSB, as applicable, under this Section
8.05(b).
(c) Any successor, including the Trustee, to a Servicer as servicer
shall during the term of its service as servicer maintain in force (i) a policy
or policies of insurance covering errors and omissions in the performance of its
obligations as servicer hereunder and (ii) a fidelity bond in respect of its
officers, employees and agents to the same extent as each Servicer is so
required pursuant to Section 3.03.
Section 8.06 NOTIFICATION TO CERTIFICATEHOLDERS. Upon any
termination or appointment of a successor to a Servicer pursuant to this Article
VIII, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to each
Rating Agency.
ARTICLE IX
THE TRUSTEE
Section 9.01 DUTIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred of which a
Responsible Officer of the Trustee shall have actual knowledge (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
their exercise as a reasonably prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misfeasance; provided, however,
that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which 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
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, in
the absence of bad faith on the part of the Trustee, 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 by the Depositor or the Servicers and which on
their face, do not contradict the requirements of this Agreement;
(ii) The Trustee (in its individual capacity) shall not be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) The Trustee (in its individual capacity) shall not be
personally liable with respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with the direction of
Certificateholders as provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any
default (other than a default in payment to the Trustee) specified in
clauses (a) and (b) of Section 8.01 or an Event of Default under clauses
(c), (d) and (e) of Section 8.01 unless a Responsible Officer of the
Trustee assigned to and working in the Corporate Trust Office obtains
actual knowledge of such failure or event or any officer of the Trustee
receives written notice of such failure or event at its Corporate Trust
Office from a Servicer, the Depositor or any Certificateholder; and
(v)Except to the extent provided in Section 8.05, no provision in
this Agreement shall require the Trustee to expend or risk its own funds
(including, without limitation, the making of any Advance as successor
Servicer) or otherwise incur any personal financial liability in the
performance of any of its duties as Trustee hereunder, or in the exercise
of any of its rights or powers, if the Trustee shall have reasonable
grounds for believing that repayment of funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Section 9.02 CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 9.01:
(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 be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (which has not been
cured or waived), to exercise such of the rights and powers vested in it
by this Agreement, and to use the same degree of care and skill in their
exercise as a prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default which 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 or Certificate or any Class evidencing, as to such Class,
Percentage Interests, aggregating not less than 50%; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability or payment of such estimated expenses as a condition to so
proceeding; and
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys.
Section 9.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS.
The recitals contained herein and in the Certificates (other than the execution
of, and the counter-signature on the Certificates) shall be taken as the
statements of the Depositor or Servicers, as applicable, 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 the Certificates or any
Mortgage Loans save that the Trustee represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject, as to
enforcement of remedies, to applicable insolvency, receivership, moratorium and
other laws affecting the rights of creditors generally, and to general
principles of equity and the discretion of the court (regardless of whether
enforcement of such remedies is considered in a proceeding in equity or at law).
The Trustee shall not be accountable for the use or application by the Depositor
of funds paid to the Depositor in consideration of the assignment of the
Mortgage Loans hereunder by the Depositor, or for the use or application of any
funds paid to Subservicers or the Servicers in respect of the Mortgage Loans or
deposited into the Servicer Custodial Accounts, or any other account hereunder
(other than the Certificate Account) by a Servicer.
The Trustee shall at no time have any responsibility or liability
for or with respect to the legality, validity and enforceability of any Mortgage
or any Mortgage Loan, or the perfection and priority of any Mortgage or the
maintenance of any such perfection and priority or for or with respect to the
sufficiency of the Trust or its ability to generate the payments to be
distributed to Certificateholders under this Agreement, including, without
limitation: the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon (other than if
the Trustee shall assume the duties of a Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the successor Servicer); the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of a Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the Trustee as successor Servicer); the compliance by the Depositor
or the Servicers with any warranty or representation made under this Agreement
or in any related document or the accuracy of any such warranty or
representation; any investment of monies by or at the direction of a Servicer or
any loss resulting therefrom, it being understood that the Trustee shall remain
responsible for any Trust property that it may hold in its individual capacity;
the acts or omissions of any of the Depositor, the Servicers (other than if the
Trustee shall assume the duties of a Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee as successor Servicer),
any Subservicer or any Mortgagor; any action of a Servicer (other than if the
Trustee shall assume the duties of a Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the Trustee as successor Servicer)
or any Subservicer taken in the name of the Trustee; the failure of a Servicer
or any Subservicer to act or perform any duties required of it as agent of the
Trustee hereunder; or any action by the Trustee taken at the instruction of a
Servicer (other than if the Trustee shall assume the duties of a Servicer
pursuant to Section 8.05 and thereupon only for the acts or omissions of the
Trustee as successor Servicer); provided, however, that the foregoing shall not
relieve the Trustee of its obligation to perform its duties under this
Agreement, including, without limitation, the Trustee's review of the Mortgage
Files pursuant to Section 2.02. The Trustee shall file any financing or
continuation statement in any public office at any time required to maintain the
perfection of any security interest or lien granted to it hereunder.
