1
Exhibit 10.15.4
SALE AND SERVICING AGREEMENT
Dated as of November 1, 2000
Among
FIRST INTERNATIONAL BANK
SBA LOAN TRUST
2000-2
(Trust)
FIRST INTERNATIONAL BANK
(Seller and Servicer)
and
FIB FUNDING TRUST
(Seller)
FIRST INTERNATIONAL BANK
SBA LOAN-BACKED NOTES,
SERIES 2000-2
2
TABLE OF CONTENTS
Section Page
- ------- ----
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................................................2
Section 1.02 Use of Words and Phrases......................................................................2
Section 1.03 Captions; Table of Contents...................................................................2
ARTICLE II
SALE AND CONVEYANCE OF THE TRUST FUND
Section 2.01 Sale and Conveyance of Trust Fund.............................................................3
Section 2.02 Possession of SBA Files.......................................................................3
Section 2.03 Books and Records.............................................................................3
Section 2.04 Delivery of SBA Loan Documents................................................................4
Section 2.05 Acceptance by Trustee of the Trust Fund; Certain Substitutions;
Certification by Indenture Trustee............................................................6
Section 2.06 [Reserved]....................................................................................8
Section 2.07 [Reserved]....................................................................................8
Section 2.08 Fees and Expenses of the Owner Trustee and the Indenture Trustee..............................8
Section 2.09 Transfer and Conveyance of the Subsequent SBA Loans...........................................9
Section 2.10 Optional Purchase of Defaulted SBA Loans.....................................................11
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations of the Company...............................................................12
Section 3.02 Individual SBA Loans.........................................................................15
Section 3.03 Purchase and Substitution of Defective SBA Loans.............................................20
Section 3.04 Representations Concerning Funding...........................................................22
ARTICLE IV
ADMINISTRATION AND SERVICING OF SBA LOANS
Section 4.01 Duties of the Servicer.......................................................................24
Section 4.02 Liquidation of SBA Loans.....................................................................27
Section 4.03 Establishment of Principal and Interest Accounts; Deposits in Principal
and Interest Accounts........................................................................28
Section 4.04 Permitted Withdrawals From the Principal and Interest Account................................30
i
3
Section 4.05 [Intentionally Omitted]......................................................................31
Section 4.06 Transfer of Accounts.........................................................................31
Section 4.07 Maintenance of Hazard Insurance..............................................................31
Section 4.08 [Intentionally Omitted]......................................................................32
Section 4.09 Fidelity Bond................................................................................32
Section 4.10 Title, Management and Disposition of Foreclosed Property.....................................32
Section 4.11 [Intentionally Omitted]......................................................................33
Section 4.12 Collection of Certain SBA Loan Payments......................................................34
Section 4.13 Access to Certain Documentation and Information Regarding the SBA Loans......................34
ARTICLE V
PAYMENTS TO THE NOTEHOLDERS
Section 5.01 Establishment of Note Distribution Account; Deposits in Note Distribution Account;
Permitted Withdrawals from Note Distribution Account.........................................35
Section 5.02 Establishment of Spread Account; Deposits in Spread Account; Permitted Withdrawals
from Spread Account..........................................................................36
Section 5.03 Establishment of Expense Account; Deposits in Expense Account; Permitted Withdrawals
from Expense Account.........................................................................37
Section 5.04 Pre-Funding Account and Capitalized Interest Account.........................................39
Section 5.05 [Intentionally Omitted]......................................................................40
Section 5.06 Investment of Accounts.......................................................................40
Section 5.07 Distributions................................................................................41
Section 5.08 Determination of LIBOR.......................................................................43
Section 5.09 Statements...................................................................................43
Section 5.10 Advances by the Servicer.....................................................................47
Section 5.11 Compensating Interest........................................................................47
Section 5.12 Reports of Foreclosure and Abandonment.......................................................48
GENERAL SERVICING PROCEDURE
Section 6.01 [Intentionally Omitted]......................................................................49
Section 6.02 Satisfaction of Mortgages and Collateral and Release of SBA Files............................49
Section 6.03 Servicing Compensation.......................................................................50
Section 6.04 Annual Statement as to Compliance............................................................51
Section 6.05 Annual Independent Public Accountants' Servicing Report......................................51
Section 6.06 SBA's and Indenture Trustee's Right to Examine Servicer Records and Audit Operations.........51
Section 6.07 Reports to the Indenture Trustee; Principal and Interest Account Statements..................51
Section 6.08 Required Holdback Amount.....................................................................52
ii
4
ARTICLE VII
REPORTS TO BE PROVIDED BY SERVICER
Section 7.01 Financial Statements.........................................................................53
ARTICLE VIII
THE SERVICER
Section 8.01 Indemnification; Third Party Claims..........................................................54
Section 8.02 Merger or Consolidation of the Servicer......................................................55
Section 8.03 Limitation on Liability of the Servicer and Others...........................................56
Section 8.04 Servicer Not to Resign.......................................................................56
ARTICLE IX
SERVICER TERMINATION
Section 9.01 Servicer Termination Events..................................................................57
Section 9.02 Trustee to Act; Appointment of Successor.....................................................58
Section 9.03 Waiver of Defaults...........................................................................60
Section 9.04 Control by Majority Noteholders..............................................................61
ARTICLE X
TERMINATION
Section 10.01 Termination..................................................................................62
Section 10.02 Accounting Upon Termination of Servicer......................................................63
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Acts of Noteholders..........................................................................64
Section 11.02 Amendment....................................................................................64
Section 11.03 Recordation of Agreement.....................................................................64
Section 11.04 Duration of Agreement........................................................................65
Section 11.05 Governing Law................................................................................65
Section 11.06 Notices......................................................................................65
Section 11.07 Severability of Provisions...................................................................66
Section 11.08 No Partnership...............................................................................66
Section 11.09 Counterparts.................................................................................66
Section 11.10 Successors and Assigns.......................................................................66
Section 11.11 Headings.....................................................................................66
Section 11.12 Notification to Rating Agencies..............................................................66
iii
5
Section 11.13 Inconsistencies..............................................................................66
Section 11.14 Limitation of Liability......................................................................67
Section 11.15 No Petition..................................................................................67
iv
6
APPENDIX A Definitions and Usage
EXHIBIT INDEX
EXHIBIT A Contents of SBA File
EXHIBIT B [Intentionally Omitted]
EXHIBIT C Principal and Interest Account
Letter Agreement
EXHIBIT D [Intentionally Omitted]
EXHIBIT E [Intentionally Omitted]
EXHIBIT F Initial Certification
EXHIBIT F-1 Final Certification
EXHIBIT G [Intentionally Omitted]
EXHIBIT H-1 SBA Loan Schedule of FIB
EXHIBIT H-2 SBA Loan Schedule of Funding
EXHIBIT I Request for Release of Documents
EXHIBIT J Form of Liquidation Report
EXHIBIT K Form of Delinquency Report
EXHIBIT L Servicer's Monthly Computer Tape Format
EXHIBIT M Form of Multi-Party Agreement
v
7
Sale and Servicing Agreement dated as of November 1, 2000, among First
International Bank SBA Loan Trust 2000-2 (the "Trust"), First International
Bank, (the "Company" or "FIB"), as a Seller and as Servicer (the "Servicer") and
FIB Funding Trust ("Funding"), as a Seller (collectively with FIB, the
"Sellers") and accepted and agreed to by HSBC Bank USA, as Indenture Trustee.
PRELIMINARY STATEMENT
The Trust was formed for the purpose of issuing asset backed notes and
asset backed certificates secured by the Unguaranteed Interests in the SBA
Loans. The Issuer has entered into a trust indenture, dated as of November 1,
2000 (the "Indenture"), between the Trust and the Indenture Trustee, pursuant to
which the Trust intends to issue its First International Bank SBA Loan-Backed
Notes, Series 2000-2 (the "Notes"). Pursuant to the Indenture, as security for
the indebtedness represented by the Notes, the Issuer is and will be pledging to
the Indenture Trustee, and granting the Indenture Trustee a security interest
in, among other things, the Unguaranteed Interests in the SBA Loans and its
rights under this Agreement.
The parties desire to enter into this Agreement to provide, among other
things, for the servicing of the SBA Loans by the Servicer. The Servicer
acknowledges that, in order further to secure the Notes, the Trust is and will
be granting to the Indenture Trustee a security interest in, among other things,
its rights under this Agreement, and the Servicer agrees that all covenants and
agreements made by the Servicer herein with respect to the SBA Loans shall also
be for the benefit and security of the Indenture Trustee and the Noteholders.
For its services hereunder, the Servicer will receive the Required Holdback
Amount with respect to each SBA Loan serviced hereunder.
8
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For all purposes of this Agreement,
capitalized terms used herein shall have the meanings set forth in Appendix A,
unless the context clearly indicates otherwise.
Section 1.02 Use of Words and Phrases. "Herein", "hereby", "hereunder",
"hereof", "hereinbefore", "hereinafter" and other equivalent words refer to this
Agreement as a whole and not solely to the particular section of this Agreement
in which any such word is used.
Section 1.03 Captions; Table of Contents. The captions or headings in
this Agreement and the Table of Contents are for convenience only and in no way
define, limit or describe the scope and intent of any provisions of this
Agreement.
2
9
ARTICLE II
SALE AND CONVEYANCE OF THE TRUST FUND
Section 2.01 Sale and Conveyance of Trust Fund.
(a) On the terms and conditions hereinafter set forth, the Sellers hereby sell,
transfer, assign, set over and convey to the Trust, without recourse, for the
benefit of the SBA, the Noteholders and the Certificateholders, subject to the
terms of the Basic Documents, all of the right, title and interest of the
Sellers in and to the Unguaranteed Interests in the Initial SBA Loans and all
other assets included or to be included in the Trust Fund. In consideration for
its transfer of such Unguaranteed Interests in the SBA Loans, the Sellers shall
receive the Class B Notes, the Certificates and a portion of the cash proceeds
realized by the Trust upon its sale of the Class A Notes and Class M Notes.
(b) The rights of the Noteholders and Certificateholders to
receive payments with respect to the SBA Loans in respect of the Notes and the
Certificates, and all interests of the Noteholders and Certificateholders in
such payments, shall be as set forth in the Basic Documents. The Required
Holdback Amount, the FTA's Fee, the Additional Fee and the amounts payable to
the Registered Holders shall not constitute part of the Trust Fund and the
Noteholders and Certificateholders shall have no interest in, and are not
entitled to receive any portion of, the Required Holdback Amount, the FTA's Fee,
the Additional Fee and the amounts payable to the Registered Holders.
Section 2.02 Possession of SBA Files.
(a) Upon the transfer of the Unguaranteed Interest in each SBA
Loan, the ownership of each SBA Note, the Mortgage, if applicable, and the
contents of the related SBA File will be vested in the Trust for the benefit of
itself and the SBA, as their interests may appear.
(b) Pursuant to Section 2.04, with respect to the Initial SBA
Loans, the Sellers have delivered or caused to be delivered, and, on each
Subsequent Transfer Date, the Company will deliver or cause to be delivered,
each SBA Note relating to an SBA Loan to the FTA.
Section 2.03 Books and Records.
The transfer of the Unguaranteed Interest of each SBA Loan shall be
reflected on the applicable Seller's balance sheet and other financial
statements as a sale of assets by the applicable Seller and the applicable
Seller shall respond to any third-party inquiry that such transfer is so
reflected as a sale. The applicable Seller shall be responsible for maintaining,
and shall maintain, a complete set of books and records for each SBA Loan which
shall be clearly marked to reflect the ownership of the Unguaranteed Interest of
each SBA Loan by the Trust for the benefit of the SBA, the Noteholders and the
Certificateholders, as their interests may appear.
3
10
Section 2.04 Delivery of SBA Loan Documents.
The Sellers (i) contemporaneously with the delivery of this Agreement,
have delivered or caused to be delivered to the Indenture Trustee or, with
respect to the SBA Notes relating to the SBA Loans being delivered pursuant to
(a) below, to the FTA, each of the following documents for each Initial SBA Loan
and (ii) on each Subsequent Transfer Date, will deliver or cause to be delivered
to the Indenture Trustee, or with respect to the SBA Notes relating to the SBA
Loans being delivered pursuant to paragraph (a) below, to the FTA, each of the
following documents for each Subsequent SBA Loan:
(a) The original SBA Note, endorsed by means of an allonge as
follows: "Pay to the order of First Union Trust Company, National Association,
and its successors and assigns, not in its individual capacity but solely as
Owner Trustee under that certain Trust Agreement dated as of November 1, 2000,
as the same may be amended from time to time, for the benefit of the United
States Small Business Administration and the Certificateholders, as their
respective interests may appear, subject to the Multi-Party Agreement dated as
of November 1, 2000, as the same may be amended from time to time, without
recourse" and signed, by facsimile or manual signature, in the name of the
applicable Seller by a Responsible Officer, with all prior and intervening
endorsements showing a complete chain of endorsement from the originator to the
applicable Seller, if a Seller was not the originator, the allonge or the Note
will also identify the SBA Note by the applicable SBA Loan number (GP number)
(such allonge or the Note shall bear a legend stating "HSBC Bank USA, as
Indenture Trustee, has a security interest in the Unguaranteed Interest in this
Note");
(b) With respect to those SBA Loans secured by Mortgaged
Properties, either: (i) the original Mortgage, with evidence of recording
thereon, (ii) a copy of the Mortgage certified as a true copy by a Responsible
Officer of the Company where the original has been transmitted for recording
until such time as the original is returned by the public recording office or
duly licensed title or escrow officer or (iii) a copy of the Mortgage certified
by the public recording office in those instances where the original recorded
Mortgage has been lost;
(c) With respect to those SBA Loans secured by Mortgaged
Properties, either: (i) the original Assignment of Mortgage from the applicable
Seller endorsed as follows: "HSBC Bank USA, ("Assignee") its successors and
assigns, as indenture trustee under that certain Indenture dated as of November
1, 2000, as the same may be amended from time to time, for the benefit of the
United States Small Business Administration and the holders of First
International Bank SBA-Loan Backed Notes, Series 2000-2, Class A, Class M and
Class B, as their respective interests may appear, subject to the Multi-Party
Agreement dated as of November 1, 2000 as the same may be amended from time to
time," with evidence of recording thereon (provided, however, that where
permitted under the laws of the jurisdiction wherein the Mortgaged Property is
located, the Assignment of Mortgage may be effected by one or more blanket
assignments for SBA Loans secured by Mortgaged Properties located in the same
county), or (ii) a copy of such Assignment of Mortgage certified as a true copy
by a Responsible Officer of the Company where the original has been transmitted
for recording (provided, however, that where the original Assignment of Mortgage
is not being delivered to the Indenture Trustee, such Responsible Officer may
complete one or more
4
11
blanket certificates attaching copies of one or more Assignments of Mortgage
relating to the Mortgages originated by the Company);
(d) With respect to those SBA Loans secured by Mortgaged
Properties, either: (i) originals of all intervening assignments, if any,
showing a complete chain of title from the originator to the applicable Seller,
including warehousing assignments, with evidence of recording thereon if such
assignments were recorded, (ii) copies of any assignments certified as true
copies by a Responsible Officer of the Company where the originals have been
submitted for recording until such time as the originals are returned by the
public recording officer, or (iii) copies of any assignments certified by the
public recording office in any instances where the original recorded assignments
have been lost;
(e) With respect to those SBA Loans secured by Mortgaged
Properties, either: (i) originals of all title insurance policies relating to
the Mortgaged Properties to the extent the Company obtained such policies or
(ii) copies of any title insurance policies or other evidence of lien position,
including but not limited to Policy Insurance Record of Title ("PIRT") policies,
limited liability reports and lot book reports, to the extent the Company
obtains such policies or other evidence of lien position, certified as true by
the Company;
(f) With respect to those SBA Loans secured by other items of
Collateral, the original or a certified copy of all filed UCC financing
statements securing such Collateral naming the applicable Seller as "Secured
Party;"
(g) For all SBA Loans, blanket assignment of all Collateral
securing the SBA Loan, including without limitation, all rights under applicable
guarantees and insurance policies. Such assignment shall be in the name of HSBC
Bank USA, and its successors and assigns, as indenture trustee under that
certain Indenture dated as of November 1, 2000 as the same may be amended from
time to time, for the benefit of the United States Small Business Administration
and the holders of First International Bank SBA-Loan Backed Notes, Series
2000-2, subject to the Multi-Party Agreement dated as of November 1, 2000 as the
same may be amended from time to time;
(h) For all SBA Loans, irrevocable powers of attorney of the
Sellers and the Issuer to the Indenture Trustee to execute, deliver, file or
record and otherwise deal with the Collateral for the SBA Loans in accordance
with this Agreement. The powers of attorney will be delegable by the Indenture
Trustee to the Servicer and any successor servicer and will permit the Indenture
Trustee or its delegate to prepare, execute and file or record UCC financing
statements and notices to insurers; and
(i) For all SBA Loans, blanket UCC-1 financing statements
identifying by type all Collateral for the SBA Loans and naming the Indenture
Trustee, as assignee of the Trust, as "Secured Party" and the applicable Seller
as the "Debtor". The UCC-1 financing statements will be filed promptly following
the Closing Date in Connecticut and Delaware and will be in the nature of
protective notice filings rather than true financing statements.
5
12
The Sellers shall, within ten Business Days after the receipt thereof,
and in any event, within one year of the Closing Date (or with respect to the
Subsequent SBA Loans, within one year of the related Subsequent Transfer Date)
or within two years of the Closing Date or related Subsequent Transfer Date if
the public recording office is at fault in delivering the appropriate documents,
deliver or cause to be delivered to the Indenture Trustee: (i) the original
recorded Mortgage in those instances where a copy thereof certified by the
applicable Seller was delivered to the Indenture Trustee; (ii) the original
recorded Assignment of Mortgage from the applicable Seller to the Indenture
Trustee, which, together with any intervening assignments of Mortgage, evidences
a complete chain of title from the originator to the Indenture Trustee in those
instances where copies thereof certified by the applicable Seller were delivered
to the Indenture Trustee; and (iii) any intervening assignments of Mortgage in
those instances where copies thereof certified by the applicable Seller were
delivered to the Indenture Trustee. Notwithstanding anything to the contrary
contained in this Section 2.04, in those instances where the public recording
office retains the original Mortgage, Assignment of Mortgage or the intervening
assignments of the Mortgage after it has been recorded, the applicable Seller
shall be deemed to have satisfied its obligations hereunder upon delivery to the
Indenture Trustee of a copy of such Mortgage, Assignment of Mortgage or
assignments of Mortgage certified by the public recording office to be a true
copy of the recorded original thereof. All SBA Loan documents held by the
Indenture Trustee or the FTA, as the case may be, as to each SBA Loan are
referred to herein as the "Indenture Trustee's Document File."