Section 9.04 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 it would have if it were not Trustee and may otherwise deal
with the Servicers, any Subservicer or any of their respective affiliates with
the same right it would have if it were not the Trustee.
Section 9.05 ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee
hereunder shall at all times be (a) an institution the deposits of which are
fully insured by the FDIC and (b) a corporation or banking association organized
and doing business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority and (c) with respect to
every successor trustee hereunder either an institution (i) the long-term
unsecured debt obligations of which are rated at least "A" by S&P and "A" by
Fitch or (ii) whose serving as Trustee hereunder would not result in the
lowering of the ratings originally assigned to any Class of Certificates. The
Trustee shall not be an affiliate of the Depositor or either Servicer. If such
corporation or banking 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 9.05, the combined
capital and surplus of such corporation or banking association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provision of this Section 9.05, the Trustee
shall resign immediately in the manner and with the effect specified in Section
9.06.
Section 9.06 RESIGNATION AND REMOVAL OF TRUSTEE. The Trustee may at
any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Servicers and mailing a copy of such notice to all
Holders of record. The Trustee shall also mail a copy of such notice of
resignation to each Rating Agency. Upon receiving such notice of resignation,
the Servicers shall use their best efforts to promptly appoint a mutually
acceptable successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.05 and shall fail to resign after written
request therefor by the Servicers, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Servicers
may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor.
The Holders of Certificates evidencing not less than 50% of the
Voting Rights may at any time remove the Trustee by written instrument or
instruments delivered to the Servicers and the Trustee; the Servicers shall
thereupon use their best efforts to appoint a mutually acceptable successor
Trustee in accordance with this Section 9.06.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 9.06 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 9.07.
Section 9.07 SUCCESSOR TRUSTEE. Any successor Trustee appointed as
provided in Section 9.06 shall execute, acknowledge and deliver to the Servicers
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein. The predecessor Trustee shall duly assign, transfer,
deliver and pay over to the successor Trustee the whole of the Mortgage Files
and related documents and statements held by it hereunder, together with all
instruments of transfer and assignment or other documents properly executed as
may be reasonably required to effect such transfer and such of the records or
copies thereof maintained by the predecessor Trustee in the administration
hereof as may be reasonably requested by the successor Trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement; provided, however, that if the predecessor Trustee has been
terminated pursuant to the third paragraph of Section 9.06, all reasonable
expenses of the predecessor Trustee incurred in complying with this Section 9.07
shall be reimbursed by the Trust.
No successor Trustee shall accept appointment as provided in this
Section 9.07 unless at the time of such appointment such successor Trustee shall
be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.07, the Servicers shall cooperate to mail notice of the
succession of such Trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to each Rating Agency. If the
Servicers fail 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 Servicers.
Section 9.08 MERGER OR CONSOLIDATION OF TRUSTEE. Any corporation or
banking association into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation or banking association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or banking association succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, if such corporation or banking association
is eligible under the provisions of Section 9.05, 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.
Section 9.09 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any of the provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the related
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 as co-trustee or separate trustee of all or any part of the Trust
Estate, and to vest in such Person or Persons, in such capacity, such title to
the Trust Estate, or any part thereof, and, subject to the other provision of
this Section 9.09, such powers, duties, obligations, rights and trusts as such
Servicer and the Trustee may consider necessary or desirable. If a Servicer
shall not have joined in such appointment within ten days after the receipt by
it of a request to do so, 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 9.05 and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 9.07.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.09, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, 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 a 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 Estate or
any portion thereof in any such jurisdiction) shall be exercised and performed
by such separate trustee or co-trustee at the direction of the Trustee. No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; provided, however, that no appointment
of a co-trustee or separate trustee hereunder shall relieve the Trustee of its
obligations hereunder.
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 IX. 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.
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 become incapable of acting, resign or be removed, or shall be adjudged a
bankrupt or insolvent, or a receiver of its property shall be appointed, or any
public officer shall take charge or control of such trustee or co-trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, 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 9.10 AUTHENTICATING AGENTS. The Trustee may appoint one or
more authenticating agents ("AUTHENTICATING AGENTS") which shall be authorized
to act on behalf of the Trustee in authenticating or countersigning
Certificates. Initially, the Authenticating Agent shall be The Bank of New York.
Wherever reference is made in this Agreement to the authentication or
countersigning of Certificates by the Trustee or the Trustee's certificate of
authentication or countersigning, such reference shall be deemed to include
authentication or countersigning on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication or countersignature executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent must be
acceptable to the Servicers and must be a corporation or banking association
organized and doing business under the laws of the United States of America or
of any State, having a principal office and place of business in New York, New
York, having a combined capital and surplus of at least $15,000,000, authorized
under such laws to do a trust business and subject to supervision or examination
by Federal or State authorities.