Although it is the intent of the parties to this Agreement that the
conveyance by the Sellers of their right, title and interest in and to the
Unguaranteed Interests in the SBA Loans, including the Subsequent SBA Loans, and
other assets in the Trust Fund pursuant to this Agreement shall constitute a
purchase and sale and not a loan, in the event that such conveyance is deemed to
be a loan, it is the intent of the parties to this Agreement that the Sellers
shall be deemed to have granted, and hereby do grant, to the Trust a first
priority perfected security interest in all of the right, title and interest of
the Sellers in, to and under the Unguaranteed Interests in the SBA Loans,
including the Subsequent SBA Loans, and other assets in the Trust Fund securing
obligations in respect of such deemed loan, and that this Agreement shall
constitute a security agreement under applicable law.
All recording required pursuant to this Section 2.04 shall be
accomplished by and at the expense of the Servicer.
Section 2.05 Acceptance by Indenture Trustee of the Trust Fund;
Certain Substitutions; Certification by
Indenture Trustee.
(a) The Multi-Party Agreement provides for the FTA to deliver
an acknowledgement of receipt for each SBA Note in accordance with the terms and
conditions of the Multi-Party Agreement. The Indenture Trustee agrees, for the
benefit of the SBA, the Noteholders and the Certificateholders, to review each
Indenture Trustee's Document File within 90 days of the Closing Date (or
Subsequent Transfer Date, as the case may be) (or, with respect to any Qualified
Substitute SBA Loan, on or prior to the assignment thereof), and to deliver to
6
13
the Sellers and the Servicer a certification in the form attached hereto as
Exhibit F on or prior to such applicable date. Notwithstanding the foregoing,
with respect to the SBA Notes held by the FTA, the Indenture Trustee shall only
be required to review the "Acknowledgment of Receipt" delivered by the FTA and
within two Business Days of the Closing Date (or Subsequent Transfer Date or
other date of assignment as the case may be), the Indenture Trustee shall
deliver to the Company and the Servicer a certification in the form attached
hereto as Exhibit F relating to such "Acknowledgment of Receipt". Within 360
days after the Closing Date (or, with respect to any Qualified Substitute SBA
Loan, within 360 days after the assignment thereof), the Indenture Trustee shall
deliver to the Servicer, the Sellers, the SBA, the Rating Agencies and any
Noteholder who requests a copy from the Indenture Trustee a final certification
in the form attached hereto as Exhibit F-1 evidencing the completeness of the
Indenture Trustee's Document Files.
(b) If the Indenture Trustee during the process of reviewing
the Indenture Trustee's Document Files finds any document constituting a part of
an Indenture Trustee's Document File which is not properly executed, has not
been received, is unrelated to an SBA Loan identified in the SBA Loan Schedule,
or does not conform in a material respect to the requirements of Section 2.04 or
the description thereof as set forth in the SBA Loan Schedule, the Indenture
Trustee shall promptly so notify the Company and the Servicer. In performing any
such review, the Indenture Trustee may conclusively rely on the Company as to
the purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Indenture Trustee's review of the SBA Files is
limited solely to confirming that the documents listed in Section 2.04 have been
executed and received and relate to the SBA Loans identified in the SBA Loan
Schedule. The Company agrees to use reasonable efforts to remedy a material
defect in a document constituting part of an SBA File of which it is so notified
by the Indenture Trustee. If, however, within 60 days after the Indenture
Trustee's notice to it respecting such material defect the Company has not
remedied the defect and such defect materially and adversely affects the value
of the related SBA Loan, the Company will (i) substitute in lieu of such SBA
Loan a Qualified Substitute SBA Loan in the manner and subject to the conditions
set forth in Section 3.03 or (ii) purchase the Unguaranteed Interest of such SBA
Loan at a purchase price equal to the Principal Balance of such Unguaranteed
Interest as of the date of purchase, plus 30 days' interest on such Principal
Balance, computed at the Adjusted SBA Loan Remittance Rate as of the next
succeeding Determination Date, plus any accrued unpaid Required Holdback
Amounts, Monthly Advances and Servicing Advances reimbursable to the Servicer
with respect to such SBA Loan, which purchase price shall be deposited in the
Principal and Interest Account on the next succeeding Determination Date.
(c) Upon receipt by the Indenture Trustee of a certification
of a Servicing Officer of the Servicer of such purchase or substitution and, as
applicable, the deposit of the amounts described in subsection (b)(ii) above (or
the related Substitution Adjustment, if any), in the Principal and Interest
Account (which certification shall be in the form of Exhibit I hereto), the
Indenture Trustee shall release to the Servicer for release to the Company the
related Indenture Trustee's Document File with respect to such purchased or
substituted Unguaranteed Interest and the Indenture Trustee and the Trust shall
execute, without recourse, and deliver such instruments of transfer necessary to
transfer such SBA Loan to the Company. All costs of any such transfer shall be
borne by the Servicer.
7
14
(d) If in connection with taking any action the Servicer
requires any item constituting part of the Indenture Trustee's Document File, or
the release from the lien of the related SBA Loan of all or part of any
Mortgaged Property or other Collateral, the Servicer shall deliver to the
Indenture Trustee a certificate to such effect in the form attached as Exhibit I
hereto. The Servicer shall comply with the SBA Rules and Regulations in
connection with such action, including the giving of any necessary notice. Upon
receipt of such certification, the Indenture Trustee shall deliver to the
Servicer the requested documentation and the Indenture Trustee shall execute,
without recourse, and deliver such instruments of transfer necessary to release
all or the requested part of the Mortgaged Property or other Collateral from the
lien of the related SBA Loan.
On the Remittance Date in March of each year, the Indenture Trustee
shall deliver to the Sellers, and the Servicer a certification detailing all
transactions with respect to the SBA Loans for which the Indenture Trustee holds
an Indenture Trustee's Document File pursuant to this Agreement during the prior
calendar year. Such certification shall list all Indenture Trustee's Document
Files which were released by or returned to the Indenture Trustee or the FTA
during the prior calendar year, the date of such release or return and the
reason for such release or return.
Section 2.06 [Reserved].
Section 2.07 [Reserved].
Section 2.08 Fees and Expenses of the Owner Trustee and the
Indenture Trustee.
The fees and expenses of the Owner Trustee in its individual capacity
and the Indenture Trustee including (i) the annual fees of the Owner Trustee in
its individual capacity and the Indenture Trustee and (ii) any other fees and
expenses to which the Owner Trustee in its individual capacity and the Indenture
Trustee are entitled shall be paid from the Expense Account in the manner set
forth in Section 5.03 hereof; provided, however, that the Company shall be
liable for any expenses of the Trust Fund incurred prior to the Closing Date.
The Servicer, the Indenture Trustee and the Trust hereby covenant with the
Noteholders and the Certificateholders that every material contract or other
material agreement entered into by the Trust, the Indenture Trustee, or the
Servicer, acting as attorney-in-fact for the Indenture Trustee or the Trust, on
behalf of the Trust Fund shall expressly state therein that no Noteholder or
Certificateholder shall be personally liable in connection with such contract or
agreement.
Section 2.09 Transfer and Conveyance of the Subsequent SBA Loans.
(a) Subject to the conditions set forth in paragraph (b)
below, in consideration of the Indenture Trustee's delivery on the related
Subsequent Transfer Dates to or upon the order of the Company of all or a
portion of the balance of funds in the Pre-Funding Account pursuant to Section
5.04(b), the Company shall on any Subsequent Transfer Date sell, transfer,
assign, set over and otherwise convey without recourse, to the Trust all right,
title and interest of the Company in and to the Unguaranteed Interest of each
Subsequent SBA Loan listed on the SBA Loan Schedule delivered by the Company on
such Subsequent Transfer Date, all its right, title and interest in and to
principal collected and interest accruing on the Unguaranteed Interest of each
such Subsequent SBA Loan on and after the related Subsequent Cut-Off Date and
all its right, title
8
15
and interest in the Unguaranteed Interest in all insurance policies; provided,
however, that the Company reserves, and retains, all its right, title and
interest in and to principal (including Principal Prepayments) collected and
interest accruing on each such Subsequent SBA Loan prior to the related
Subsequent Cut-Off Date. The transfer by the Company of the Unguaranteed
Interest of the Subsequent SBA Loans set forth on the SBA Loan Schedule to the
Trust shall be absolute and shall be intended by all parties hereto to be
treated as a sale by the Company.
The amount released from the Pre-Funding Account shall be one-hundred
percent (100%) of the aggregate Principal Balances as of the related Subsequent
Cut-Off Date of the Subsequent SBA Loans so transferred on the related
Subsequent Transfer Date.
(b) The Company shall transfer to the Trust the Unguaranteed
Interest of the Subsequent SBA Loans and the other property and rights related
thereto described in paragraph (a) above only upon the satisfaction of each of
the following conditions on or prior to the related Subsequent Transfer Date:
(i) the Company shall have provided the Indenture
Trustee with an Addition Notice and shall have provided any
information reasonably requested by it with respect to the
Subsequent SBA Loans;
(ii) the Company shall have delivered to the
Indenture Trustee a duly executed written assignment
(including an acceptance by the Indenture Trustee) that shall
include SBA Loan Schedules, listing the Subsequent SBA Loans
and any other exhibits listed thereon;
(iii) the Company shall have deposited in the
Principal and Interest Account all collections in respect of
the Subsequent SBA Loans received on or after the related
Subsequent Cut-Off Date;
(iv) as of each Subsequent Transfer Date, the Company
was not insolvent nor will it have been made insolvent by such
transfer nor is it aware of any pending insolvency;
(v) such addition will not result in a material
adverse tax consequence to the Trust or the Holders of the
Notes and the Certificates;
(vi) the Funding Period shall not have terminated;
(vii) the Company shall have delivered to the
Indenture Trustee an Officer's Certificate confirming the
satisfaction of each condition precedent specified in this
paragraph (b) and in the related Subsequent Transfer
Agreement;
9
16
(viii) the Company shall have delivered to the Rating
Agencies and the Indenture Trustee, Opinions of Counsel with
respect to the transfer of the Subsequent SBA Loans
substantially in the form of (or otherwise conforming or
giving effect to the conclusions of) the Opinions of Counsel
delivered to the Indenture Trustee on the Closing Date
(bankruptcy, corporate and tax opinions);
(ix) the FTA shall have delivered, pursuant to the
Multi-Party Agreement, an acknowledgment of receipt of the SBA
Note relating to such SBA Loan in the form attached as Exhibit
1 to the Multi-Party Agreement; and
(x) such addition will not cause the Principal
Balance of SBA Loans secured by accounts receivable and
inventory to be greater than 30% of the aggregate Principal
Balance of the SBA Loans.
(c) The obligation of the Trust to purchase the Unguaranteed
Interest of a Subsequent SBA Loan on any Subsequent Transfer Date is subject to
the requirement, as evidenced by a certificate from a Responsible Officer of the
Company, that such Subsequent SBA Loan conforms in all material respects to the
representations and warranties concerning the individual Initial SBA Loans set
forth in Sections 3.01 and 3.02 (except that any reference therein to the
Cut-Off Date shall be deemed a reference to the applicable Subsequent Cut-Off
Date) and that the inclusion of all Subsequent SBA Loans being transferred to
the Trust on such Subsequent Transfer Date will not change, in any material
respect, the characteristics of the Initial SBA Loans, in the aggregate, set
forth in Sections 3.01 and 3.02 or in the Private Placement Memorandum under the
headings "Summary of Terms -- The SBA Loan Pool" and "The SBA Loan Pool."
(d) In connection with the transfer and assignment of the
Subsequent SBA Loans, the Company agrees to satisfy the conditions set forth in
Sections 2.01, 2.02, 2.03, 2.04 and 2.05.
(e) In connection with each Subsequent Transfer Date, on the
Remittance Dates during the Funding Period and the Special Remittance Date, the
Company shall determine, and the Indenture Trustee shall cooperate with the
Company in determining (i) the amount and correct dispositions of the
Capitalized Interest Requirements and Pre-Funding Earnings and (ii) any other
necessary matters in connection with the administration of the Pre-Funding
Account and of the Capitalized Interest Account. If any amounts are incorrectly
released to the Company from the Capitalized Interest Account, the Company shall
immediately repay such amounts to the Indenture Trustee.
(f) No later than February 14, 2001, the Company shall obtain
a letter from an independent accountant stating whether or not the
characteristics of the Subsequent SBA Loans conform to the characteristics set
forth in the Private Placement Memorandum under the heading "The SBA Loan
Pool--Subsequent SBA Loans".
10
17
Section 2.10 Optional Purchase of Defaulted SBA Loans.
The Servicer shall have the right, but not the obligation, to purchase
the Unguaranteed Interest of any Defaulted SBA Loan for a purchase price equal
to the Principal Balance of such Unguaranteed Interest as of the date of
repurchase, plus 30 days' interest on such Principal Balance, computed at the
Adjusted SBA Loan Remittance Rate as of the next succeeding Determination Date,
plus any accrued unpaid Servicing Fees, Monthly Advances and Servicing Advances
reimbursable to the Servicer, which purchase price shall be deposited in the
Principal and Interest Account on the next succeeding Determination Date. Any
such repurchase shall be accomplished in the manner specified in Section
2.05(b), and the release provisions of Section 2.05(c) shall also apply thereto.
In no event shall the aggregate Principal Balance of the Unguaranteed Interests
of all Defaulted SBA Loans purchased pursuant to this Section 2.10 exceed 10.0%
of the sum of (i) the Original Pool Principal Balance and (ii) the Original
Pre-Funded Amount.
11
18
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations of the Company.
The Company hereby represents and warrants to the Indenture Trustee,
the Owner Trustee, the Certificateholders and the Noteholders as of the Closing
Date:
(a) The Company is a Connecticut chartered bank and trust
company duly organized and validly existing under the laws of the State of
Connecticut and has all licenses necessary to carry on its business as now being
conducted and is licensed and qualified in each state where the laws of such
state require licensing or qualification in order to conduct business of the
type conducted by the Company and perform its obligations hereunder; the Company
has all requisite power and authority to execute and deliver this Agreement and
each other Basic Document to which it is a party and to perform in accordance
herewith and therewith; the execution, delivery and performance of this
Agreement and each other Basic Document to which it is a party (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Company and the consummation of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action; this
Agreement and each other Basic Document to which it is a party evidence the
valid, binding and enforceable obligations of the Company; and all requisite
corporate action has been taken by the Company to make this Agreement and each
other Basic Document to which it is a party valid, binding and enforceable upon
the Company in accordance with its respective terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally or the application of
equitable principles in any proceeding, whether at law or in equity, none of
which will affect the ownership of the Unguaranteed Interests in the SBA Loans
by the Trust;
(b) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and licenses
required to be taken, given or obtained, as the case may be, by or from any
federal, state or other governmental authority or agency (other than any such
actions, approvals, etc., under any state securities laws, real estate
syndication or "Blue Sky" statutes, as to which the Company makes no such
representation or warranty), that are necessary or advisable in connection with
the purchase and sale of the Notes and the execution and delivery by the Company
of the documents to which it is a party, have been duly taken, given or
obtained, as the case may be, are in full force and effect on the date hereof,
are not subject to any pending proceedings or appeals (administrative, judicial
or otherwise) and either the time within which any appeal therefrom may be taken
or review thereof may be obtained has expired or no review thereof may be
obtained or appeal therefrom taken, and are adequate to authorize the
consummation of the transactions contemplated by this Agreement and each other
Basic Document to which it is a party and the other documents on the part of the
Company and the performance by the Company of its obligations under this
Agreement and the other Basic Documents to which it is a party;
12
19
(c) The consummation of the transactions contemplated by this
Agreement and the other Basic Documents to which the Company is a party will not
result in the breach of any terms or provisions of the articles of association
or by-laws of the Company 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 material agreement, indenture or loan or credit
agreement or other material instrument to which the Company or its property is
subject, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject;
(d) Neither this Agreement or any other Basic Document to
which the Company is a party nor any statement, report or other document
furnished or to be furnished pursuant to this Agreement or any other Basic
Document to which the Company is a party or in connection with the transactions
contemplated hereby and thereby contains any untrue statement of material fact
or omits to state a material fact necessary to make the statements contained
herein or therein not misleading in light of the circumstances under which they
were made;
(e) The Company does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant contained in
this Agreement or any other Basic Document to which the Company is a party;
(f) There is no action, suit, proceeding or investigation
pending or, to the best of the Company's knowledge, threatened against the
Company which, either in any one instance or in the aggregate, may (i) result in
any material adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment of the right
or ability of the Company to carry on its business substantially as now
conducted, or in any material liability on the part of the Company or of any
action taken or to be taken in connection with the obligations of the Company
contemplated herein, or which would be likely to impair materially the ability
of the Company to perform under the terms of this Agreement or any other Basic
Document to which the Company is a party or (ii) which would draw into question
the validity of this Agreement or any other Basic Document to which the Company
is a party or the SBA Loans;
(g) The Trust will not constitute an "investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(h) The Company is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Company or its properties or might have consequences that
would materially and adversely affect its performance hereunder;
(i) The Company is Well Capitalized as defined in 12 CFR Part
325;
(j) The transfer, assignment and conveyance of the SBA Notes
and the Mortgages by the Company pursuant to this Agreement are not subject to
the bulk transfer laws
13
20
or any similar statutory provisions in effect in any applicable jurisdiction and
do not violate the SBA Rules and Regulations;
(k) The origination and collection practices used by the
Company with respect to each SBA Note and Mortgage have been in all material
respects legal, prudent and customary in the SBA loan origination and servicing
business;
(l) Each SBA Loan listed on Exhibit H-1 was selected from
among the existing SBA loans in the Company's portfolio at the date hereof, in a
manner not designed to adversely affect the Noteholders or the
Certificateholders;
(m) The Company received fair consideration and reasonably
equivalent value in exchange for the sale of the Unguaranteed Interests in the
SBA Loans listed on Exhibit H-1;
(n) Neither the Company nor any of its affiliates sold any
interest in any SBA Loan with any intent to hinder, delay or defraud any of
their respective creditors;
(o) The Company is solvent, and the Company will not be
rendered insolvent as a result of the transfer of the Unguaranteed Interests in
the SBA Loans to the Trust or the sale of the Notes;
(p) The chief executive office and legal name of the Company
is as set forth on the respective UCC-1 financing statement filed on behalf of
the Company pursuant to Section 2.04, such office is the place where the Company
is "located" for the purposes of Section 9-103(3)(d) of the Uniform Commercial
Code as in effect in the State of New York, and neither the location of such
office nor the legal name of the Company has changed in the past four months;
(q) The Company will treat the transfer of the SBA Loans as a
sale for accounting purposes;
(r) The statements contained in the Private Placement
Memorandum which describe the Company or the SBA Loans or matters or activities
for which the Company is responsible in accordance with the Private Placement
Memorandum, this Agreement and all documents referred to therein or herein or
delivered in connection therewith or herewith, or which are attributable to the
Company therein or herein are true and correct in all material respects, and the
Private Placement Memorandum does not contain any untrue statement of a material
fact with respect to the Company or the SBA Loans and does not omit to state a
material fact necessary to make the statements contained therein with respect to
the Company or the SBA Loans not misleading in light of the circumstances under
which they were made. The Company is not aware that the Private Placement
Memorandum contains any untrue statement of a material fact or omits to state
any material fact necessary to make the statements contained therein not
misleading in light of the circumstances under which they were made. There is no
fact peculiar to the Company or the SBA Loans and known to the Company that
materially adversely affects or in the future may (so far as the Company can now
reasonably foresee) materially adversely
14
21
affect the Company or the SBA Loans that has not been set forth in the Private
Placement Memorandum; and
(s) No Noteholder or Certificateholder is subject to
Connecticut state licensing requirements solely by virtue of holding the Notes
or the Certificates.
Section 3.02 Individual SBA Loans.
The Company hereby represents and warrants to the Indenture Trustee,
the Noteholders, the Owner Trustee and the Certificateholders, with respect to
each SBA Loan as of the Closing Date, or with respect to each Subsequent SBA
Loan, as of the related Subsequent Transfer Date:
(a) The information with respect to each SBA Loan set forth in
the SBA Loan Schedule is true and correct;
(b) All of the original or certified documentation set forth
in Section 2.04 (including all material documents related thereto) has been or
will be delivered to the Indenture Trustee on the Closing Date or as otherwise
provided in Section 2.04;
(c) Each Mortgaged Property serving as the primary Collateral
for an SBA Loan is improved by a Commercial Property or a Residential Property
and does not constitute other than real property under state law;
(d) Each SBA Loan was originated and underwritten, or
purchased and re-underwritten by the Company and each SBA Loan is being serviced
by the Company, in its capacity as Servicer;
(e) Each SBA Loan is an SBA Section 7(a) Loan;
(f) The SBA Loan Interest Rate for each SBA Loan is either a
fixed rate or adjusts monthly or quarterly to equal the then applicable prime
rate plus the margin (if applicable) set forth in the related SBA Note. Each SBA
Note will provide for a schedule of Monthly Payments (which, for adjustable rate
SBA Loans, will adjust monthly or quarterly) payable in United States dollars
which are, if timely paid, sufficient to fully amortize the principal balance of
such SBA Loan on its respective maturity date;
(g) With respect to those SBA Loans secured by a Mortgaged
Property, each Mortgage is a valid and subsisting lien of record on the
Mortgaged Property subject only to any applicable Prior Liens on such Mortgaged
Property and subject in all cases to such exceptions that are generally
acceptable to banking institutions in connection with their regular commercial
lending activities, and such other exceptions to which similar properties are
commonly subject and which do not individually, or in the aggregate, materially
and adversely affect the benefits of the security intended to be provided by
such Mortgage;
15
22
(h) Immediately prior to the transfer and assignment herein
contemplated, each Seller held good and indefeasible title to, and was the sole
owner of, the Unguaranteed Interest of each SBA Loan conveyed by such Seller
subject to no liens, charges, mortgages, encumbrances or rights of others except
liens which will be released simultaneously with such transfer and assignment;
and immediately upon the transfer and assignment herein contemplated, the Trust
will hold good and indefeasible title, to, and be the sole owner of, the
Unguaranteed Interest of each SBA Loan subject to no liens, charges, mortgages,
encumbrances or rights of others except the interests of the SBA, the lien
granted to the Indenture Trustee or liens which will be released simultaneously
with such transfer and assignment;
(i) No SBA Loan is more than 30 days delinquent in payment;
(j) To the best of the Company's knowledge, there is no
delinquent tax or assessment lien on any Mortgaged Property which is the primary
Collateral for the related SBA Loan, and each Mortgaged Property is free of
material damage and is in good repair;
(k) No SBA Loan is 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 SBA Note or any related Mortgage, or the
exercise of any right thereunder, render either the SBA Note or any related
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;
(l) Each SBA Loan at the time it was made complied, and as of
the Closing Date complies, in all material respects with applicable state and
federal laws and regulations, including, without limitation, usury, equal credit
opportunity, disclosure and recording laws and the SBA Rules and Regulations;
(m) There is only one originally signed SBA Note for each SBA
Loan, which SBA Note has been delivered to the FTA;
(n) Pursuant to the SBA Rules and Regulations, the Company
requires that the improvements upon each Mortgaged Property are covered by a
valid and existing hazard insurance policy with a generally acceptable carrier
that provides for fire and extended coverage representing coverage described in
Section 4.07;
(o) Pursuant to the SBA Rules and Regulations, the Company
requires that if a Mortgaged Property is in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing coverage
described in Section 4.07;
(p) Each SBA Note, any related Mortgage and any other
agreement pursuant to which Collateral is pledged as security for the related
SBA Loan is the legal, valid and binding obligation of the maker thereof and is
enforceable in accordance with its terms, except only as
16
23
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether considered in a
proceeding or action in equity or at law);
(q) The Company has caused and will cause to be performed any
and all acts reasonably required to be performed to preserve the rights and
remedies of the Indenture Trustee and the Owner Trustee in any insurance
policies applicable to the SBA Loans including, without limitation, in each
case, any necessary notifications of insurers, assignments of policies or
interests therein, and establishments of co-insured, joint loss payee and
mortgagee rights in favor of the Indenture Trustee or the Company, respectively;
(r) Each original Mortgage was recorded, and all subsequent
assignments of the original Mortgage have been recorded in the appropriate
jurisdictions wherein such recordation is necessary to perfect the lien thereof
as against creditors of the Company (or, subject to Section 2.04 hereof, are in
the process of being recorded);
(s) No SBA Loan has an original term to maturity exceeding 306
months;
(t) The terms of the SBA Note and the related Mortgage or
other security agreement pursuant to which Collateral was pledged have not been
impaired, altered or modified in any respect, except by a written instrument
which has been recorded, if necessary, to protect the interest of the SBA, the
Noteholders and the Certificateholders and which has been delivered to the
Indenture Trustee;
(u) There are no material defaults in complying with the terms
of any applicable Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable;
(v) There is no proceeding pending or threatened for the total
or partial condemnation of any Mortgaged Property, nor is such a proceeding
currently occurring, and such property 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 SBA Loan or
the use for which the premises were intended;
(w) At the time of origination of an SBA Loan, in all
instances where commercial real property serves as the primary Collateral for
such SBA Loan, the related Mortgaged Property was free of contamination from
toxic substances or hazardous wastes requiring action under applicable laws or
is subject to ongoing environmental rehabilitation approved by the SBA, and as
of the Cut-Off Date (or in the case of the Subsequent SBA Loans, the Subsequent
Cut-Off Date), the Company has no knowledge of any such contamination from toxic
substances or hazardous waste material on any Mortgaged Property unless such
items are
17
24
below action levels or such Mortgaged Property is subject to ongoing
environmental rehabilitation approved by the SBA;
(x) The proceeds of the SBA Loan have been fully disbursed,
and there is no obligation on the part of the Company to make future advances
thereunder and the Guaranteed Portion of the SBA Loan has been sold in the
secondary market pursuant to SBA Form 1086. Any and all requirements as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing or recording the SBA Loans were
paid;
(y) There is no obligation on the part of the Company or any
other party (except for any guarantor of an SBA Loan) to make Monthly Payments
in addition to those made by the Obligor;
(z) No statement, report or other document signed by the
Company constituting a part of the SBA File contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained therein not misleading in light of the circumstances under which they
were made;
(aa) With respect to each Mortgage constituting 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 such Mortgage, and
no fees or expenses are or will become payable by the Noteholders and/or the
Certificateholders to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Obligor;
(bb) No SBA Loan has a shared appreciation feature, or other
contingent interest feature;
(cc) With respect to each SBA Loan secured by a Mortgaged
Property or other Collateral and that is not a first priority lien, either (i)
no consent for the SBA Loan is required by the holder of any related Prior Lien
or (ii) such consent has been obtained;
(dd) Each SBA Loan was originated to a business located in the
jurisdiction identified in the SBA Loan Schedule and the collateral securing
each SBA Loan is located in the United States;
(ee) All parties which have had any interest in the SBA Loan,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period
in which they held and disposed of such interest, were) (1) in compliance with
any and all applicable licensing requirements of the laws of the state wherein
any Mortgaged Property is located, and (2)(A) organized under the laws of such
state, or (B) qualified to do business in such state to the extent required, or
(C) federal savings and loan associations or national banks having principal
offices in such state, or (D) not doing business in such state;
18
25
(ff) Any related Mortgage contains customary and enforceable
provisions in accordance with the SBA Rules and Regulations which render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure. There is no homestead or other exemption
available to the Mortgagor which would materially interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage;
(gg) There is no default, breach, violation or event of
acceleration existing under the SBA 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
Company, has not waived any default, breach, violation or event of acceleration;
(hh) All parties to the SBA Note and any related Mortgage or
other document pursuant to which Collateral was pledged had legal capacity to
execute the SBA Note and any such Mortgage or other document and each SBA Note
and Mortgage or other document have been duly and properly executed by such
parties;
(ii) Each Initial SBA Loan was (and each Subsequent SBA Loan
will be) originated and underwritten or purchased and reunderwritten by the
Company in accordance with the underwriting criteria set forth in the Private
Placement Memorandum;
(jj) With respect to those SBA Loans secured by Collateral
other than a Mortgaged Property, the related SBA Note, security agreements, if
any, and UCC-1 filed with respect to such Collateral creates a valid and
subsisting lien of record on such Collateral subject only to any Prior Liens, if
any, on such Collateral and subject in all cases to such exceptions that are
generally acceptable to lending institutions in connection with their regular
commercial lending activities, and such other exceptions to which similar
Collateral is commonly subject and which do not individually, or in the
aggregate, materially and adversely affect the benefits of the security intended
to be provided by such SBA Note, security agreement and UCC-1;
(kk) To the best of Company's knowledge, there are no
governmental proceedings or investigations pending or threatened which would
adversely affect payment on the SBA Loans;
(ll) Each SBA Loan qualifies to be guaranteed by the SBA;
(mm) Each SBA Loan conforms, and all such SBA Loans in the
aggregate conform in all material respects, to the description thereof set forth
in the Private Placement Memorandum;
(nn) All amounts received on or after the Cut-Off Date (or,
with respect to the Subsequent SBA Loans, on or after the related Subsequent
Cut-Off Date) with respect to the SBA Loans have been, to the extent required by
this Agreement, deposited into the Principal and
19
26
Interest Account and are, as of the Closing Date (or with respect to the
Subsequent SBA Loans, as of the related Subsequent Transfer Date), in the
Principal and Interest Account; and
(oo) With respect to 55% or more of the SBA Loans (measured by
Principal Balance as of the Closing Date or, in the case of the Subsequent SBA
Loans, the Subsequent Closing Date), either (i) the SBA Loan is not and has
never been secured by an interest in real property or any real estate mortgages,
or (ii) the SBA Loan is secured by an interest in real property and/or real
estate mortgages and (x) the fair market value of the real property securing the
SBA Loan, after reduction for the amount of any lien that is senior to the SBA
Loan and a proportionate amount of any lien that is pari passu with the SBA
Loan, was less than 80% of the amount of the SBA Loan at the time the SBA Loan
was originated; (y) less than 66% of the net proceeds of the SBA Loan were used
to acquire, improve, or protect an interest in real property that at the time of
origination was the only security for the SBA Loan (disregarding any third party
credit enhancements and loan guarantees made by federal, state, local
governments or agencies), and the Company has no knowledge or reason to believe
that the net proceeds of the SBA Loan were used to refinance one or more loans
the proceeds of which were used to acquire, improve, or protect an interest in
real property; and (z) the SBA Loan has not been modified significantly since
its origination.
Section 3.03 Purchase and Substitution of Defective
SBA Loans.
It is understood and agreed that the representations and warranties set
forth in Sections 3.01, 3.02 and 3.04 shall survive delivery of the Notes to the
Noteholders and the Certificates to the Certificateholders. Upon discovery by
the Servicer, any Subservicer, a Responsible Officer of the Owner Trustee or the
Indenture Trustee of a breach of any of such representations and warranties
which materially and adversely affects the value of the SBA Loans or the
interest of the Noteholders, the Certificateholders or the SBA therein or which
materially and adversely affects the interests of the Noteholders, the
Certificateholders or the SBA in the related SBA Loan in the case of a
representation and warranty relating to a particular SBA Loan (notwithstanding
that such representation and warranty was made to the Company's best knowledge),
the party discovering such breach shall give prompt written notice to the
others. Within 60 days of the earlier of its discovery or its receipt of notice
of any breach of a representation or warranty, the Company shall (a) promptly
cure such breach in all material respects, (b) purchase the Unguaranteed
Interest in such SBA Loan by depositing in the Principal and Interest Account,
on the next succeeding Determination Date, an amount in the manner specified in
Section 2.05(b), or (c) remove such SBA Loan from the Trust Fund (in which case
it shall become a Deleted SBA Loan) and substitute one or more Qualified
Substitute SBA Loans. Any such substitution shall be accompanied by payment by
the Company of the Substitution Adjustment, if any.
As to any Deleted SBA Loan for which the Company substitutes a
Qualified Substitute SBA Loan or Loans, the Servicer shall effect such
substitution by delivering to the Indenture Trustee a certification in the form
attached hereto as Exhibit I, executed by a Servicing Officer,
20
27
and shall also deliver to the Indenture Trustee, the documents constituting the
Indenture Trustee's Document File for such Qualified Substitute SBA Loan or
Loans.
The Servicer shall deposit in the Principal and Interest Account the
Unguaranteed Percentage of all payments of principal received in connection with
such Qualified Substitute SBA Loan or Loans after the date of such substitution
together with all interest (net of the portion thereof required to be paid to
the related Registered Holder, the FTA's Fee, the Required Holdback Amount with
respect to each SBA Loan and the Additional Fee with respect to each Additional
Fee SBA Loan). Monthly Payments received with respect to Qualified Substitute
SBA Loans on or before the date of substitution will be retained by the Company.
The Trust Fund will own all payments received with respect to the Unguaranteed
Interest on the Deleted SBA Loan on or before the date of substitution, and the
Seller shall thereafter be entitled to retain all amounts subsequently received
in respect of such Deleted SBA Loan. The Servicer shall give written notice to
the Indenture Trustee that such substitution has taken place and shall amend the
SBA Loan Schedule to reflect the removal of such Deleted SBA Loan from the terms
of this Agreement and the substitution of the Qualified Substitute SBA Loan or
Loans. Upon such substitution, such Qualified Substitute SBA Loan or Loans shall
be subject to the terms of this Agreement in all respects, including Sections
2.04 and 2.05, and the Company shall be deemed to have made with respect to such
Qualified Substitute SBA Loan or Loans, as of the date of substitution, the
covenants, representations and warranties set forth in Sections 3.01 and 3.02.
On the date of such substitution, the Company will remit to the Servicer, and
the Servicer will deposit into the Principal and Interest Account, an amount
equal to the Substitution Adjustment.
In addition to the cure, purchase and substitution obligation in
Sections 2.04, 2.05 and 3.03, the Company shall indemnify and hold harmless the
Trust, the Indenture Trustee, the Noteholders and the Certificateholders against
any loss, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach of the Company's representations and warranties contained in this
Agreement. It is understood and agreed that the obligations of the Company set
forth in Sections 2.04, 2.05 and 3.03 to cure, purchase or substitute for a
defective SBA Loan and to indemnify the Noteholders, the Certificateholders, the
Indenture Trustee and the Owner Trustee as provided in Sections 2.04, 2.05 and
3.03 constitute the sole remedies of the Indenture Trustee, the Noteholders, the
Certificateholders and the Owner Trustee, respecting a breach of the foregoing
representations and warranties.
Any cause of action against the Servicer or the Company relating to or
arising out of the breach of any representations and warranties made in Sections
2.05, 3.01, 3.02 or 3.04 shall accrue as to any SBA Loan upon (i) discovery of
such breach by any party and notice thereof to the Company and or notice thereof
by the Company to the Indenture Trustee, (ii) failure by the Company to cure
such breach or purchase or substitute such SBA Loan as specified above, and
(iii) demand upon the Company by the Indenture Trustee for all amounts payable
hereunder in respect of such SBA Loan.
21
28
Section 3.04 Representations Concerning Funding.
The Company hereby represents and warrants to the Indenture Trustee,
the Noteholders, the Owner Trustee and the Certificateholders as of the Closing
Date:
(a) Funding is a business trust, and is duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) Funding has good and marketable title to the Unguaranteed
Interest in each SBA Loan listed on Exhibit H-2 free and clear of any lien
(other than liens to be released upon consummation of the transactions
contemplated hereby) and Funding has the authority to sell the Unguaranteed
Interest in the SBA Loans listed on Exhibit H-2 to the Trust as contemplated in
this Agreement;
(c) Funding received fair consideration and reasonably
equivalent value in exchange for the sale of the Unguaranteed Interest of the
SBA Loans listed on Exhibit H-2;
(d) All requisite action has been taken by Funding to make
this Agreement valid, binding and enforceable upon Funding in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally or the application of equitable principles in any proceeding, whether
at law or in equity, none of which will affect the ownership of the SBA Loans by
the Trust;
(e) The consummation of the transactions contemplated by this
Agreement will not result in the breach of any terms or provisions of the
Certificate of Formation of Funding 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 material agreement, indenture or loan
or credit agreement or other material instrument to which Funding or its
property is subject, or result in the violation of any law, rule, regulation,
order, judgment or decree to which Funding or its property is subject;
(f) There is no action, order, suit, proceeding or
investigation pending or, to the best of Funding's knowledge, threatened against
Funding which, either in any one instance or in the aggregate, may (i) result in
any material adverse change in the business, operations, financial condition,
properties or assets of Funding or in any material impairment of the right or
ability of Funding to carry on its business substantially as now conducted, or
in any material liability on the part of Funding or of any action taken or to be
taken in connection with the obligations of Funding contemplated herein, or
which would be likely to impair materially the ability of Funding to perform
under the terms of this Agreement or (ii) which would draw into question the
validity of this Agreement or the SBA Loans;
(g) Funding is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition
22
29
(financial or other) or operations of Funding or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(h) Funding is solvent, and Funding will not be rendered
insolvent as a result of the transfer of the SBA Loans to the Trust or the sale
of the Notes; and
(i) The chief executive office and legal name of Funding is as
set forth on the respective UCC-1 financing statement filed on behalf of Funding
pursuant to Section 2.04(i), such office is the place where Funding is "located"
for the purposes of Section 9-103(3)(d) of the Uniform Commercial Code as in
effect in the State of New York, and neither the location of such office nor the
legal name of Funding has changed in the past four months.