Any corporation or banking association into which any Authenticating
Agent may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation or banking association succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Servicers. The Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Servicers. Upon
receiving a notice of resignation or upon such a termination, or in case, at any
time any Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Servicers and shall mail notice of such appointment to all Certificateholders.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent.
Section 9.11 TRUSTEE'S FEES AND EXPENSES. The Trustee, as
compensation for its activities hereunder, shall be entitled to receive on each
Distribution Date an amount equal to the Trustee Fee for such Distribution Date
pursuant to Section 5.02(a). The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Trust and held harmless against
any loss, liability or expense (including reasonable attorney's fees) (a)
incurred in connection with any claim or legal action relating to (i) this
Agreement, (ii) the Certificates, or (iii) 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 gross negligence in the
performance of any of the Trustee's duties hereunder, (b) resulting from any tax
or information return which was prepared by, or should have been prepared by,
the related Servicer and (c) arising out of the transfer of any Private
Certificate not in compliance with ERISA. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Trustee
hereunder. Without limiting the foregoing, except as otherwise agreed upon in
writing by the Depositor and the Trustee, and except for any such expense,
disbursement or advance as may arise from the Trustee's gross negligence, bad
faith or willful misconduct, the Trust shall reimburse the Trustee for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement to the extent
permitted by Treasury Regulations Section 1.860G-1(b)(3)(ii) and (iii);
provided, however, that the Depositor and the Trustee intend to enter into a
separate agreement for custody-related services. Except as otherwise provided
herein, the Trustee shall not be entitled to payment or reimbursement for any
routine ongoing expenses incurred by the Trustee in the ordinary course of its
duties as Trustee, Certificate Registrar or Paying Agent hereunder or for any
other expenses.
Section 9.12 [RESERVED]
Section 9.13 PAYING AGENTS. The Trustee may appoint one or more
Paying Agents (each, a "PAYING AGENT") which shall be authorized to act on
behalf of the Trustee in making withdrawals from the Certificate Account and
distributions to Certificateholders as provided in Section 3.08 and Section
5.02. Wherever reference is made in this Agreement to the withdrawal from the
Certificate Account by the Trustee, such reference shall be deemed to include
such a withdrawal on behalf of the Trustee by a Paying Agent. Initially, the
Paying Agent shall be The Bank of New York. Whenever reference is made in this
Agreement to a distribution by the Trustee or the furnishing of a statement to
Certificateholders by the Trustee, such reference shall be deemed to include
such a distribution or furnishing on behalf of the Trustee by a Paying Agent.
Each Paying Agent shall provide to the Trustee such information concerning the
Certificate Account as the Trustee shall request from time to time. Each Paying
Agent must be reasonably acceptable to the Servicers and must be a corporation
or banking association organized and doing business under the laws of the United
States of America or of any state, having (except in the case of the Trustee) a
principal office and place of business in New York, New York, having a combined
capital and surplus of at least $15,000,000, authorized under such laws to do a
trust business and subject to supervision or examination by federal or state
authorities.
Any corporation into which any Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Paying Agent shall be
a party, or any corporation succeeding to the corporate agency business of any
Paying Agent, shall continue to be the Paying Agent provided that such
corporation after the consummation of such merger, conversion, consolidation or
succession meets the eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Servicers; provided that the Paying Agent
has returned to the Certificate Account or otherwise accounted, to the
reasonable satisfaction of the Trustee, for all amounts it has withdrawn from
the Certificate Account. The Trustee may, upon prior written approval of the
Servicers, at any time terminate the agency of any Paying Agent by giving
written notice of termination to such Paying Agent and to the Servicers. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any Paying Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 9.13, the Trustee may appoint,
upon prior written approval of the Servicers, a successor Paying Agent, shall
give written notice of such appointment to the Servicers and shall mail notice
of such appointment to all Certificateholders. Any successor Paying Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Paying Agent. The Trustee shall remain liable
for any duties and obligations assumed by its appointed Paying Agent.
Section 9.14 LIMITATION OF LIABILITY. The Certificates are executed
by the Trustee, not in its individual capacity but solely as Trustee of the
Trust, in the exercise of the powers and authority conferred and vested in it by
this Agreement. Each of the undertakings and agreements made on the part of the
Trustee in the Certificates is made and intended not as a personal undertaking
or agreement by the Trustee but is made and intended for the purpose of binding
only the Trust.
Section 9.15 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
CERTIFICATES. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such preceding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursement and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Certificateholders in respect of which such
judgment has been recovered.
Section 9.16 SUITS FOR ENFORCEMENT. In case an Event of Default or
other default by a Servicer or the Depositor hereunder shall occur and be
continuing, the Trustee, in its discretion, may proceed to protect and enforce
its rights and the rights of the Holders of Certificates under this Agreement by
a suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee and the Certificateholders.