23
30
ARTICLE IV
ADMINISTRATION AND SERVICING OF SBA LOANS
Section 4.01 Duties of the Servicer.
(a) The Servicer, as independent contract servicer for the
Trust, shall service and administer the SBA Loans and shall have full power and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable
and consistent with the terms of this Agreement, the Multi-Party Agreement and
the SBA Rules and Regulations. The Servicer may enter into Subservicing
Agreements for any servicing and administration of SBA Section 7(a) Loans with
any entity approved with prior written consent by the SBA. Any such Subservicing
Agreement must be approved by the SBA and shall be consistent with and not
violate the provisions of this Agreement and the Multi-Party Agreement. The
Servicer shall be entitled to terminate any Subservicing Agreement in accordance
with the terms and conditions of such Subservicing Agreement and to either
itself directly service the related SBA Loans or enter into a Subservicing
Agreement with a successor Subservicer which qualifies hereunder.
(b) Notwithstanding any Subservicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Servicer and a Subservicer or reference to actions taken through a Subservicer
or otherwise, the Servicer shall remain obligated and primarily liable to the
Indenture Trustee, for itself and on behalf of the Noteholders, the SBA and the
Certificateholders for the servicing and administering of the SBA Loans in
accordance with the provisions of this Agreement and the Multi-Party Agreement
and the SBA Rules and Regulations, without diminution of such obligation or
liability by virtue of such Subservicing Agreements or arrangements or by virtue
of indemnification from the Subservicer and to the same extent and under the
same terms and conditions as if the Servicer alone were servicing and
administering the SBA Loans. For purposes of this Agreement, the Servicer shall
be deemed to have received payments on SBA Loans when any Subservicer has
received such payments. The Servicer shall be entitled to enter into any
agreement with a Subservicer for indemnification of the Servicer by such
Subservicer, and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
(c) Any Subservicing Agreement that may be entered into and
any transactions or services relating to the SBA Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Servicer alone, and the Indenture Trustee, the SBA and
Noteholders 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 4.01(d); provided, that SBA shall retain all
claims it may have against any Subservicer that SBA would otherwise have,
including, without limitation, any rights under such Subservicing Agreement, any
other agreements or SBA Rules and Regulations.
(d) In the event the Servicer shall for any reason no longer
be the Servicer, the Indenture Trustee or its designee shall, subject to Section
9.02 hereof and the Multi-Party
24
31
Agreement, thereupon assume all of the rights and obligations of the Servicer
under each Subservicing Agreement that the Servicer may have entered into,
unless the Indenture Trustee is then permitted and elects to terminate any
Subservicing Agreement in accordance with its terms. The Indenture Trustee, its
designee or the successor servicer for the Indenture Trustee shall be deemed to
have assumed all of the Servicer's interest therein and to have replaced the
Servicer as a party to each Subservicing Agreement to the same extent as if the
Subservicing Agreements had been assigned to the assuming party, except that the
Servicer shall not thereby be relieved of any liability or obligations under the
Subservicing Agreements. The Servicer at its expense and without right of
reimbursement therefor, shall, upon request of the Indenture Trustee, deliver to
the assuming party all documents and records relating to each Subservicing
Agreement and the SBA Loans then being serviced and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of the Subservicing Agreements to the assuming
party.
(e) So long as it is consistent with the terms of this
Agreement and the Multi-Party Agreement, the SBA Agreement (as defined in the
Multi-Party Agreement) and the SBA Rules and Regulations, the Servicer may
waive, modify or vary any term of any SBA Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Obligor if in the Servicer's determination such waiver, modification,
postponement or indulgence is not materially adverse to the interests of the
SBA, the Noteholders or the Certificateholders, provided, however, that (unless
(x) the Obligor is in default with respect to the SBA Loan, or such default is,
in the judgment of the Servicer, imminent and (y) the Servicer determines that
any modification would not be considered a new loan for federal income tax
purposes) the Servicer may not permit any modification with respect to any SBA
Loan that would change the SBA Loan Interest Rate, defer (subject to Section
4.12), or forgive the payment of any principal or interest (unless in connection
with the liquidation of the related SBA Loan), or extend the final maturity date
on such SBA Loan without the consent of the SBA, if such consent is then
required by the SBA Rules and Regulations. The Servicer may exercise all
unilateral servicing actions permitted by participating lenders in accordance
with the SBA Rules and Regulations. No costs incurred by the Servicer or any
Subservicer in respect of Servicing Advances shall for the purposes of
distributions to Noteholders be added to the amount owing under the related SBA
Loan. Without limiting the generality of the foregoing, so long as it is
consistent with the SBA Rules and Regulations, the Servicer shall continue, and
is hereby authorized and empowered to execute and deliver on behalf of the
Indenture Trustee, the Owner Trustee, the SBA, each Noteholder and each
Certificateholder, all instruments of satisfaction or cancellation, or of
partial or full release, discharge and all other comparable instruments, with
respect to the SBA Loans and with respect to any Mortgaged Properties or other
Collateral. If reasonably required by the Servicer, the Indenture Trustee, on
behalf of the Trust, shall furnish the Servicer, within 5 Business Days of
receipt of the Servicer's request, with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement. Any such request to
the Indenture Trustee, on behalf of the Trust, shall be accompanied by a
certification in the form of Exhibit I attached hereto signed by a Servicing
Officer.
25
32
The Servicer, in servicing and administering the SBA Loans,
shall employ or cause to be employed procedures (including collection,
foreclosure and Foreclosed Property and Repossessed Collateral management
procedures) and exercise the same care that it customarily employs and exercises
in servicing and administering SBA Loans for its own account and prudent lending
standards, and in accordance with the SBA Rules and Regulations, giving due
consideration to the Noteholders' and the SBA's reliance on the Servicer.
(f) On and after such time as the Indenture Trustee receives
the resignation of, or notice of the removal of, the Servicer from its rights
and obligations under this Agreement, and with respect to resignation pursuant
to Section 8.04, after receipt of the Opinion of Counsel required pursuant to
Section 8.04 addressed to the SBA and the Indenture Trustee, the Indenture
Trustee or its designee shall assume all of the rights and obligations of the
Servicer, subject to Section 9.02 hereof and the Multi-Party Agreement. The
Servicer shall, upon request of the Indenture Trustee but at the expense of the
Servicer, deliver to the Indenture Trustee all documents and records (including
computer tapes and diskettes) relating to the SBA Loans and an accounting of
amounts collected and held by the Servicer and otherwise use its best efforts to
effect the orderly and efficient transfer of servicing rights and obligations to
the assuming party.
(g) The Servicer shall perform the duties of the Issuer and
the Owner Trustee under the Basic Documents. In furtherance of the foregoing,
the Servicer shall consult with the Owner Trustee as the Servicer deems
appropriate regarding the duties of the Issuer and the Owner Trustee under the
Basic Documents. The Servicer shall monitor the performance of the Issuer and
the Owner Trustee and shall advise the Owner Trustee when action is necessary to
comply with the Issuer's or the Owner Trustee's duties under the Basic
Documents. The Servicer shall prepare for execution by the Owner Trustee or
shall cause the preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Basic Documents.
(h) In addition to the duties of the Servicer set forth in
this Agreement or any of the Basic Documents, the Servicer shall perform such
calculations and shall prepare for execution by the Issuer or the Owner Trustee
or shall cause the preparation by other appropriate Persons of all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Issuer to prepare, file or deliver pursuant to state and
federal tax and securities laws. In accordance with the directions of the Issuer
or the Owner Trustee, the Servicer shall administer, perform or supervise the
performance of such other activities in connection with the Issuer as are not
covered by any of the foregoing provisions and as are expressly requested by the
Issuer or the Owner Trustee and are reasonably within the capability of the
Servicer.
(i) Notwithstanding anything in this Agreement or any of the
Basic Documents to the contrary, the Servicer shall be responsible for promptly
notifying the Owner Trustee and the Paying Agent in the event that any
withholding tax is imposed on the Issuer's payments (or allocations of income)
to a Noteholder or a Certificateholder. Any such notice shall be in writing and
specify the amount of any withholding tax required to be withheld by the Owner
Trustee or the Paying Agent pursuant to such provision.
26
33
(j) The Servicer shall prepare and file, on behalf of the
Issuer, all tax returns tax elections, financial statements and such annual or
other reports of the Issuer as are necessary for the preparation of tax reports
as provided in the Trust Agreement or required by applicable law. All tax
returns will be signed by the Servicer on behalf of the Issuer.
(k) The Servicer shall maintain appropriate books of account
and records relating to services performed under this Agreement, which books of
account and records shall be accessible for inspection by the Owner Trustee at
any time during normal business hours.
(l) The Servicer shall furnish to the Indenture Trustee and
the Owner Trustee from time to time such additional information regarding the
Issuer or the Basic Documents as the Indenture Trustee and the Owner Trustee
shall reasonably request.
(m) For so long as any of the Notes are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) of the Securities
Act, (1) the Servicer will provide or cause to be provided to any holder of such
Notes and any prospective purchaser thereof designated by such a holder, upon
the request of such holder or prospective purchaser, the information required to
be provided to such holder or prospective purchaser by Rule 144A(d)(4) under the
Securities Act; and (2) the Servicer shall update such information from time to
time in order to prevent such information from becoming false and misleading and
will take such other actions as are necessary to ensure that the safe harbor
exemption from the registration requirements of the Securities Act under Rule
144A is and will be available for resales of such Notes conducted in accordance
with Rule 144A.
Section 4.02 Liquidation of SBA Loans.
In the event that any payment due under any SBA Loan and not postponed
pursuant to Section 4.01 is not paid when the same becomes due and payable, or
in the event the Obligor fails to perform any other covenant or obligation under
the SBA Loan, the Servicer in accordance with the SBA Rules and Regulations
shall take such action as it shall deem to be in the best interests of the
Noteholders and the SBA. With respect to any such SBA Loan for which the SBA has
expressed to the Servicer the SBA's desire to assume servicing of such SBA Loan
consistent with the SBA Rules and Regulations, the Indenture Trustee shall, upon
written direction of the Servicer, deliver to the SBA or its designee all or any
portion of the Indenture Trustee's Document File relating to such SBA Loan and
the Indenture Trustee shall execute such documents, including but not limited to
an endorsement of the related SBA Note and an assignment of the related
Mortgage, in each case without recourse, representation or warranty of any kind,
as the Servicer or the SBA shall request. Expenses incurred in connection with
any such action shall be the responsibility of the Servicer and shall not be
chargeable to the Principal and Interest Account or the Note Distribution
Account. Subject to the SBA Rules and Regulations and with the prior written
consent of the SBA (if required by the SBA Rules and Regulations), the Servicer
shall foreclose upon or otherwise comparably effect the ownership of Mortgaged
Properties or other Collateral relating to defaulted SBA Loans for which the
related SBA Loan is still outstanding, as to which no satisfactory arrangements
can be made for
27
34
collection of delinquent payments in accordance with the provisions of Section
4.10. In connection with such foreclosure or other conversion and any other
liquidation action, the Servicer shall exercise collection and foreclosure
procedures with the same degree of care and skill in its exercise or use as it
would exercise with respect to its own affairs, in accordance with prudent
servicing standards, and in accordance with the applicable SBA Rules and
Regulations. Prior to undertaking foreclosure of any Mortgaged Property, the
Servicer must investigate environmental conditions, including, if the Servicer
deems necessary or if required by the SBA Rules and Regulations the performance
of a Phase I and/or Phase II environmental site assessment, to ascertain the
actual or potential presence of any hazardous material on or under such
property. For purposes of this Agreement, the term hazardous material includes
(1) any hazardous substance, as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 U.S.C. 9601-9675, and (2)
petroleum (as that term is defined at 42 U.S.C. Section 6991) including any
derivative, fraction, by-product, constituent or breakdown product thereof, or
additive thereto. In the event that the environmental investigation determines
the existence of any hazardous material on or under the Mortgaged Property in
excess of minimum action levels established by relevant regulatory agencies,
title to such property shall not be taken without prior written approval from
the SBA.
After an SBA Loan has become a Liquidated SBA Loan, the Servicer shall
promptly prepare and forward to the Indenture Trustee and upon request, any
Noteholder, a Liquidation Report, in the form attached hereto as Exhibit J,
detailing the Liquidation Proceeds received from the Liquidated SBA Loan,
expenses incurred with respect thereto, and any loss incurred in connection
therewith.
Section 4.03 Establishment of Principal and Interest Accounts;
Deposits in Principal and Interest Accounts.
(a) The Servicer shall cause to be established and maintained
one or more Principal and Interest Accounts, constituting one or more Eligible
Deposit Accounts, wherein the moneys therein are invested in Permitted
Instruments, titled "First International Bank, as Servicer, in trust for the
registered holders of First International Bank SBA Loan-Backed Notes, Series
2000-2." All funds in such Principal and Interest Accounts shall be insured by
the BIF or SAIF administered by the FDIC to the maximum extent provided by law.
The creation of any Principal and Interest Account shall be evidenced by a
letter agreement in the form of Exhibit C hereto.
A copy of such letter agreement shall be furnished to the
Indenture Trustee, the Owner Trustee and, upon request, the SBA, any Noteholder
or any Certificateholder.
(b) The Servicer and each Subservicer shall deposit without
duplication (within two Business Days of receipt thereof) in the applicable
Principal and Interest Account and retain therein:
28
35
(i) the Unguaranteed Percentage of all payments
received on or after the Cut-Off Date on account of principal
on the SBA Loans, including the Unguaranteed Percentage of all
Excess Payments, Principal Prepayments and Curtailments;
(ii) all payments received on or after the Cut-Off
Date on account of interest on the SBA Loans (net of the
portion thereof required to be paid to the related Registered
Holders, the Required Holdback Amount and the FTA's Fee with
respect to each SBA Loan, the Additional Fee with respect to
each Additional Fee SBA Loan, and other servicing compensation
payable to the Servicer as permitted herein);
(iii) the Unguaranteed Percentage of all Net
Liquidation Proceeds;
(iv) the Unguaranteed Percentage of all Insurance
Proceeds (other than amounts to be applied to restoration or
repair of any related Mortgaged Property, or to be released to
the Obligor in accordance with the Servicer's customary
servicing procedures);
(v) the Unguaranteed Percentage of all Released
Mortgaged Property Proceeds and any other proceeds from any
other Collateral securing the SBA Loans;
(vi) any amounts paid in connection with the purchase
or repurchase of the Unguaranteed Interest of any SBA Loan and
the amount of any Substitution Adjustment received pursuant to
any provision of this Agreement;
(vii) any amount required to be deposited in the
Principal and Interest Account pursuant to Section 4.04 or
4.10; and
(viii) the amount of any losses incurred in
connection with investments of amounts in the Principal and
Interest Account in Permitted Instruments.
(c) The foregoing requirements for deposit in the Principal
and Interest Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments with respect to the
Guaranteed Interest to be paid to the Registered Holders, the Required Holdback
Amount and the FTA's Fee, with respect to each SBA Loan, and additionally the
Additional Fee with respect to each Additional Fee SBA Loan, together with the
difference between any Liquidation Proceeds and the related Net Liquidation
Proceeds and the amount of any related costs or expenses for which SBA or any
Person acting on behalf of SBA is entitled to be reimbursed pursuant to SBA
Rules and Regulations, may not be deposited by the Servicer in the Principal and
Interest Account.
(d) Any interest earnings on funds held in the Principal and
Interest Account paid by a Designated Depository Institution, or investment
earnings in respect of other Permitted
29
36
Instruments in which such funds are invested, shall be for the account of the
Servicer and may only be withdrawn from the Principal and Interest Account by
the Servicer immediately following its monthly remittance to the Indenture
Trustee pursuant to Section 4.04(a). Any reference herein to amounts on deposit
in the Principal and Interest Account shall refer to amounts net of such
investment earnings.
Section 4.04 Permitted Withdrawals From the Principal and Interest
Account.
The Servicer shall withdraw funds from the Principal and Interest
Account first, to withdraw any funds deposited therein that are not required or
permitted to be deposited therein, or were deposited therein in error, and then
for the following purposes:
(a) to effect the remittance to the Indenture Trustee on each
Determination Date for deposit into the Note Distribution Account of the
Available Funds for the related Remittance Date (net of Compensating Interest,
Monthly Advances and amounts then on deposit in the Spread Account and, with
respect to the Determination Dates occurring during the Funding Period, net of
amounts then on deposit in the Pre-Funding Account and Capitalized Interest
Account);
(b) to reimburse itself for any accrued unpaid Required
Holdback Amount allocable to the SBA Loans, unreimbursed Monthly Advances and
for unreimbursed Servicing Advances to the extent deposited in the Principal and
Interest Account (and not netted from Monthly Payments received). The Servicer's
right to reimbursement for unpaid Required Holdback Amounts and, except as
provided in the following sentence, Servicing Advances and Monthly Advances
shall be limited to Liquidation Proceeds, Released Mortgaged Property Proceeds,
Insurance Proceeds and such other amounts as may be collected by the Servicer
from the Obligor or otherwise relating to the SBA Loan in respect of which such
unreimbursed amounts are owed. The Servicer's right to reimbursement for
Servicing Advances and Monthly Advances in excess of such amounts shall be
limited to any late collections of interest received on the SBA Loans generally,
including Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance
Proceeds and any other amounts; provided, however, that the Servicer's right to
such reimbursement pursuant hereto shall be subordinate to the rights of the
Noteholders and the Registered Holders;
(c) to withdraw any amount received from an Obligor that is
recoverable and sought to be recovered as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code in accordance with a
final, nonappealable order of a court having competent jurisdiction;
(d) (i) to make investments in Permitted Instruments and (ii)
to pay to itself, as permitted by Section 4.03(d), interest paid in respect of
Permitted Instruments or by an Eligible Deposit Account on funds deposited in
the Principal and Interest Account;
(e) to pay itself servicing compensation pursuant to Section
6.03 hereof; and
30
37
(f) to clear and terminate the Principal and Interest Account
upon the termination of this Agreement in accordance with Section 10.01.