Section 9.17 WAIVER OF BOND REQUIREMENT. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust, or any part thereof, may be located that the
Trustee post a bond or other surety with any court, agency or body whatsoever.
Section 9.18 WAIVER OF INVENTORY, ACCOUNTING AND APPRAISAL
REQUIREMENT. The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
Section 9.19 YEAR 2000 COMPLIANCE. The Trustee warrants that it will
use commercially reasonable efforts to ensure that the computer software and
hardware systems ("SYSTEMS") that are owned by the Trustee and used to provide
the services are 2000 Compliant or will be made 2000 Compliant before December
31, 1999. With respect to software that the Trustee licenses from third parties
and uses in providing the services ("THIRD PARTY SOFTWARE"), the Trustee
warrants that it has used or will use commercially reasonable efforts to test
the same by September 30, 1999 to certify, in accordance with the Trustee's
standard practices, that the Third Party Software is 2000 Compliant. If the
Trustee cannot certify any Third Party Software as 2000 Compliant, the Trustee
will use commercially reasonable efforts to replace such Third Party Software
with software that is warranted or certified by its vendor as 2000 Compliant, if
such replacement is available, compatible with the Trustee's Systems and deemed
by the Trustee as appropriate under the circumstances. In the event that the
Trustee uses third party service providers to provide the services or any
portion thereof ("Third Party Services"), the Trustee warrants that it has in
place a program under which it will use commercially reasonable efforts to
contact such service providers and obtain from them assurances that the Systems
that they use in providing services are 2000 Compliant. Notwithstanding the
foregoing, the Trustee cannot and does not warrant that the Systems, Third Party
Software or Third Party Services will continue to interface with the hardware,
firmware, software (including operating systems), records or data used by the
third parties. As used herein, the term "2000 Compliant" means that the Systems,
Third Party Software and Third Party Services will function without material
error caused by the introduction of dates falling on or after January 1, 2000.
ARTICLE X
TERMINATION
Section 10.01 TERMINATION UPON PURCHASE BY THE DEPOSITOR OR
LIQUIDATION OF ALL MORTGAGE LOANS. Subject to Section 10.02, the respective
obligations and responsibilities of the Depositor, the Servicers and the Trustee
created hereby (other than the obligation of Trustee to make certain payments to
Certificateholders after the Final Distribution Date and to send certain notices
as hereinafter set forth and the obligations of the Trustee pursuant to Sections
5.04(b) and 5.05(b)) shall terminate upon the last action required to be taken
by the Trustee on the Final Distribution Date pursuant to this Article X
following the earlier of (a) the purchase by the Depositor of all Mortgage Loans
and all REO Property remaining in the Trust Estate at a price equal to the sum
of (i) 100% of the Stated Principal Balance of each Mortgage Loan (other than
any Mortgage Loan as to which REO Property has been acquired and whose fair
market value is included pursuant to clause (ii) below) and (ii) the fair market
value of such REO Property (as determined by the Depositor as of the close of
business on the third Business Day next preceding the date upon which notice of
any such termination is furnished to Certificateholders pursuant to the third
paragraph of this Article X), plus any Class Unpaid Interest Shortfall for any
Class of Certificates as well as one month's interest at the related Mortgage
Rate on the Stated Principal Balance of each Mortgage Loan (including any
Mortgage Loan as to which REO Property has been acquired) or (b) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Estate or the disposition of all REO
Property; provided, however, that in no event shall the Trust created hereby
continue beyond 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.
The right of the Depositor to repurchase all Mortgage Loans pursuant
to (a) above is conditioned upon the Pool Stated Principal Balance as of the
Final Distribution Date being less than 10% of the Cut-Off Date Pool Principal
Balance. If such right is exercised, the Trustee shall, promptly following
payment of the purchase price, release to the Depositor or its designee the
Mortgage Files pertaining to the Mortgage Loans being purchased.
Notice of any termination, specifying the Final Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and for cancellation, shall be given promptly
by the Depositor (if exercising its right to purchase the assets of the Trust)
or by the Trustee (in any other case) by letter to Certificateholders mailed not
earlier than the 15th day and not later than the 25th day of the month next
preceding the month of such final distribution specifying (1) the Final
Distribution Date upon which final payment of the Certificates will be made upon
presentation and surrender of Certificates at the office or agency of the
Trustee therein designated, (2) the amount of any such final payment and (3)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified. If the
Depositor is obligated to give notice to Certificateholders as aforesaid, it
shall give such notice to the Trustee and the Certificate Registrar at the time
such notice is given to Certificateholders. In the event such notice is given by
the Depositor, the Depositor shall deposit in the Certificate Account on or
before the Final Distribution Date in immediately available funds an amount
equal to the amount necessary to make the amount, if any, on deposit in the
Certificate Account on the Final Distribution Date equal to the purchase price
for the related assets of the Trust computed as above provided together with a
statement as to the amount to be distributed on each Class of Certificates
pursuant to the next succeeding paragraph.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to Certificateholders of each Class, in the order
set forth in Section 5.02 hereof, on the final Distribution Date and in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (I) as to each Class of
Certificates, the Class Certificate Balance thereof plus (a) accrued interest
thereon in the case of an interest bearing Certificate and (b) the Class A-PO
Deferred Amount with respect to the Class A-PO Certificates, and (II) as to the
Class A-R and A-LR Certificates, the amounts, if any, which remain on deposit in
the Upper-Tier Certificate Account and the Certificate Account, respectively
(other than the amounts retained to meet claims) after application pursuant to
clause (I) above. An amount shall be distributed in respect of interest and
principal to the Uncertificated Lower-Tier Interests in the same amounts as
distributed to their Corresponding Upper-Tier Class or Classes.
If all of the Certificateholders do not surrender their Certificates
for final payment and cancellation on or before the Final Distribution Date, the
Trustee shall on such date cause all funds in the Certificate Account not
distributed in final distribution to Certificateholders to continue to be held
by the Trustee in an Eligible Account for the benefit of such Certificateholders
and the Depositor (if it exercised its right to purchase the assets of the Trust
Estate) or the Trustee (in any other case) shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the 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 on deposit in such Eligible Account.
Section 10.02 ADDITIONAL TERMINATION REQUIREMENTS.
(a) If the Depositor exercises its purchase option as provided in
Section 10.01, the Trust shall be terminated in accordance with the following
additional requirements, unless the Trustee has received an Opinion of Counsel
to the effect that the failure of the Trust to comply with the requirements of
this Section 10.02 will not (i) result in the imposition of taxes on "prohibited
transactions" of the Trust as defined in Section 860F of the Code, or (ii) cause
the Trust Estate to fail to qualify as two separate REMICs at any time that any
Certificates are outstanding:
(i) within 90 days prior to the Final Distribution Date set forth
in the notice given by the Depositor under Section 10.01, the Trustee
shall sell all of the assets of the Trust Estate to the Depositor for
cash; and
(ii) the notice given by the Depositor or the Trustee pursuant to
Section 10.01 shall provide that such notice constitutes the adopting of a
plan of complete liquidation of the Upper-Tier REMIC and the Lower-Tier
REMIC as of the date of such notice (or, if earlier, the date on which
such notice was mailed to Certificateholders). The Trustee shall also
specify such date in the final tax return of the Upper-Tier REMIC and the
Lower-Tier REMIC.
(b) By their acceptance of the Residual Certificates, the Holders
thereof hereby agree to take such other action in connection with such plan of
complete liquidation as may be reasonably requested by the Depositor.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 AMENDMENT. This Agreement may be amended from time to
time by the Depositor, the Servicers and the Trustee without the consent of any
of the Certificateholders, (i) to cure any ambiguity or mistake, (ii) to correct
or supplement any provisions herein or therein which may be inconsistent with
any other provisions herein or therein, (iii) to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Upper-Tier REMIC and the Lower-Tier REMIC as REMICs at all
times that any Certificates are outstanding or to avoid or minimize the risk of
the imposition of any tax on either REMIC pursuant to the Code that would be a
claim against the Trust Estate, provided that (a) the Trustee has received an
Opinion of Counsel to the effect that such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the imposition
of any such tax and (b) such action shall not, as evidenced by such Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, (iv) to change the timing and/or nature of deposits into the
Certificate Account provided that (a) such change shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder and (b) such change shall not adversely affect the
then-current rating of the Senior Certificates, the Class B-1 Certificates, the
Class B-2 Certificates, the Class B-3 Certificates, the Class B-4 Certificates
or the Class B-5 Certificates as evidenced by a letter from each Rating Agency
rating such Certificates to such effect and (v) to make any other provisions
with respect to matters or questions arising under this Agreement which shall
not be materially inconsistent with the provisions of this Agreement, provided
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder, provided
that the amendment shall not be deemed to adversely affect in any material
respect the interests of the Certificateholders and no Opinion of Counsel to
that effect shall be required if the Person requesting the amendment obtains a
letter from each Rating Agency stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates.
This Agreement may also be amended from time to time by the
Depositor, the Servicers and the Trustee, with the consent of the Holders of
Certificates of each Class of Certificates which is affected by such amendment,
evidencing, as to each such Class of Certificates, Percentage Interests
aggregating not less than 66-2/3%, 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 such Certificates;
provided, however, that no such amendment shall (A) reduce in any manner the
amount of, or delay the timing of, collections of payments on Mortgage Loans or
distributions which are required to be made on any Certificate without the
consent of the Holder of such Certificate or (B) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the Holders of
all Certificates then Outstanding.