So long as no default or Servicer Termination Event shall have occurred
and be continuing, and consistent with any requirements of the Code, the
Principal and Interest Accounts shall constitute one or more Eligible Deposit
Accounts meeting the requirements set forth in Section 4.03(a), or the funds
held therein may be invested by the Servicer (to the extent practicable) in
Permitted Instruments, as directed in writing by the Servicer. In either case,
funds in the Principal and Interest Account must be available for withdrawal
without penalty, and any Permitted Instruments must mature not later than the
Business Day immediately preceding the Determination Date next following the
date of such investment (except that if such Permitted Instrument is an
obligation of the institution that maintains such account, then such Permitted
Instrument shall mature not later than such Determination Date) and shall not be
sold or disposed of prior to its maturity. All Permitted Instruments must be
held by or registered in the name of "First International Bank, as Servicer, in
trust for the registered holders of First International Bank SBA Loan-Backed
Notes, Series 2000-2." All interest or other earnings from funds on deposit in
the Principal and Interest Account (or any Permitted Instruments thereof) shall
be the exclusive property of the Servicer, and may be withdrawn from the
Principal and Interest Account pursuant to clause (d) above. The amount of any
losses incurred in connection with the investment of funds in the Principal and
Interest Account in Permitted Instruments shall be deposited in the Principal
and Interest Account by the Servicer from its own funds immediately as realized
without reimbursement therefor.
Section 4.05 [Intentionally Omitted]
Section 4.06 Transfer of Accounts.
The Servicer may, upon written notice to the Indenture Trustee and the
SBA, transfer any Principal and Interest Account to a different Eligible Deposit
Account.
Section 4.07 Maintenance of Hazard Insurance.
The Servicer shall comply with the SBA Rules and Regulations concerning
the issuance and maintenance of fire and hazard insurance with extended coverage
customary in the area where the Mortgaged Property is located. If at origination
of an SBA Loan, to the best of the Servicer's knowledge after reasonable
investigation, the related Mortgaged Property is in an area identified in the
Federal Register by the Flood Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available) consistent with
the SBA Rules and Regulations, the Servicer will require the related Obligor to
purchase a flood insurance policy with a generally acceptable insurance carrier,
in an amount representing coverage not less than the lesser of (i) the full
insurable value of the Mortgaged Property, or (ii) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as amended.
The Servicer shall also maintain, to the extent such insurance is available, and
required by the SBA Rules and Regulations and the Servicer's policies, on
Foreclosed Property constituting real
31
38
property, fire and hazard insurance in the amounts described above and liability
insurance. The Unguaranteed Percentage of any amounts collected by the Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the Mortgaged Property, or to be released to the Obligor in accordance
with the SBA Rules and Regulations, or in respect of liability insurance, to be
applied to the liabilities insured) shall be deposited in the Principal and
Interest Account, subject to withdrawal pursuant to Section 4.04. It is
understood and agreed that no earthquake or other additional insurance need be
required by the Servicer of any Obligor or maintained on Foreclosed 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 losses
payable to the Servicer or its affiliates.
Section 4.08 [Intentionally Omitted].
Section 4.09 Fidelity Bond.
The Servicer shall maintain with a responsible company, and at its own
expense, a blanket fidelity bond and an errors and omissions insurance policy,
in a minimum amount equal to $1,500,000, and a maximum deductible of $100,000,
if commercially available, with coverage on all employees acting in any capacity
requiring such persons to handle funds, money, documents or papers relating to
the SBA Loans ("Servicer Employees"). The fidelity bond shall insure the
Indenture Trustee and the Owner Trustee, their respective officers and employees
against losses resulting from forgery, theft, embezzlement or fraud by such
Servicer Employees. The errors and omissions policy shall insure against losses
resulting from the errors, omissions and negligent acts of such Servicer
employees. No provision of this Section 4.09 requiring such fidelity bond and
errors and omissions insurance shall relieve the Servicer from its duties as set
forth in this Agreement. Upon the request of the Indenture Trustee, the Owner
Trustee, the SBA or any Noteholder or Certificateholder, the Servicer shall
cause to be delivered to the Indenture Trustee, Owner Trustee, the SBA or such
Noteholder or such Certificateholder a certified true copy of such fidelity bond
and insurance policy. The current issuer of such fidelity bond and insurance
policy is The Hartford Underwriters Insurance Company.
Section 4.10 Title, Management and Disposition of Foreclosed
Property.
Except as otherwise required by SBA Rules and Regulations, in the event
that title to a Mortgaged Property or other Collateral is acquired in
foreclosure or by deed in lieu of foreclosure or by other legal process (a
"Foreclosed Property"), the deed or certificate of sale, or the repossessed
Collateral shall be taken in the name of the Indenture Trustee or such other
Person as the SBA may designate in writing, in each case on behalf of the Trust
for the benefit of the Noteholders, the Certificateholders and the SBA, as their
interests may appear under the Multi-Party Agreement dated the date of this
Agreement (or such other name as the SBA may direct).
Unless the servicing of a Foreclosed Property or item of Repossessed
Collateral relating to an SBA Loan is assumed by the SBA pursuant to the SBA
Rules and Regulations, the
32
39
Servicer, subject to Sections 4.01 and 4.02 hereof, shall manage, conserve,
protect and operate each Foreclosed Property or other Repossessed Collateral for
the SBA, the Noteholders and the Certificateholders solely for the purpose of
its prudent and prompt disposition and sale. The Servicer shall, either itself
or through an agent selected by the Servicer, manage, conserve, protect and
operate the Foreclosed Property or other Repossessed Collateral in the same
manner that it manages, conserves, protects and operates other foreclosed or
repossessed property for its own account, and in the same manner that similar
property in the same locality as the Foreclosed Property or other Repossessed
Collateral is managed. The Servicer shall attempt to sell the same (and may
temporarily rent the same) on such terms and conditions as the Servicer deems to
be in the best interest of the SBA, the Noteholders and the Certificateholders.
The Servicer shall cause to be deposited in the Principal and Interest
Account, no later than five Business Days after the receipt thereof, the
Unguaranteed Percentage of all revenues received with respect to the
conservation and disposition of the related Foreclosed Property or other
Repossessed Collateral net of Servicing Advances.
The disposition of Foreclosed Property or other Repossessed Collateral
shall be carried out by the Servicer at such price, and upon such terms and
conditions, as the Servicer, with SBA concurrence (if required by the SBA Rules
and Regulations), deems to be in the best interest of the SBA, the Noteholders
and the Certificateholders. The Unguaranteed Percentage of the proceeds of sale
of the Foreclosed Property or other Repossessed Collateral shall promptly, but
in no event later than two Business Days after receipt, be deposited in the
Principal and Interest Account as received from time to time and, as soon as
practicable thereafter, the expenses of such sale shall be paid by the Servicer
from the netting of Servicer Advances provided for in the preceding paragraph.
The Servicer shall, subject to Section 4.04, reimburse itself for any related
unreimbursed Required Holdback Amounts and unpaid Servicing Fees and
unreimbursed Monthly Advances, and the Servicer shall deposit in the Principal
and Interest Account the net cash proceeds of such sale to be distributed to the
Noteholders in accordance with Section 5.07 hereof.
Section 4.11 [Intentionally Omitted].
Section 4.12 Collection of Certain SBA Loan Payments.
The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the SBA Loans, and shall cause the
Obligor under the SBA Loan, to the extent such procedures shall be consistent
with this Agreement, to comply with the terms and provisions of any applicable
hazard insurance policy. Consistent with the foregoing and the SBA Rules and
Regulations, the Servicer may in its discretion waive or permit to be waived any
fee or charge (other than the Required Holdback Amounts, without the written
consent of the SBA) which the Servicer would be entitled to retain hereunder as
servicing compensation and extend the due date for payments due on an SBA Note
for a period (with respect to each payment as to which the due date is extended)
not greater than 180 days after the initially scheduled due date for such
payment.
33
40
Section 4.13 Access to Certain Documentation and Information
Regarding the SBA Loans.
The Servicer shall provide to the Owner Trustee, the Indenture Trustee,
the SBA, the FDIC, the OCC, the Federal Reserve, the Office of Thrift
Supervision and the supervisory agents and examiners of the foregoing, access to
the documentation regarding the SBA Loans required by applicable local, state
and federal regulations, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the
Servicer designated by it.
34
41
ARTICLE V
PAYMENTS TO THE NOTEHOLDERS
Section 5.01 Establishment of Note Distribution Account;
Deposits in Note Distribution Account; Permitted
Withdrawals from Note Distribution Account.
(a) No later than the Closing Date, the Indenture Trustee will
establish and maintain with itself in its trust department a trust account,
which shall not be interest-bearing, titled "Note Distribution Account, HSBC
Bank USA, as Indenture Trustee for the registered holders of First International
Bank SBA Loan-Backed Notes, Series 2000-2" (the "Note Distribution Account").
The Indenture Trustee shall, promptly upon receipt, deposit in the Note
Distribution Account and retain therein:
(i) the Available Funds (net of the amount of Monthly
Advances and Compensating Interest deposited pursuant to
subclause (ii) below and amounts then on deposit in the Spread
Account) remitted by the Servicer;
(ii) the Compensating Interest and the portion of the
Monthly Advances remitted to the Indenture Trustee by the
Servicer;
(iii) amounts transferred from the Spread Account
pursuant to Section 5.02(b)(i);
(iv) amounts required to be paid by the Servicer
pursuant to Section 5.06(e) in connection with losses on
investments of amounts in the Accounts; and
(v) amounts transferred from the Pre-Funding Account
and the Capitalized Interest Account on the Special Remittance
Date pursuant to Sections 5.04(c) and (g), respectively.
(b) Amounts on deposit in the Note Distribution Account shall be
withdrawn on each Remittance Date by the Indenture Trustee, or the Paying Agent,
on its behalf, to effect the distribution described in Section 5.07(b) and
thereafter by the following parties in no particular order of priority:
(i) by the Indenture Trustee, to invest amounts on
deposit in the Note Distribution Account in Permitted
Instruments pursuant to Section 5.06;
(ii) by the Indenture Trustee, to pay on a monthly
basis to the Servicer as additional servicing compensation
interest paid and earnings realized on Permitted Instruments;
35
42
(iii) by the Indenture Trustee, to withdraw any
amount not required to be deposited in the Note Distribution
Account or deposited therein in error; and
(iv) by the Indenture Trustee, to clear and terminate
the Note Distribution Account upon the termination of this
Agreement in accordance with the terms of Section 10.01
hereof.
Section 5.02 Establishment of Spread Account;
Deposits in Spread Account; Permitted
Withdrawals from Spread Account.
(a) No later than the Closing Date, the Indenture Trustee will
establish and maintain with itself in its trust department a trust account,
which shall not be interest bearing, titled "Spread Account, HSBC Bank USA, as
Indenture Trustee for the registered holders of First International Bank SBA
Loan-Backed Notes, Series 2000-2" (the "Spread Account"). The Indenture Trustee
shall, promptly upon receipt, deposit in the Spread Account:
(i) [Reserved];
(ii) on each Remittance Date, that portion of the
Available Funds, if any, required to be deposited into the
Spread Account pursuant to Section 5.07(b)(vii) until the
Spread Account Balance equals the then applicable Specified
Spread Account Requirement; and
(iii) amounts required to be paid by the Servicer
pursuant to Section 5.06(e) in connection with losses on
investments of amounts in the Spread Account.
(b) Amounts on deposit in the Spread Account shall be
withdrawn by the Indenture Trustee for distribution in the manner set forth in
subclause (c) below on each Remittance Date in the following order of priority:
(i) to deposit in the Note Distribution Account an
amount by which (a) the sum of the Class A Interest
Distribution Amount and the Class M Interest Distribution
Amount, the Class Principal Distribution Amounts for the Class
A Notes and Class M Notes and the Class Carry Forward Amounts
for the Class A Notes and Class M Notes exceeds (b) the
Available Funds for such Remittance Date (but excluding from
such definition of Available Funds, amounts in the Spread
Account);
(ii) to deposit in the Note Distribution Account the
amount, if any, required to make the full distribution to the
Expense Account pursuant to Section 5.07(b)(vi); and
36
43
(iii) to the extent that the amount then on deposit
in the Spread Account after giving effect to all required
transfers from the Spread Account to the Note Distribution
Account on such Remittance Date then exceeds the Specified
Spread Account Requirement as of such Remittance Date (such
excess, a "Spread Account Excess"), an amount equal to such
Spread Account Excess shall be distributed by the Indenture
Trustee first, to make any payments required pursuant to
Section 5.07(b)(viii)-(xiii), in that order, and second, to
the Paying Agent under the Trust Agreement, for distribution
to the Certificateholders, any excess;
and also, in no particular order of priority:
(iv) to invest the Spread Account Balance in
Permitted Instruments pursuant to Section 5.06;
(v) to withdraw any amount not required to be
deposited in the Spread Account or deposited therein in error;
and
(vi) to clear and terminate the Spread Account upon
the termination of this Agreement in accordance with the terms
of Section 10.01.
(c) Any amounts which are required to be withdrawn from the
Spread Account pursuant to paragraph (b) above shall be withdrawn from the
Spread Account in the following order of priority: (i) first, from any
uninvested funds therein, and (ii) second, from the proceeds of the liquidation
of any investments therein pursuant to Section 5.06(b).
(d) Any amounts which are distributed to the
Certificateholders pursuant to paragraph (b) above will not be required to be
refunded, regardless of whether there are sufficient funds on a subsequent
Remittance Date to make a full distribution to Noteholders on such Remittance
Date.
Section 5.03 Establishment of Expense Account;
Deposits in Expense Account; Permitted
Withdrawals from Expense Account
(a) No later than the Closing Date, the Indenture Trustee will
establish with itself an account (the "Expense Account"). The Expense Account
shall not constitute part of the Trust Fund and is for the benefit of the
Indenture Trustee and the Owner Trustee in its individual capacity to pay their
fees and expenses related to the Trust. The Indenture Trustee shall deposit into
the Expense Account:
(i) on each Remittance Date from the amounts on
deposit in the Note Distribution Account, pursuant to Section
5.07(b)(vi), an amount equal to one-twelfth of the Annual
Expense Escrow Amount; and
37
44
(ii) upon receipt, amounts required to be paid by the
Servicer pursuant to Section 5.06(e) in connection with losses
on investments of amounts in the Expense Account.
If, at any time the amount then on deposit in the Expense Account shall
be insufficient to pay in full the fees and expenses of the Indenture Trustee
and the Owner Trustee in its individual capacity then due, the Indenture Trustee
and the Owner Trustee in its individual capacity shall make demand on the
Servicer to advance the amount of such insufficiency, and the Servicer shall
promptly advance such amount to the Indenture Trustee or the Owner Trustee in
its individual capacity, as the case may be. Thereafter, the Servicer shall be
entitled to reimbursement from the Expense Account for the amount of any such
advance from any excess funds available pursuant to 5.03 (c)(ii). Without
limiting the obligation of the Servicer to advance such insufficiency, in the
event the Servicer does not advance the full amount of such insufficiency by the
Business Day immediately preceding the Determination Date, the amount of such
insufficiency shall be deposited into the Expense Account for payment to the
Indenture Trustee and the Owner Trustee in its individual capacity pursuant to
Section 5.07(b)(vi), to the extent of available funds in the Note Distribution
Account.
(b) The Indenture Trustee may invest amounts on deposit in the
Expense Accounts in Permitted Instruments pursuant to Section 5.06 hereof, and
the Indenture Trustee shall withdraw amounts on deposit in the Expense Accounts
to:
(i) pay the Indenture Trustee's and Owner Trustee's
(in its individual capacity) fees and expenses as described in
Section 2.08 hereof;
(ii) pay on a monthly basis to the Servicer as
additional servicing compensation interest paid and earnings
realized on Permitted Instruments;
(iii) withdraw any amounts not required to be
deposited in the Expense Accounts or deposited therein in
error; and
(iv) clear and terminate the Expense Account upon the
termination of this Agreement in accordance with the terms of
Section 10.01.
(c) On the twelfth Remittance Date following the Closing Date, and
on each twelfth Remittance Date thereafter, the Indenture Trustee shall
determine that all payments required to be made during the prior twelve month
period pursuant to subclauses (b)(i), (b)(ii) and (b)(iii) above, have been
made, and, if all such payments have been made, from the amounts remaining in
the Expense Accounts, the Indenture Trustee shall (in the following order of
priority):
(i) reimburse the Servicer and/or the Company, for
reimbursable advances made pursuant to Section 8.01;
(ii) reimburse the Servicer for advances made by it
pursuant to the last paragraph of subclause (a) above; and
38
45
(iii) remit to the Servicer as additional servicing
compensation any amounts remaining in the Expense Account
after payments made pursuant to 5.03 (b)(i), 5.03 (b)(ii),
5.03 (b)(iii), 5.03 (c)(i) and 5.03 (c)(ii).
Section 5.04 Pre-Funding Account and Capitalized Interest Account
(a) No later than the Closing Date, the Company shall establish
and maintain with the Indenture Trustee in its trust department a trust account,
which shall not be interest-bearing, titled "First International Bank, SBA
Pre-Funding Account 2000-2" (the "Pre-Funding Account"). The Indenture Trustee
shall, promptly upon receipt, deposit into the Pre-Funding Account and retain
therein the Original Pre-Funded Amount from the proceeds of the sale of the
Notes.
(b) On each Subsequent Transfer Date, the Company shall instruct
the Indenture Trustee to withdraw from the Pre-Funding Account an amount equal
to 100% of the aggregate Principal Balances of the Subsequent SBA Loans as of
the related Subsequent Cut-Off Date sold to the Trust on such Subsequent
Transfer Date and pay such amount to or upon the order of the Company with
respect to such transfer.
(c) If at the end of the Funding Period amounts still remain in
the Pre-Funding Account, the Servicer shall instruct the Indenture Trustee to
withdraw from the Pre-Funding Account on the immediately following Remittance
Date and deposit such amounts in the Note Distribution Account. However, if at
the close of business on February 14, 2001 amounts still remain in the
Pre-Funding Account, the Servicer shall instruct the Indenture Trustee to
withdraw from the Pre-Funding Account on the Special Remittance Date and deposit
in the Note Distribution Account any Pre-Funded Amount then remaining in the
Pre-Funding Account, and then the Pre-Funding Account shall be closed.
(d) On the Remittance Dates occurring during the Funding Period,
the Indenture Trustee shall transfer from the Pre-Funding Account to the Note
Distribution Account, the Pre-Funding Earnings, if any, applicable to each such
Remittance Date.