Prior to the solicitation of consent of Certificateholders in
connection with any such amendment, the party seeking such amendment shall
furnish the Trustee with an Opinion of Counsel stating whether such amendment
would adversely affect the qualification of the Upper-Tier REMIC or the
Lower-Tier REMIC as REMICs and notice of the conclusion expressed in such
Opinion of Counsel shall be included with any such solicitation. An amendment
made with the consent of all Certificateholders and executed in accordance with
this Section 11.01 shall be permitted or authorized by this Agreement
notwithstanding that such Opinion of Counsel may conclude that such amendment
would adversely affect the qualification of the Upper-Tier REMIC or the
Lower-Tier REMIC as REMICs.
Promptly after the execution of any such amendment or consent the
Trustee shall furnish written notification of the substance of or a copy of such
amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 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 requirements as the Trustee may prescribe.
Section 11.02 RECORDATION OF AGREEMENT. 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 either
Servicer and at its expense on direction by the Trustee, who will act at the
direction of Holders of Certificates evidencing not less than 50% of all Voting
Rights, but only upon direction of the Trustee accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Certificateholders.
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 11.03 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
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, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
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 default and of the continuance thereof, as provided herein, and unless also
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 25% of each Class of Certificates affected thereby shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the 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
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 11.03, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.04 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.05 NOTICES. All demands, notices, instructions,
directions, requests and communications required to be delivered hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified mail, return receipt requested, (provided,
however, that notices to the Trustee shall be deemed effective upon receipt) to
(a) in the case of the Depositor, Bank of America Mortgage Securities, Inc., 345
Montgomery Street, Lower Level #2, Unit #8152, San Francisco, California 94104,
Attention: Russell Thompson, (b) in the case of the NMC Servicer, NationsBanc
Mortgage Corporation, 101 East Main Street, Suite 400, Louisville, Kentucky
40202, Attention: Servicing Manager, with a copy to: NationsBanc Mortgage
Corporation, 201 North Tryon Street, 14th Floor, Charlotte, North Carolina
28255, Attention: General Counsel and Treasurer, (c) in the case of the BA
Servicer, Bank of America, FSB, 10200 Valley View Street, Cypress, California
90630, Attention: Brian Shea, (d) in the case of the Trustee, 101 Barclay Street
- 12E, New York, New York 10286, Attention: Corporate Trust - MBS Group (Fax:
(212) 815-5309), (d) in the case of S&P, Standard & Poor's, a division of The
McGraw-Hill Companies, Inc., 26 Broadway, New York, New York 10004, Attn:
Mortgage Surveillance Group, and (e) in the case of Fitch, Fitch IBCA, Inc., One
State Street Plaza, New York, New York 10004, Attn: Residential Mortgage
Surveillance Group; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 11.06 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 11.07 CERTIFICATES NONASSESSABLE AND FULLY PAID. It is the
intention of the Trustee that Certificateholders shall not be personally liable
for obligations of the Trust Estate, that the beneficial ownership interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust Estate or for any reason whatsoever, and that Certificates
upon execution, countersignature and delivery thereof by the Trustee pursuant to
Section 6.01 are and shall be deemed fully paid.
Section 11.08 ACCESS TO LIST OF CERTIFICATEHOLDERS. The Certificate
Registrar will furnish or cause to be furnished to the Trustee, within 15 days
after the receipt of a request by the Trustee in writing, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date for payment of
distributions to Certificateholders.
If three or more Certificateholders apply in writing to the Trustee,
and such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such applicants access during
normal business hours to the most recent list of Certificateholders held by the
Trustee. If such a list is as of a date more than 90 days prior to the date of
receipt of such applicants' request, the Trustee shall promptly request from the
Certificate Registrar a current list as provided above, and shall afford such
applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 11.09 RECHARACTERIZATION. The parties to this Agreement
intend the conveyance by the Depositor to the Trustee of all of its right, title
and interest in and to the Mortgage Loans pursuant to this Agreement to
constitute a purchase and sale and not a loan. Notwithstanding the foregoing, to
the extent that such conveyance is held not to constitute a sale under
applicable law, it is intended that this Agreement shall constitute a security
agreement under applicable law and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
IN WITNESS WHEREOF, the Depositor, the Servicers and the Trustee
have caused this Agreement to be duly executed by their respective officers
thereunto duly authorized to be hereunto affixed, all as of the day and year
first above written.
BANK OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor
By: ________________________________________
Name: Sharon Joseph
By: Vice President
NATIONSBANC MORTGAGE CORPORATION,
as Servicer
By: ________________________________________
Name: Robert J. Debenedet
By: Vice President
BANK OF AMERICA, FSB,
as Servicer
By: ________________________________________
Name: Russell Thompson
By: Vice President
THE BANK OF NEW YORK,
as Trustee
By: ________________________________________
Name: Kelly Sheahan
By: Vice President
STATE OF NEW YORK. )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of March, 1999, before me, a notary public in and
for the State of New York, personally appeared Kelly Sheahan, known to me who,
being by me duly sworn, did depose and say that she is an Assistant Vice
President of The Bank of New York, a New York banking corporation, one of the
parties that executed the foregoing instrument; and that she signed her name
thereto by order of the Board of Directors of such corporation.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 25th day of March, 1999, before me, a notary public in and
for the State of North Carolina, personally appeared Robert J. Debenedet, known
to me who, being by me duly sworn, did depose and say that he is a Vice
President of NationsBanc Mortgage Corporation, a Texas corporation, one of the
parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such corporation.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of March, 1999, before me, a notary public in and
for the State of New York, personally appeared Russell Thompson, known to me
who, being by me duly sworn, did depose and say that he is an Vice President of
Bank of America, FSB, a federal savings bank, one of the parties that executed
the foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of such corporation.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NEW YORK. )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of March, 1999, before me, a notary public in and
for the State of New York, personally appeared Sharon Joseph, known to me who,
being by me duly sworn, did depose and say that she is the Vice President of
Bank of America Mortgage Securities, Inc. a Delaware corporation, one of the
parties that executed the foregoing instrument; and that she signed her name
thereto by order of the Board of Directors of such corporation.
---------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-1
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THE AMOUNT SET FORTH BELOW.
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-1
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Bank of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: March 1, 1999
First Distribution Date: April 26, 1999
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of all
Certificates of this Class: $100,000,000.00
Pass-Through Rate: 6.500%
CUSIP No.: 060506 BK 7
This certifies that _____________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate Initial Class Certificate
Balance of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust consisting primarily of
the Mortgage Loans deposited by Bank of America Mortgage Securities, Inc. (the
"Depositor"). The Trust was created pursuant to a Pooling and Servicing
Agreement, dated March 25, 1999 (the "Pooling and Servicing Agreement"), among
the Depositor, NationsBanc Mortgage Corporation, as servicer, Bank of America,
FSB, as servicer (together with NationsBanc Mortgage Corporation, the
"Servicers"), and The Bank of New York, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Class Certificate
Balance at any time may be less than the Class Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicers or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2
[FORM OF FACE OF CLASS A-2 CERTIFICATE]
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THE AMOUNT SET FORTH BELOW.
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-2
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Bank of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: March 1, 1999
First Distribution Date: April 26, 1999
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of all
Certificates of this Class: $100,000,000.00
Pass-Through Rate: 6.500%
CUSIP No.: 060506 BL 5
This certifies that ________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate Initial Class Certificate
Balance of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust consisting primarily of
the Mortgage Loans deposited by Bank of America Mortgage Securities, Inc. (the
"Depositor"). The Trust was created pursuant to a Pooling and Servicing
Agreement, dated March 25, 1999 (the "Pooling and Servicing Agreement"), among
the Depositor, NationsBanc Mortgage Corporation, as servicer, Bank of America,
FSB, as servicer (together with NationsBanc Mortgage Corporation, the
"Servicers"), and The Bank of New York, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Class Certificate
Balance at any time may be less than the Class Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicers or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
EXHIBIT A-3
[FORM OF FACE OF CLASS A-3 CERTIFICATE]
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THE AMOUNT SET FORTH BELOW.
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-3
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Bank of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: March 1, 1999
First Distribution Date: April 26, 1999
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of all
Certificates of this Class: $26,800,000.00
Pass-Through Rate: 6.500%
CUSIP No.: 060506 BM 3
This certifies that ______________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate Initial Class Certificate
Balance of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust consisting primarily of
the Mortgage Loans deposited by Bank of America Mortgage Securities, Inc. (the
"Depositor"). The Trust was created pursuant to a Pooling and Servicing
Agreement, dated March 25, 1999 (the "Pooling and Servicing Agreement"), among
the Depositor, NationsBanc Mortgage Corporation, as servicer, Bank of America,
FSB, as servicer (together with NationsBanc Mortgage Corporation, the
"Servicers"), and The Bank of New York, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Class Certificate
Balance at any time may be less than the Class Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicers or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
EXHIBIT A-4
[FORM OF FACE OF CLASS A-4 CERTIFICATE]
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-4
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THE AMOUNT SET FORTH BELOW.