(e) No later than the Closing Date, the Company shall establish
and maintain with the Indenture Trustee in its trust department a trust account,
which shall not be interest-bearing, titled "First International Bank, SBA
Capitalized Interest Account 2000-2" (the "Capitalized Interest Account"). The
Indenture Trustee shall, promptly upon receipt, deposit into the Capitalized
Interest Account $151,770.39. If prior to the end of the Funding Period the
funds on deposit in the Pre-Funding Account are invested in a guaranteed
investment contract, repurchase agreement or other arrangement acceptable to the
Rating Agencies, that constitutes a Permitted Instrument, the Indenture Trustee
shall, within one Business Day of its receipt of notification of satisfaction of
the Rating Agency Condition, withdraw from the Capitalized Interest Account and
pay to the Company the amount set forth in such notification.
39
46
(f) On the Remittance Dates occurring during the Funding Period,
the Indenture Trustee shall transfer from the Capitalized Interest Account to
the Note Distribution Account, the Capitalized Interest Requirement, if any, for
such Remittance Dates.
(g) On the Special Remittance Date, the Indenture Trustee shall
transfer from the Capitalized Interest Account to the Note Distribution Account
the Capitalized Interest Requirement, if any, for such Special Remittance Date.
Any amounts remaining in the Capitalized Interest Account after taking into
account such transfer shall be paid on such Special Remittance Date to the
Company, and the Capitalized Interest Account shall be closed.
Section 5. 05 [Intentionally Omitted]
Section 5.06 Investment of Accounts.
(a) So long as no default or Event of Default shall have occurred
and be continuing, and consistent with any requirements of the Code, all or a
portion of any Account held by the Indenture Trustee shall be invested by the
Indenture Trustee, as directed in writing by the Servicer, in one or more
Permitted Instruments in the name of the Indenture Trustee, bearing interest or
sold at a discount. No such investment in any Account shall mature later than
the Business Day immediately preceding the next Remittance Date; provided,
however, the Indenture Trustee or any affiliate thereof, may be the obligor on
any investment which otherwise qualifies as a Permitted Instrument and any
investment on which the Indenture Trustee is the obligor may mature on such
Remittance Date or date when needed, as the case may be.
(b) If any amounts are needed for disbursement from any Account
held by the Indenture Trustee and sufficient uninvested funds are not available
to make such disbursement, the Indenture Trustee shall cause to be sold or
otherwise converted to cash a sufficient amount of the investments in such
Account. The Indenture Trustee shall not be liable for any investment loss or
other charge resulting therefrom.
(c) The Indenture Trustee shall not in any way be held liable by
reason of any insufficiency in any Account held by the Indenture Trustee
resulting from any investment loss on any Permitted Instrument included therein
(except to the extent that the Indenture Trustee is the obligor thereon).
(d) The Indenture Trustee shall invest and reinvest funds in the
Accounts held by the Indenture Trustee to the fullest extent practicable, in
such manner as the Servicer shall from time to time direct in writing, but only
in one or more Permitted Instruments.
(e) All income or other gain from investments in any Account held
by the Indenture Trustee shall be deposited in such Account, immediately on
receipt, and the Indenture Trustee shall notify the Servicer of any loss
resulting from such investments. The Servicer shall remit the amount of any such
loss from its own funds, without reimbursement therefor, to the Indenture
Trustee for deposit in the Account from which the related funds were withdrawn
for investment by the next Determination Date following receipt by the Servicer
of such notice.
40
47
Section 5.07 Distributions.
(a) The rights of the Noteholders and Certificateholders to
receive distributions from the proceeds of the Trust Fund, and all ownership
interests of the Certificateholders in such distributions, shall be as set forth
in this Agreement.
(b) By 11:00 A.M. New York time, on each Remittance Date the
Indenture Trustee shall withdraw from the Note Distribution Account an amount
equal to (A) that portion of the Available Funds received from the Servicer
pursuant to Section 5.01(a)(i), (ii) and (iv), and (B) the amounts deposited
therein pursuant to Section 5.02(b)(i), and make distributions thereof in the
following order of priority:
(i) First, to the Class A Notes in an amount up to
the Class A Interest Distribution Amount;
(ii) Second, to the Class M Notes in an amount up to
the Class M Interest Distribution Amount (other than the Class
M Carry Forward Interest Amount, if any);
(iii) Third, to the Class A Notes in an amount up to
the sum of (a) the Class Principal Distribution Amount for the
Class A Notes and (b) the Class Carry Forward Amount for the
Class A Notes;
(iv) Fourth, to the Class M Notes, the Class M Carry
Forward Interest Amount;
(v) Fifth, to the Class M Notes in an amount up to
the sum of (a) the Class Principal Distribution Amount for the
Class M Notes and (b) the Class Carry Forward Amount for the
Class M Notes;
(vi) Sixth, to the Expense Account in an amount up to
one-twelfth of the Annual Expense Escrow Amount plus any
amount required to be paid to the Owner Trustee in its
individual capacity and the Indenture Trustee pursuant to
Section 5.03(a) resulting from insufficiencies in the Expense
Account;
(vii) Seventh, to the Spread Account, any remaining
Available Funds unless and until the amount therein equals the
Specified Spread Account Requirement;
(viii) Eighth, to the Servicer in an amount up to the
Reimbursable Amounts;
(ix) Ninth, to the Class A Notes, any Interest
Carryover for the Class A Notes;
41
48
(x) Tenth, to the Class M Notes, any Interest
Carryover for the Class M Notes;
(xi) Eleventh, to the Class B Notes in an amount up
to the Class B Interest Distribution Amount;
(xii) Twelfth, to the Class B Notes in an amount up
to the sum of (a) the Class Principal Distribution Amount for
the Class B Notes and (b) the Class Carry Forward Amount for
the Class B Notes;
(xiii) Thirteenth, to the Class B Notes, any Interest
Carryover for the Class B Notes; and
(xiv) Fourteenth, to the Paying Agent under the Trust
Agreement, for distribution to the Certificateholders, any
excess.
Additionally, on the Special Remittance Date, the Indenture Trustee
shall withdraw from the Note Distribution Account the amount, if any, deposited
therein pursuant to Section 5.01(a)(v) and make distributions thereof as
follows: (i) from amounts transferred from the Pre-Funding Account,
distributions of principal to the Class A Notes, Class M Notes and Class B
Notes, pro rata based upon the Class A Percentage, the Class M Percentage and
the Class B Percentage, respectively, and (ii) from amounts transferred from the
Capitalized Interest Account, distributions of interest to such Class A Notes,
Class M Notes and Class B Notes equal to the applicable Capitalized Interest
Requirement. Notwithstanding the foregoing, if an Event of Default has occurred
and is continuing, distributions shall be made as set forth in Section 5.04(b)
of the Indenture.
(c) All distributions made to the Noteholders of a particular
Class will be made on a pro rata basis among the Noteholders of record of the
applicable Class on the next preceding Record Date based on the Percentage
Interest represented by their respective Notes, and shall be made by check or,
upon request by a Noteholder, by wire transfer of immediately available funds to
the account of such Noteholder at a bank or other entity having appropriate
facilities therefor, and, in the case of wire transfers, at the expense of such
Noteholder unless such Noteholder shall own of record Notes which have initial
principal balances aggregating at least $1,000,000.
Section 5.08 Determination of LIBOR.
LIBOR applicable to the calculation of the Remittance Rate on the Notes
for any Interest Accrual Period will be determined on each LIBOR Rate Adjustment
Date.
On each LIBOR Rate Adjustment Date, LIBOR shall be established by the
Servicer and, as to any Interest Accrual Period, will equal the rate for one
month United States dollar deposits that appears on the Telerate Screen Page
3750 as of 11:00 a.m., London time, on such LIBOR
42
49
Rate Adjustment Date. "Telerate Screen Page 3750" means the display designated
as page 3750 on the Bridge Telerate Service (or such other page as may replace
page 3750 on that service) for the purpose of displaying London interbank
offered rates of major banks). If such rate does not appear on such page (or
such other page as may replace that page on that service), or if such service is
no longer offered, LIBOR, shall be so established by use of such other service
for displaying LIBOR or comparable rates as may be selected by the Servicer, the
rate will be the Reference Bank Rate. The "Reference Bank Rate" will be
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by the reference banks (which shall be any three major banks that are
engaged in transactions in the London interbank market, selected by the
Servicer) as of 11:00 a.m., London time, on the LIBOR Rate Adjustment Date to
prime banks in the London interbank market for a period of one month in amounts
approximately equal to the Class Principal Balance of the Notes then
outstanding. The Servicer will request the principal London office of each of
the reference banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate will be the arithmetic mean of the quotations
rounded up to the next multiple of 1/16%. If on such date fewer than two
quotations are provided as requested, the rate will be the arithmetic mean of
the rates quoted by one or more major banks in New York City, selected by the
Servicer, as of 11:00 a.m., New York City time, on such date for loans in U.S.
Dollars to leading European banks for a period of one month in amounts
approximately equal to the Class Principal Balance of the Notes then
outstanding. If no such quotations can be obtained, the rate will be LIBOR for
the prior Remittance Date.
The establishment of LIBOR by the Servicer on any LIBOR Rate Adjustment
Date and the Servicer's subsequent calculation of the Remittance Rates
applicable to the Notes for the relevant Interest Accrual Period, in the absence
of manifest error, will be final and binding.
Promptly following each LIBOR Rate Adjustment Date the Servicer shall
supply the Indenture Trustee with the results of its determination of LIBOR on
such date.
Section 5.09 Statements.
Each month, not later than 12:00 noon New York time on the
Determination Date, the Servicer shall deliver to the Indenture Trustee, by
telecopy, for distribution to the Noteholders, the receipt and legibility of
which shall be confirmed telephonically, with hard copy thereof and the
Servicer's Monthly Computer Tape in the form attached hereto as Exhibit L (both
in hard copy and in computer tape form) to be delivered on the Business Day
following the Determination Date, a certificate signed by a Servicing Officer (a
"Servicer's Certificate") stating the date (day, month and year), and, as of the
close of business on the Record Date for such month:
(i) Available Funds for the related Remittance Date;
(ii) The Aggregate Class A Note Principal Balance,
the Aggregate Class M Note Principal Balance, the Aggregate
Class B Note Principal Balance and the Pool Principal Balance
as reported in the prior Servicer's Certificate pursuant to
subclause (xii) below, or, in the case of the first
Determination Date,
43
50
the Original Class A Note Principal Balance, the Original
Class M Note Principal Balance, the Original Class B Note
Principal Balance and the Original Pool Principal Balance;
(iii) The number and Principal Balances of all SBA
Loans which were the subject of Principal Prepayments during
the Due Period and the number and Principal Balances of all
Defaulted SBA Loans purchased by the Servicer during the Due
Period;
(iv) The product of the Unguaranteed Percentage
multiplied by all Curtailments which were received during the
Due Period;
(v) The product of the Unguaranteed Percentage
multiplied by all Excess Payments and the product of the
Unguaranteed Percentage multiplied by all Monthly Payments in
respect of principal received during the Due Period;
(vi) The aggregate amount of interest received on the
Unguaranteed Interest of each SBA Loan net of the FTA's Fee,
the Additional Fee and the Servicing Fee attributable to the
Unguaranteed Interest;
(vii) The amount of the Monthly Advances to be made
on the Determination Date and the Compensating Interest
payment to be made on the Determination Date;
(viii) The delinquency and foreclosure information
set forth in the form attached hereto as Exhibit K;
(ix) The product of the Unguaranteed Percentage
multiplied by the amount of any losses realized on a
Liquidated SBA Loan;
(x) The Class A Interest Distribution Amount, Class M
Interest Distribution Amount, Class B Interest Distribution
Amount and Class Principal Distribution Amount for the
Remittance Date with the components thereof stated separately;
(xi) The amount of the funds available in the Spread
Account as of the related Record Date in cash and from
liquidation of Permitted Instruments and the amount, if any,
to be transferred from the Spread Account to the Note
Distribution Account pursuant to Section 5.02(b)(i);
(xii) The Aggregate Class A Note Principal Balance,
Aggregate Class M Note Principal Balance, Aggregate Class B
Note Principal Balance and the Pool Principal Balance after
giving effect to the distribution to be made on the Remittance
Date;
44
51
(xiii) The Spread Account Balance and the Specified
Spread Account Requirement with respect to such Remittance
Date;
(xiv) The weighted average maturity and weighted
average SBA Loan Interest Rate;
(xv) The Servicing Fees and the Annual Expense Escrow
Amount and other amounts to be deposited to the Expense
Account;
(xvi) The amount of all payments and reimbursements
to the Servicer pursuant to Section 4.04 (b), (c), (d)(ii),
(e) and (f);
(xvii) The Class A Remittance Rate, Class M
Remittance Rate and Class B Remittance Rate with respect to
such Remittance Date;
(xviii) During the Funding Period, the aggregate
Principal Balance of the Subsequent SBA Loans purchased during
the prior Due Period and the amount on deposit in the
Pre-Funding Account and the Capitalized Interest Account as of
the end of such Due Period;
(xix) The Net Interest Cap with respect to the
Remittance Date;
(xx) If the Class Remittance Rate for a Class of
Notes for such Remittance Date is based on the Net Interest
Cap, the amount of any Interest Carryover for such Class of
Notes for such Remittance Date;
(xxi) The amount of the distribution, if any,
allocable to Interest Carryover and the amount of any Interest
Carryover for all prior Remittance Dates after giving effect
to such distribution (in each case, stated separately by Class
and in the aggregate);
(xxii) The Prime/LIBOR Spread and the Rolling Three
Month Prime/LIBOR Spread for such Remittance Date; and
(xxiii) Such other information as the Indenture
Trustee, the Noteholders or the Rating Agencies may reasonably
require; provided, however, that the Servicer shall have no
obligation to distribute such information directly to any
Noteholder.
The Indenture Trustee shall forward such report to the Noteholders, the
Certificateholders, the Owner Trustee and the Rating Agencies on the Remittance
Date, together with a separate report indicating the amount of funds deposited
in the Note Distribution Account pursuant to Section 5.01(a)(iv); and the
amounts which are reimbursable to the Servicer or the Company pursuant to
Sections 5.03 and 5.07 (all reports prepared by the Indenture Trustee of
45
52
such withdrawals and deposits will be based in whole or in part upon the
information provided to the Indenture Trustee by the Servicer).
To the extent that there are inconsistencies between the telecopy of
the Servicer's Certificate and the hard copy thereof, the Indenture Trustee
shall be entitled to rely upon the telecopy. In the case of information
furnished pursuant to subclauses (ii), (iii), (iv), (v), (x) and (xii), above,
the amounts shall be expressed in a separate section of the report as a dollar
amount for each Class per $1,000 original dollar amount as of the Cut-Off Date.
Additionally, on the Special Remittance Date the Indenture Trustee
shall, based upon information received from the Servicer, forward to the
Noteholders and the Rating Agencies a report setting forth the amount of
principal and interest, if any, being paid to each Class of Notes on the Special
Remittance Date.
(a) Within a reasonable period of time after the end of each
calendar year, the Servicer shall furnish to the Indenture Trustee for
distribution to each Person who at any time during the calendar year was a
Noteholder such information as is reasonably necessary to provide to such Person
a statement containing the information set forth in subclauses (vi), (x), and
(xiv), above, aggregated for such calendar year or applicable portion thereof
during which such Person was a Noteholder. Such obligation of the Servicer shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Servicer pursuant to any requirements of
the Code as from time to time are in force.
(b) Upon reasonable advance notice in writing, the Servicer will
provide to each Noteholder which is a savings and loan association, bank or
insurance company certain reports and access to information and documentation
regarding the SBA Loans sufficient to permit such Noteholder to comply with
applicable regulations of its regulatory authorities with respect to investment
in the Notes.
(c) The Servicer shall furnish to each Noteholder, during the term
of this Agreement, such periodic, special, or other reports or information,
whether or not provided for herein, as shall be necessary, reasonable, or
appropriate with respect to the Noteholder or otherwise with respect to the
purposes of this Agreement, all such reports or information to be provided by
and in accordance with such applicable instructions and directions as the
Noteholder may reasonably require; provided, that the Servicer shall be entitled
to be reimbursed by such Noteholder for the Servicer's actual expenses incurred
in providing such reports if such reports are not producible in the ordinary
course of the Servicer's business. The Rating Agencies shall receive copies of
any such reports or information furnished to the Noteholders.
Section 5.10 Advances by the Servicer.
Not later than the close of business on each Determination Date, the
Servicer shall remit to the Indenture Trustee for deposit in the Note
Distribution Account an amount (as indicated in the Servicer's Certificate
prepared pursuant to Section 5.09), to be distributed on the related Remittance
Date pursuant to Section 5.07, equal to the amount by which (i) 30 days'
interest at a
46
53
rate equal to the then applicable Adjusted SBA Loan Remittance Rate on the
aggregate Class Principal Balances for the Class A Notes, Class M Notes and
Class B Notes immediately prior to the related Remittance Date exceeds (ii) the
amount received by the Servicer as of the related Record Date in respect of
interest on the SBA Loans minus the interest payable to the Registered Holders,
the Required Holdback Amount, the Additional Fee, and the FTA's Fee (plus, for
the Remittance Dates during the Funding Period, the sum of (i) all funds to be
transferred to the Note Distribution Account from the Capitalized Interest
Account for such Remittance Date pursuant to Section 5.04(f) and (ii) the
Pre-Funding Earnings for the applicable Remittance Date), such excess being
defined herein as the "Monthly Advance." The Servicer may reimburse itself for
Monthly Advances made pursuant to Section 4.04. Notwithstanding the foregoing,
the Servicer shall not be required to make a Monthly Advance with respect to an
SBA Loan if it determines, in good faith, that such advance would be
nonrecoverable from amounts received in respect of the SBA Loans.
Notwithstanding the foregoing, no Servicer other than FIB or one of its
Affiliates shall be required to make any Monthly Advances pursuant to this
Section 5.10.
Section 5.11 Compensating Interest.
Not later than the close of business on each Determination Date, with
respect to each SBA Loan for which a Principal Prepayment or Curtailment was
received during the related Due Period, the Servicer shall remit to the
Indenture Trustee for deposit in the Note Distribution Account but only from
amounts otherwise payable to it as servicing compensation as described in
Section 6.03 (other than the Required Holdback Amount), an amount (such amount
required to be delivered to the Indenture Trustee is referred to herein as
"Compensating Interest") (as indicated in the Servicer's Certificate prepared
pursuant to Section 5.09) equal to the difference between (a) 30 days' interest
at the Adjusted SBA Loan Remittance Rate on the Principal Balance of each such
SBA Loan as of the beginning of the Due Period applicable to the Remittance Date
on which such amount will be distributed, and (b) the amount of interest
actually received on the Unguaranteed Interest of each such SBA Loan for such
Due Period net of the portion thereof payable to the Registered Holder, the
Required Holdback Amount, the FTA's Fee, the Excess Spread and the fees and
expenses of the Owner Trustee and Indenture Trustee allocable to such interest
and, with respect to each Additional Fee SBA Loan, the Additional Fee.