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-4
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Bank of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: March 1, 1999
First Distribution Date: April 26, 1999
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of all
Certificates of this Class: $4,826,000.00
Pass-Through Rate: 6.500%
CUSIP No.: 060506 BN 1
This certifies that ________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate Initial Class Certificate
Balance of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust consisting primarily of
the Mortgage Loans deposited by Bank of America Mortgage Securities, Inc. (the
"Depositor"). The Trust was created pursuant to a Pooling and Servicing
Agreement, dated March 25, 1999 (the "Pooling and Servicing Agreement"), among
the Depositor, NationsBanc Mortgage Corporation, as servicer, Bank of America,
FSB, as servicer (together with NationsBanc Mortgage Corporation, the
"Servicers"), and The Bank of New York, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Class Certificate
Balance at any time may be less than the Class Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicers or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate is issued on March 25, 1999, and based on its issue
price of 97.76302%, including accrued interest, and a stated redemption price at
maturity equal to its initial principal balance, is issued with original issue
discount ("OID") for federal income tax purposes. Assuming that this Certificate
pays in accordance with projected cash flows reflecting the prepayment
assumption of 275% SPA (as defined in the Prospectus Supplement dated March 18,
1999 with respect to the offering of the Class A Certificates and the Class B-1,
Class B-2 and Class B-3 Certificates) used to price this Certificate: (i) the
amount of OID as a percentage of the initial principal balance of this
Certificate is approximately 2.23698067%; and (ii) the annual yield to maturity
of this Certificate, compounded monthly, is approximately 6.86%. There is no
short first accrual period.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
EXHIBIT A-5
[FORM OF FACE OF CLASS A-5 CERTIFICATE]
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-5
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THE AMOUNT SET FORTH BELOW.
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-5
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Bank of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: March 1, 1999
First Distribution Date: April 26, 1999
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of all
Certificates of this Class: $7,621,000.00
Pass-Through Rate: 6.500%
CUSIP No.: 060506 BP 6
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate Initial Class Certificate
Balance of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust consisting primarily of
the Mortgage Loans deposited by Bank of America Mortgage Securities, Inc. (the
"Depositor"). The Trust was created pursuant to a Pooling and Servicing
Agreement, dated March 25, 1999 (the "Pooling and Servicing Agreement"), among
the Depositor, NationsBanc Mortgage Corporation, as servicer, Bank of America,
FSB, as servicer (together with NationsBanc Mortgage Corporation, the
"Servicers"), and The Bank of New York, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Class Certificate
Balance at any time may be less than the Class Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicers or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate is issued on March 25, 1999, and based on its issue
price of 97.57396%, including accrued interest, and a stated redemption price at
maturity equal to its initial principal balance, is issued with original issue
discount ("OID") for federal income tax purposes. Assuming that this Certificate
pays in accordance with projected cash flows reflecting the prepayment
assumption of 275% SPA (as defined in the Prospectus Supplement dated March 18,
1999 with respect to the offering of the Class A Certificates and the Class B-1,
Class B-2 and Class B-3 Certificates) used to price this Certificate: (i) the
amount of OID as a percentage of the initial principal balance of this
Certificate is approximately 2.42604167%; and (ii) the annual yield to maturity
of this Certificate, compounded monthly, is approximately 6.85%. There is no
short first accrual period.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
EXHIBIT A-6
[FORM OF FACE OF CLASS A-6 CERTIFICATE]
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-6
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THE AMOUNT SET FORTH BELOW.
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-6
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Bank of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: March 1, 1999
First Distribution Date: April 26, 1999
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of all
Certificates of this Class: $6,009,000.00
Pass-Through Rate: 6.500%
CUSIP No.: 060506 BQ 4
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate Initial Class Certificate
Balance of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust consisting primarily of
the Mortgage Loans deposited by Bank of America Mortgage Securities, Inc. (the
"Depositor"). The Trust was created pursuant to a Pooling and Servicing
Agreement, dated March 25, 1999 (the "Pooling and Servicing Agreement"), among
the Depositor, NationsBanc Mortgage Corporation, as servicer, Bank of America,
FSB, as servicer (together with NationsBanc Mortgage Corporation, the
"Servicers"), and The Bank of New York, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Class Certificate
Balance at any time may be less than the Class Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicers or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
EXHIBIT A-7
[FORM OF FACE OF CLASS A-7 CERTIFICATE]
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-7
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THE AMOUNT SET FORTH BELOW.
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-7
evidencing an interest in a Trust consisting primarily of a pool of mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Bank of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-Off Date: March 1, 1999
First Distribution Date: April 26, 1999
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of all
Certificates of this Class: $8,456,429.00
Pass-Through Rate: 6.900%
CUSIP No.: 060506 BR 2
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate Initial Class Certificate
Balance of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust consisting primarily of
the Mortgage Loans deposited by Bank of America Mortgage Securities, Inc. (the
"Depositor"). The Trust was created pursuant to a Pooling and Servicing
Agreement, dated March 25, 1999 (the "Pooling and Servicing Agreement"), among
the Depositor, NationsBanc Mortgage Corporation, as servicer, Bank of America,
FSB, as servicer (together with NationsBanc Mortgage Corporation, the
"Servicers"), and The Bank of New York, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Class Certificate
Balance at any time may be less than the Class Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicers or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
countersigned by an authorized signatory of the Trustee.
* * *
EXHIBIT A-8
[FORM OF FACE OF CLASS A-8 CERTIFICATE]
BANK OF AMERICA MORTGAGE SECURITIES, INC.
Mortgage Pass-Through Certificates, Series 1999-2
Class A-8
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). 