Section 5.12 Reports of Foreclosure and Abandonment of Mortgaged
Property
Each year the Servicer shall make the reports of foreclosures and
abandonment of any Mortgaged Property required by Section 6050J of the Code.
Promptly after filing each such report with the Internal Revenue Service, the
Servicer shall provide the Indenture Trustee with an Officer's Certificate
certifying that such report has been filed.
47
54
ARTICLE VI
GENERAL SERVICING PROCEDURE
Section 6.01 [Intentionally Omitted].
Section 6.02 Satisfaction of Mortgages and Collateral and
Release of SBA Files.
The Servicer shall maintain the Fidelity Bond as provided for in
Section 4.09 insuring the Servicer against any loss it may sustain with respect
to any SBA Loan not satisfied in accordance with the procedures set forth
herein.
Upon the payment in full of any SBA Loan, the receipt by the Servicer
of a notification that payment in full will be escrowed in a manner customary
for such purposes or the deposit into the Principal and Interest Account of the
purchase price of any SBA Loan acquired by the Seller, the Servicer or another
Person pursuant to this Agreement, or any other Basic Document, the Servicer
will immediately notify the FTA and the Indenture Trustee by a certification in
the form of Exhibit I attached hereto (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the Principal
and Interest Account pursuant to Section 4.03 or the Note Distribution Account
pursuant to Section 5.01 have been or will be so deposited) of a Servicing
Officer and shall request delivery to it of the Indenture Trustee's Document
File. The Multi-Party Agreement provides for release by FTA of the related SBA
Note in accordance with the terms of the Multi-Party Agreement. Upon receipt of
such certification and request, the FTA and the Indenture Trustee shall release,
within 3 Business Days, the related Indenture Trustee's Document File to the
Servicer. Expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be payable by the Servicer and shall not be
chargeable to the Principal and Interest Account or the Note Distribution
Account.
Subject to the Multi-Party Agreement, from time to time and as
appropriate for the servicing or foreclosure of any SBA Loan, the Indenture
Trustee shall, upon request of the Servicer and delivery to the Indenture
Trustee of a certification in the form of Exhibit I attached hereto signed by a
Servicing Officer, release the related Indenture Trustee's Document File to the
Servicer within 3 Business Days, and the Indenture Trustee shall execute such
documents as shall be necessary to the prosecution of any such proceedings. The
Multi-Party Agreement provides for release by FTA of the related SBA Note in
accordance with the terms of the Multi-Party Agreement. The Servicer shall
return the Indenture Trustee's Document File to the FTA and the Indenture
Trustee when the need therefor by the Servicer no longer exists, unless the SBA
Loan has been liquidated and the Unguaranteed Percentage of the Liquidation
Proceeds relating to the SBA Loan has been deposited in the Principal and
Interest Account and remitted to the Indenture Trustee for deposit in the Note
Distribution Account or the SBA File or such document has been delivered to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property or repossession of other Collateral either
judicially or non-judicially, and
48
55
the Servicer has delivered to the Indenture Trustee a certificate of a Servicing
Officer certifying as to the name and address of the Person to whom such SBA
File or such document was delivered and the purpose or purposes of such
delivery. Upon receipt of a certificate of a Servicing Officer stating that such
SBA Loan was liquidated, the servicing receipt relating to such SBA Loan shall
be released by the Indenture Trustee to the Servicer.
The Indenture Trustee shall execute and deliver to the Servicer any
court pleadings, requests for trustee's sale or other documents provided to it
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or other Collateral or to any legal action brought to obtain judgment
against any Obligor on the SBA Note or Mortgage or other agreement securing
Collateral or to obtain a deficiency judgment, or to enforce any other remedies
or rights provided by the SBA Note or Mortgage or other agreement securing
Collateral or otherwise available at law or in equity. Together with such
documents or pleadings, the Servicer shall deliver to the Indenture Trustee a
certificate of a Servicing Officer requesting that such pleadings or documents
be executed by the Indenture Trustee and certifying as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Indenture Trustee will not invalidate or otherwise affect the lien of the
Mortgage or other agreement securing Collateral, except for the termination of
such a lien upon completion of the foreclosure or trustee's sale. The Indenture
Trustee shall, upon receipt of a written request from a Servicing Officer,
execute any document provided to the Indenture Trustee by the Servicer or take
any other action requested in such request, that is, in the opinion of the
Servicer as evidenced by such request, required by any state or other
jurisdiction to discharge the lien of a Mortgage or other agreement securing
Collateral upon the satisfaction thereof and the Indenture Trustee will sign and
post, but will not guarantee receipt of, any such documents to the Servicer, or
such other party as the Servicer may direct, within five Business Days of the
Indenture Trustee's receipt of such certificate or documents. Such certificate
or documents shall establish to the Indenture Trustee's satisfaction that the
related SBA Loan has been paid in full by or on behalf of the Obligor and that
such payment has been deposited in the Principal and Interest Account.
Section 6.03 Servicing Compensation.
As compensation for its services hereunder, the Servicer shall be
entitled to retain from interest payments on the SBA Loans or withdraw from the
Principal and Interest Account (to the extent deposited therein) the Required
Holdback Amount and, in accordance with Section 4.04(b), any accrued but
unreimbursed Required Holdback Amounts. Additional servicing compensation in the
form of assumption and other administrative fees, interest paid on funds on
deposit in the Principal and Interest Account, interest paid and earnings
realized on Permitted Instruments, amounts remitted pursuant to Section 5.03(c)
and late payment charges shall be retained by or remitted to the Servicer to the
extent not required to be remitted to the Indenture Trustee for deposit in the
Note Distribution Account. The 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 for
herein.
49
56
Section 6.04 Annual Statement as to Compliance.
The Servicer will deliver to the Indenture Trustee, the SBA and the
Rating Agencies on or before March 31 of each year beginning March 31, 2002, an
Officer's Certificate stating that (i) the Servicer has fully complied with the
provisions of Articles IV, V, VI and VII, (ii) a review of the activities of the
Servicer during the preceding calendar year and of performance under this
Agreement has been made under such officer's supervision, and (iii) to the best
of such officer's knowledge, based on such review, the 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 officers and the nature and status thereof and the action
being taken by the Servicer to cure such default.
Section 6.05 Annual Independent Public Accountants' Servicing
Report.
On or before March 31 of each year beginning March 31, 2002, the
Servicer, at its expense, shall cause one of the "big five" accounting firms, to
furnish a letter or letters to the Indenture Trustee and the Rating Agencies to
the effect that such firm has with respect to the Servicer's overall servicing
operations examined such operations in accordance with the requirements of the
Uniform Single Audit Program for Mortgage Bankers, and stating such firm's
conclusions relating thereto.
Section 6.06 SBA's and Indenture Trustee's Right to Examine
Servicer Records and Audit Operations.
The SBA and the Indenture Trustee shall have the right upon reasonable
prior notice, during normal business hours and as often as reasonably required,
to examine and audit any and all of the books, records or other information of
the Servicer, whether held by the Servicer or by another on behalf of the
Servicer, which may be relevant to the performance or observance by the Servicer
of the terms, covenants or conditions of this Agreement. No amounts payable in
respect of the foregoing shall be paid from the Trust Fund.
Section 6.07 Reports to the Indenture Trustee; Principal and
Interest Account Statements.
Not later than 20 days after each Record Date, the Servicer shall
forward to the Indenture Trustee and the SBA a statement, certified by a
Servicing Officer, setting forth the status of the Principal and Interest
Account as of the close of business on the preceding Record Date and showing,
for the period covered by such statement, the aggregate of deposits into the
Principal and Interest Account for each category of deposit specified in Section
4.03, the aggregate of withdrawals from the Principal and Interest Account for
each category of withdrawal specified in Section 4.04, the aggregate amount of
permitted withdrawals not made in the related Due Period and the amount of any
Monthly Advances or payments of Compensating Interest, in each case, for the
related Due Period.
50
57
Section 6.08 Required Holdback Amount.
Pursuant to and in accordance with the policies of the SBA and SBA Form
1086, the Servicer shall retain the Required Holdback Amount for each SBA Loan.
The Required Holdback Amount shall not constitute part of the Trust Fund and
Noteholders and Certificateholders shall have no interest in, and are not
entitled to receive any portion of the Required Holdback Amount. If the Company
is replaced as servicer pursuant to any provision of this Agreement, it shall no
longer be entitled to the Required Holdback Amount but, instead, the successor
servicer shall be entitled thereto.
51
58
ARTICLE VII
REPORTS TO BE PROVIDED BY SERVICER
Section 7.01 Financial Statements.
The Servicer agrees to make available on a reasonable basis to any
Noteholder or prospective Noteholder a knowledgeable financial or accounting
officer for the purpose of answering reasonable questions respecting recent
developments affecting the Servicer or the financial statements of the Servicer
and its parent (First International Bancorp, Inc. and any successor thereto) and
to permit any Noteholder to inspect the Servicer's servicing facilities during
normal business hours for the purpose of satisfying such Noteholder that the
Servicer has the ability to service the SBA Loans in accordance with this
Agreement.
52
59
ARTICLE VIII
THE SERVICER
Section 8.01 Indemnification; Third Party Claims.
(a) The Servicer agrees to indemnify, defend, and hold the
Indenture Trustee (as such and in its individual capacity), the Owner Trustee
(as such and in its individual capacity), the SBA and each Noteholder and
Certificateholder harmless from and against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, fees and expenses that the Indenture Trustee (as such or in its
individual capacity), the Owner Trustee (as such or in its individual capacity)
the SBA, and any Noteholder or Certificateholder may sustain in any way related
to the failure of the Servicer to perform its duties and service the SBA Loans
in compliance with the terms of this Agreement. Notwithstanding the foregoing
but subject to any other obligation of the Servicer to the SBA, (i) the Servicer
shall not indemnify the Indenture Trustee, the Owner Trustee, the SBA or any
Noteholder or Certificateholder if such acts, omissions or alleged acts
constitute fraud, gross negligence, willful misconduct or breach of fiduciary
duty by such Person and (ii) the Servicer shall not indemnify any such Person,
for any taxes, including without limitation any federal, state or local income
or franchise taxes or other taxes, imposed on or measured by income received by
such Person (or any interest or penalties with respect thereto or arising from a
failure to comply therewith) that are required to be paid by such Person in
connection herewith to any taxing authority. The Servicer shall immediately
notify the Indenture Trustee, the Owner Trustee and the SBA if a claim is made
by any party with respect to this Agreement, and the Servicer shall assume (with
the consent of the indemnified party) the defense of any such claim and pay all
expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any final judgment or decree which may be
entered against the Servicer, the Indenture Trustee (as such or in its
individual capacity), the Owner Trustee (as such or in its individual capacity),
the SBA, a Noteholder and/or a Certificateholder in respect of such claim. The
Indenture Trustee may reimburse the Servicer from the Expense Account pursuant
to Section 5.03(c)(i) for all amounts advanced by it pursuant to the preceding
sentence except when the claims relates directly to the failure of the Servicer
to service and administer the SBA Loans in compliance with the terms of this
Agreement.
(b) The Company agrees to indemnify, defend, and hold the
Indenture Trustee (as such and in its individual capacity), the Owner Trustee
(as such and in its individual capacity), the SBA and each Noteholder and
Certificateholder harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs, fees
and expenses that the Indenture Trustee (as such or in its individual capacity),
the Owner Trustee (as such or in its individual capacity), the SBA and any
Noteholder or Certificateholder may sustain in any way related to the failure of
the Company to perform its duties in compliance with the terms of this Agreement
and in the best interests of the SBA, the Noteholders and the
Certificateholders. Notwithstanding the foregoing subject to any other
obligation of the Servicer to the SBA, (i) the Company shall not indemnify the
Indenture Trustee, the Owner Trustee, the SBA or any Noteholder or
Certificateholder if such acts, omissions or alleged acts constitute fraud,
gross negligence, willful misconduct or breach of fiduciary duty by such Person,
(ii) the
53
60
Company shall not indemnify any such Person as to any losses resulting from the
credit risk of the Obligors of the SBA Loans, including without limitation
losses incurred as a result of a Defaulted SBA Loan and (iii) the Company shall
not indemnify any such Person, for any taxes, including without limitation any
federal, state or local income or franchise taxes or other tax imposed on or
measured by income received by such Person (or any interest or penalties with
respect thereto or arising from a failure to comply therewith) that are required
to be paid by such Person in connection herewith to any taxing authority. The
Company shall immediately notify the Indenture Trustee, the Owner Trustee and
the SBA, if a claim is made by a third party with respect to this Agreement, and
the Company shall assume (with the consent of the indemnified party) the defense
of any such claim and pay all expenses in connection therewith, including
reasonable counsel fees, and promptly pay, discharge and satisfy any final
judgment or decree which may be entered against the Servicer, the Company, the
Indenture Trustee (as such or in its individual capacity), the Owner Trustee (as
such or in its individual capacity), the SBA, a Noteholder and/or a
Certificateholder in respect of such claim.
Section 8.02 Merger or Consolidation of the Servicer.
The Servicer will keep in full effect its existence, rights and
franchises as a corporation, bank or association and if required by applicable
law will obtain and preserve its qualification to do business as a foreign
entity, in each jurisdiction necessary to protect the validity and
enforceability of this Agreement or any of the SBA Loans and to perform its
duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Servicer shall be a party, or any Person succeeding to all or substantially all
of the business of the Servicer, shall be an established mortgage loan servicing
institution that has a net worth of at least $15,000,000 and shall be an
approved SBA guaranteed lender in good standing, operating pursuant to an
effective Loan Guaranty Agreement, and shall be the successor of the Servicer,
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 except as may be otherwise required by the SBA Rules and
Regulations and the Multi-Party Agreement. The Servicer shall send notice of any
such merger, consolidation, conversion, or succession to the Indenture Trustee,
the Owner Trustee, the Rating Agencies and the SBA.
Subject to the receipt of written approval from the SBA which may be
withheld in its sole discretion, the Servicer is permitted to assign its rights
and duties hereunder to, and such rights and duties can be assumed by, an
affiliate of the Servicer (the "Assignee") (i) having a net worth of at least
$25,000,000, (ii) which is an approved SBA guaranteed lender in good standing
operating pursuant to an effective Loan Guaranty Agreement, (iii) that acquires
substantially all of the Servicer's assets relating to its commercial lending
business, (iv) that assumes substantially all of the Servicer's liabilities
relating to its commercial lending business, but expressly excluding the
Servicer's deposits, and (v) that executes and delivers to the Indenture Trustee
such amendments to this Agreement and such opinions of counsel as the Indenture
Trustee may deem necessary including, but not limited to opinions to evidence
that the Assignee has assumed all of
54
61
the Servicer's rights and obligations, and is bound by all of the Servicer's
agreements, set forth herein (in which case all of the provisions of this
Agreement and the Multi-Party Agreement shall, to the same extent as they apply
to the Servicer hereunder, apply to the Assignee rather than the Servicer),
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding
except as may be otherwise required by the SBA Rules and Regulations and the
Multi-Party Agreement. The Servicer shall send notice of any such assignment to
the Indenture Trustee, the Owner Trustee and the SBA.
Section 8.03 Limitation on Liability of the Servicer and Others.
The Servicer and any director, officer, employee or agent of the
Servicer may rely on any document of any kind which it in good faith reasonably
believes to be genuine and to have been adopted or signed by the proper
authorities or persons respecting any matters arising hereunder. Subject to the
terms of Section 8.01 herein, the Servicer shall have no obligation to appear
with respect to, prosecute or defend any legal action which is not incidental to
the Servicer's duty to service the SBA Loans in accordance with this Agreement.
Section 8.04 Servicer Not to Resign.
The Servicer shall not assign this Agreement nor resign from the
obligations and duties hereby imposed on it except (i) by mutual consent of the
Servicer, the SBA, the Indenture Trustee and the Majority Noteholders, or (ii)
in connection with a merger, conversion or consolidation permitted pursuant to
Section 8.02 and with the prior written consent of the SBA (in which case the
Person resulting from the merger, conversion or consolidation shall be the
successor of the Servicer), or (iii) in connection with an assignment permitted
pursuant to Section 8.02 and with the consent of the SBA (in which case the
assignee shall be the successor to the Servicer) or (iv) upon the determination
that the Servicer's duties hereunder are no longer permissible under applicable
law or administrative determination and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by a written Opinion of Counsel (who may be counsel for the
Servicer) to such effect delivered to the Indenture Trustee, the SBA and the
Owner Trustee, which Opinion of Counsel shall be in form and substance
acceptable to the Indenture Trustee, the Owner Trustee and the SBA. No such
resignation shall become effective until a successor approved in writing by the
SBA has assumed the Servicer's responsibilities and obligations hereunder in
accordance with Section 9.02.
55
62
ARTICLE IX
SERVICER TERMINATION
Section 9.01 Servicer Termination Events.
(a) In case one or more of the following events (each a "Servicer
Termination Event") by the Servicer shall occur and be continuing, that is to
say:
(i) (A) the failure by the Servicer to make any
required Servicing Advance, to the extent such failure
materially and adversely affects the interests of the
Noteholders; (B) the failure by the Servicer to make any
required Monthly Advance; (C) the failure by the Servicer to
remit any Compensating Interest; or (D) any failure by the
Servicer to remit to Noteholders, or to the Indenture Trustee
for the benefit of the Noteholders, or to the Owner Trustee
for the benefit of the Certificateholders, any payment
required to be made under the terms of the Basic Documents
which continues unremedied for one Business Day after such
payment was required to be made; or
(ii) failure by the Servicer or the Company duly to
observe or perform, in any material respect, any other
covenants, obligations or agreements of the Servicer or the
Company as set forth in the Basic Documents, which failure
continues unremedied for a period of 60 days (if such failure
can be remedied) after the earlier to occur of (A) the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer or the
Company, as the case may be, by the Indenture Trustee or to
the Servicer, or the Company, as the case may be, and the
Indenture Trustee by any Noteholder or Certificateholder or
(B) the date a Responsible Officer of the Servicer receives
actual knowledge of such failure; or
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force,
undischarged or unstayed for a period of 60 days; or
(iv) the Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of the Servicer's
property; or
(v) the Servicer shall admit in writing its inability
to pay its debts as they become due, file a petition to take
advantage of any applicable insolvency or
56
63
reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its
obligations.
(b) then, and in each and every such case, so long as a Servicer
Termination Event shall not have been remedied, and in the case of clause (i)
above (except for clause (i)(B)), if such Servicer Termination Event shall not
have been remedied within 30 days after the Servicer has received notice of such
Servicer Termination Event, (x) with respect solely to clause (i)(B) above, if
such Monthly Advance is not made earlier than 4:00 p.m. New York time on the
Determination Date, the Indenture Trustee shall give immediate telephonic notice
of such failure to a Servicing Officer of the Servicer and, unless such failure
is cured, either by receipt of payment or receipt of evidence (e.g., a wire
reference number communicated by the sending bank) that such funds have been
sent, by 12:00 Noon New York time on the following Business Day, the Indenture
Trustee shall immediately assume, pursuant and subject to Section 9.02 and the
Multi-Party Agreement, the duties of a successor servicer; and (y) in the case
of clauses (i)(A), (i)(C), (i)(D), (iii), (iv) and (v), the Majority
Noteholders, by notice in writing to the Servicer (except with respect to (iii),
(iv) and (v) for which no notice is required) may, in addition to whatever
rights such Noteholders may have at law or equity including damages, injunctive
relief and specific performance, in each case, with the consent of the SBA
(which consent may be withheld in its sole discretion) immediately terminate all
the rights and obligations of the Servicer under this Agreement and in and to
the SBA Loans and the proceeds thereof, as Servicer. Upon such receipt by the
Servicer of a second written notice from the Majority Noteholders (accompanied
with the consent of the SBA) stating that they or it intend to terminate the
Servicer as a result of such Servicer Termination Event, all authority and power
of the Servicer under this Agreement, whether with respect to the SBA Loans or
otherwise, shall, subject to Section 9.02 and the Multi-Party Agreement, pass to
and be vested in the Indenture Trustee and the Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including, but not limited
to, the transfer and endorsement or assignment of the SBA Loans and related
documents. The Servicer agrees to cooperate with the Indenture Trustee in
effecting the termination of the Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to the Indenture Trustee
for administration by it of all amounts which shall at the time be credited by
the Servicer to each Principal and Interest Account or thereafter received with
respect to the SBA Loans. The Indenture Trustee shall provide notice to the SBA
of any Servicer Termination Event of which a Responsible Officer of the
Indenture Trustee has knowledge and any actual termination hereunder.
Section 9.02 Indenture Trustee to Act; Appointment of
Successor
On and after the time of the Servicer's termination, or the Servicer's
receipt of notice if required by Section 9.01, or at any time if the Indenture
Trustee receives the resignation of the Servicer evidenced by an Opinion of
Counsel pursuant to Section 8.04 or the Servicer is removed as Servicer pursuant
to this Article IX, the Indenture Trustee shall be the successor in all respects
57
64
to the Servicer in its capacity as Servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof; provided, however, that the Indenture
Trustee shall not be liable for any actions of any Servicer prior to it, and
that the Indenture Trustee shall not be obligated to make advances or payments
pursuant to Sections 4.03, 4.10, 5.03, 5.10 or 5.11 but only to the extent the
Indenture Trustee determines reasonably and in good faith that such advances
would not be recoverable, such determination to be evidenced with respect to
each such advance by a certification of a Responsible Officer of the Indenture
Trustee. As compensation therefor, the Indenture Trustee shall be entitled to
all funds relating to the SBA Loans which the Servicer would have been entitled
to receive from the Principal and Interest Account pursuant to Section 4.04 if
the Servicer had continued to act as Servicer hereunder, together with other
servicing compensation in the form of assumption fees, late payment charges or
otherwise as provided in Sections 6.03 and shall be entitled to the Required
Holdback Amount.
Notwithstanding the above, the Indenture Trustee shall, if it is unable
to so act or if the SBA requests in writing to the Indenture Trustee, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established servicing institution acceptable to the SBA in its sole discretion
including but not limited to the SBA and satisfying, except in the case of the
SBA, the Rating Agency Condition, that has a net worth of not less than
$25,000,000, and which is an approved SBA guaranteed lender in good standing,
operating pursuant to an effective Loan Guaranty Agreement, as the successor to
the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Any
collections received by the Servicer after removal or resignation shall be
endorsed by it to the Indenture Trustee and remitted directly to the Person
entitled thereto under the Multi-Party Agreement. As compensation, any successor
servicer (including, without limitation, the Indenture Trustee) so appointed
shall be entitled to receive all funds relating to the SBA Loans which the
Servicer would have been entitled to receive from the Principal and Interest
Account pursuant to Section 4.04 if the Servicer had continued to act as
Servicer hereunder, together with any other servicing compensation in the form
of assumption fees, late payment charges or otherwise as provided in Section
6.03 and shall be entitled to the Required Holdback Amount. In the event the
Indenture Trustee is required to solicit bids as provided herein, the Indenture
Trustee shall solicit, by public announcement, bids from banks and mortgage
servicing institutions meeting the qualifications set forth above. Such public
announcement shall specify that the successor servicer shall be entitled to the
full amount of the aggregate Required Holdback Amounts as servicing
compensation, together with the other servicing compensation in the form of
assumption fees, late payment charges or otherwise. Within thirty days after any
such public announcement, the Indenture Trustee shall negotiate and effect the
sale, transfer and assignment of the servicing rights and responsibilities
hereunder to the qualified party submitting the highest qualifying bid. The
Indenture Trustee shall deduct from any sum received by the Indenture Trustee
from the successor to the Servicer in respect of such sale, transfer and
assignment all costs and expenses of any public announcement and of any sale,
transfer and assignment of the servicing rights and responsibilities hereunder
and the amount of any unreimbursed Servicing Advances and Monthly Advances.
After such deductions, the remainder of such sum shall be paid by the Indenture
Trustee as a Servicing Fee to the SBA at the time of such sale, transfer and
assignment to the
58
65
Servicer's successor. The Indenture Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. The Servicer agrees to cooperate with the Indenture Trustee and
any successor servicer in effecting the termination of the Servicer's servicing
responsibilities and rights hereunder and shall promptly provide the Indenture
Trustee or such successor servicer, as applicable, all documents and records
reasonably requested by it to enable it to assume the Servicer's functions
hereunder and shall promptly also transfer to the Indenture Trustee or such
successor servicer, as applicable, all amounts which then have been or should
have been deposited in the Principal and Interest Account or Spread Account by
the Servicer or which are thereafter received with respect to the SBA Loans.
Neither the Indenture Trustee nor any other successor servicer shall be held
liable by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Servicer hereunder. No appointment of a successor to the Servicer
hereunder shall be effective until written notice of such proposed appointment
shall have been provided by the Indenture Trustee to the SBA and each Noteholder
and Certificateholder and the Indenture Trustee and the SBA shall have consented
thereto. The Indenture Trustee shall not resign as servicer until a successor
servicer acceptable to the SBA has been appointed.
Subject to the Multi-Party Agreement, pending appointment of a
successor to the Servicer hereunder, the Indenture Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Indenture Trustee may make such arrangements for the
compensation of such successor out of payments on SBA Loans as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Servicer pursuant to Section 6.03 or otherwise as
provided in this Agreement. The Servicer, the Indenture Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SBA may, at its option, assume servicing of any SBA Loan in accordance
with SBA Rules and Regulations. If SBA becomes the successor Servicer or becomes
the servicer with respect to any particular SBA Loan in which the Unguaranteed
Interest is included in the Trust Fund, (i) SBA shall have no obligation to
perform any duties or comply with any obligations of the Servicer hereunder,
under the Basic Documents or under the Multi-Party Agreement if such performance
or compliance would violate the SBA Rules and Regulations in any respect and
(ii) except as specifically set forth under the Basic Documents or in the
Multi-Party Agreement, SBA's performance of any duties or compliance with any
obligations of the Servicer hereunder or under the Multi-Party Agreement will be
within SBA's sole discretion. As used in this paragraph, the phrase
"specifically set forth in the Multi-Party Agreement" shall refer only to a
specific identification of SBA.
Section 9.03 Waiver of Defaults.
The SBA may, or the Majority Noteholders may, on behalf of all the
Noteholders and Certificateholders and subject to the consent of the SBA, which
consent may not be unreasonably withheld, and satisfaction of the Rating Agency
Condition, waive any events permitting removal
59
66
of the Servicer pursuant to this Article IX; provided, however, that the
Majority Noteholders or the SBA may not waive a default in making a required
distribution on a Note without the consent of the holder of such Note. Upon any
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereto except to the extent
expressly so waived.
Section 9.04 Control by Majority Noteholders.
The SBA may, or the Majority Noteholders with the consent of the SBA
may, direct the time, method and place of conducting any proceeding relating to
the Trust or the Notes or for any remedy available to the Indenture Trustee or
the Owner Trustee with respect to the Trust or exercising any trust or power
conferred on the Indenture Trustee or the Owner Trustee with respect to the
Trust provided that:
(i) such direction shall not be in conflict with any
rule of law or with this Agreement;
(ii) the Indenture Trustee shall have been provided
with indemnity satisfactory to it; and
(iii) the Indenture Trustee or the Owner Trustee may
take any other action deemed proper by the Indenture Trustee
or the Owner Trustee which is not inconsistent with such
direction; provided, however, that the Indenture Trustee or
the Owner Trustee, as the case may be, need not take any
action which it determines might be unlawful, violate the
Trust Agreement, or involve it in personal liability or may be
unjustly prejudicial to the Holders not so directing.
60
67
ARTICLE X
TERMINATION
Section 10.01 Termination.
This Agreement shall terminate upon notice to the Indenture Trustee of
the earlier of the following events: (a) the final payment on or the disposition
or other liquidation by the Trust of the last SBA Loan or the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any SBA
Loan and the remittance of all funds due thereunder, or (b) mutual written
consent of the Servicer and all Noteholders and Certificateholders in writing.
The Servicer may, at its option, terminate this Agreement on any date
on which the Pool Principal Balance is less than 10% of the sum of (i) the
Original Pool Principal Balance and (ii) the Original Pre-Funded Amount by
purchasing, on the next succeeding Remittance Date (the first Remittance Date on
which the Pool Principal Balance has been reduced to such amount is the
"Optional Termination Date"), all of the Unguaranteed Interests in the SBA Loans
and Foreclosed Properties at a price equal to the sum of (i) 100% of the then
outstanding aggregate Principal Balances of such SBA Loans and Foreclosed
Properties, and (ii) 30 days' interest thereon at the then applicable weighted
average Class A Remittance Rate, Class M Remittance Rate and Class B Remittance
Rate (the "Termination Price"). Notwithstanding the prior sentence, if at the
time the Servicer determines to exercise such option the unsecured long-term
debt obligations of the Servicer are not rated at least Baa3 by Moody's and BBB-
by Fitch, if such Rating Agencies are still rating the Notes, the Servicer shall
give such Rating Agencies prior written notice of the Servicer's determination
to exercise such option and shall not exercise such option, without the consent
of such Rating Agencies, prior to furnishing such Rating Agencies with an
Opinion of Counsel, in form and substance reasonably satisfactory to such Rating
Agencies, that the exercise of such option would not be deemed a fraudulent
conveyance by the Servicer.
Notice of any termination, specifying the Remittance Date upon which
the Trust Fund will terminate and that the Noteholders shall surrender their
Notes to the Indenture Trustee for payment of the final distribution and
cancellation shall be given promptly by the Servicer by letter to Noteholders
mailed during the month of such final distribution before the Determination Date
in such month, specifying (i) the Remittance Date upon which final payment of
the Notes will be made upon presentation and surrender of Notes at the office of
the Indenture Trustee therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Remittance
Date is not applicable, payments being made only upon presentation and surrender
of the Notes at the office of the Indenture Trustee therein specified. The
Servicer shall give such notice to the Indenture Trustee and the SBA at the time
such notice is given to Noteholders. Any obligation of the Servicer to pay
amounts due to the Indenture Trustee shall survive the termination of this
Agreement.
In the event that all of the Noteholders shall not surrender their
Notes for cancellation within six months after the time specified in the
above-mentioned written notice, the Servicer
61
68
shall give a second written notice to the remaining Noteholders to surrender
their Notes for cancellation and receive the final distribution with respect
thereto and shall at the expense of the Trust Fund cause to be published once,
in the national edition of The Wall Street Journal notice that such money
remains unclaimed. If within six months after the second notice all of the Notes
shall not have been surrendered for cancellation, the Indenture Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Noteholders concerning surrender of their Notes and the cost
thereof shall be paid out of the funds and other assets which remain subject
hereto. If within the period then specified in the escheat laws of the State of
New York after the second notice all the Notes shall not have been surrendered
for cancellation, the Certificateholders shall be entitled to all unclaimed
funds and other assets which remain subject hereto and the Indenture Trustee
upon transfer of such funds shall be discharged of any responsibility for such
funds.
Section 10.02 Accounting Upon Termination of Servicer
Upon termination of the Servicer under Article IX hereof, the Servicer
shall:
(a) deliver to its successor or, if none shall yet have been appointed,
to the Indenture Trustee the funds in any Principal and Interest Account;
(b) deliver to its successor or, if none shall yet have been
appointed, to the Indenture Trustee all SBA Files and related documents and
statements held by it hereunder and an SBA Loan portfolio computer diskette;
(c) deliver to its successor or, if none shall yet have been
appointed, to the Indenture Trustee a full accounting of all funds, including a
statement showing the Monthly Payments collected by it and a statement of monies
held in trust by it for the payments or charges with respect to the SBA Loans;
and
(d) execute and deliver such instruments, consents or other
documents and perform all acts reasonably requested in order to effect the
orderly and efficient transfer of servicing of the SBA Loans to its successor
and to more fully and definitively vest in such successor all rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer under this
Agreement.
62
69
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Acts of Noteholders.
Except as otherwise specifically provided herein, whenever Noteholder
action, consent or approval is required under this Agreement, such action,
consent or approval shall be deemed to have been taken or given on behalf of,
and shall be binding upon, all Noteholders if the Majority Noteholders agree to
take such action or give such consent or approval.
Section 11.02 Amendment.
(a) This Agreement may be amended from time to time by the
Servicer and the Trust with the consent of the Indenture Trustee and the SBA,
without notice to or consent of the Noteholders or Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein, to comply with
any changes in the Code, or to make any other provisions with respect to matters
or questions arising under this Agreement which shall not be inconsistent with
the provisions of this Agreement; provided, however, that such action shall not,
as evidenced by an Opinion of Counsel delivered to the Indenture Trustee and the
SBA, adversely affect the interests of any Noteholder or Certificateholder or
any other party and further provided that no such amendment shall reduce in any
manner the amount of, or delay the timing of, any amounts received on SBA Loans
which are required to be distributed on any Note or Certificate without the
consent of the Holder of such Note or Certificate, or change the rights or
obligations of any other party hereto without the consent of such party.
(b) This Agreement may be amended from time to time by the
Servicer and the Trust with the consent of the Indenture Trustee and the SBA,
and the consent of the Majority Noteholders, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders;
provided, however, that no such amendment shall reduce in any manner the amount
of, or delay the timing of, any amounts which are required to be distributed on
any Note without the consent of the Holder of such Note or reduce the percentage
of Holders which are required to consent to any such amendment without the
consent of the Holders of 100% of the Notes and Certificates affected thereby,
and provided further, that no amendment affecting only one Class of Notes shall
require the approval of Holders of Notes of the other Class.
(c) It shall not be necessary for the consent of Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof.
Section 11.03 Recordation of Agreement.
To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
of the counties or other comparable
63
70
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at the Noteholders' expense on
direction of the Majority Noteholders, but only when accompanied by an Opinion
of Counsel to the effect that such recordation materially and beneficially
affects the interests of the Noteholders or is necessary for the administration
or servicing of the SBA Loans.
Section 11.04 Duration of Agreement.
This Agreement shall continue in existence and effect until terminated
as herein provided.
SECTION 11.05 GOVERNING LAW.
EXCEPT TO THE EXTENT INCONSISTENT WITH FEDERAL LAW, IN WHICH CASE
FEDERAL LAW WILL GOVERN, THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 11.06 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by overnight mail, certified mail or registered mail, postage prepaid, to (i) in
the case of the Servicer, the Company and Funding, First International Bank, 280
Trumbull Street, Hartford, Connecticut 06103, Attention: Theodore J. Horan, or
such other addresses as may hereafter be furnished to the Noteholders in writing
by the Seller and the Servicer, (ii) in the case of the Indenture Trustee, HSBC
Bank USA, 140 Broadway, New York, New York 10005, 12th Floor, Attention:
Corporate Trust Department, (iii) in the case of the Owner Trustee, First Union
Trust Company, National Association, One Rodney Square, 920 King Street,
Wilmington, Delaware 19801, Attention Corporate Trust Administration (iv) in the
case of the Noteholders, as set forth in the Note Register, (v) in the case of
the SBA, the United States Small Business Administration, 409 Third Street,
S.W., Washington, D.C. 20416, Attention: Associate Administrator for Financial
Assistance, (vi) in the case of Moody's, to Moody's Investors Service, ABS
Monitoring Department, 99 Church Street, 4th Floor, New York, New York 10007,
and (vii) in the case of Fitch, to Fitch, Inc., One State Street, New York, New
York 10004. Any such notices shall be deemed to be effective with respect to any
party hereto upon the receipt of such notice by such party, except that notices
to the Noteholders shall be effective upon mailing or personal delivery.
Section 11.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms
64
71
of this Agreement and shall in no way affect the validity or enforceability of
the other covenants, agreements, provisions or terms of this Agreement.
Section 11.08 No Partnership.
Nothing herein contained shall be deemed or construed to create a
co-partnership or joint venture between the parties hereto and the services of
the Servicer shall be rendered as an independent contractor and not as agent for
the Noteholders.
Section 11.09 Counterparts.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement.
Section 11.10 Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
Sellers and the Servicer, the Indenture Trustee and the Noteholders and their
respective successors and assigns.
Section 11.11 Headings.
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
Section 11.12 Notification to Rating Agencies.
The Indenture Trustee shall give prompt notice to the Rating Agencies
of the occurrence of any of the following events of which it has received
notice: (1) any modification or amendment to this Agreement, (2) any change of
the Indenture Trustee, the Servicer or Paying Agent, (3) any Event of Default or
Servicer Termination Event, and (4) the final payment of all the Notes. The
Servicer shall promptly deliver to the Rating Agencies a copy of each of the
Servicer's Certificates. Further, the Servicer shall give prompt notice to the
Rating Agencies if the Servicer or any of its Affiliates acquires any Notes.
Section 11.13 Inconsistencies.
The parties hereto and each Noteholder and each Certificateholder, by
its acceptance of its Note or Certificate, as applicable, acknowledge and agree
that if any provision of this Agreement is inconsistent with any provision in
the Multi-Party Agreement, the provision of the Multi-Party Agreement shall
control.
65
72
Section 11.14 Limitation of Liability.
Notwithstanding any other provision herein or elsewhere, this Agreement
has been executed and delivered by First Union Trust Company, National
Association (the "Trust Company"), not in its individual capacity, but solely in
its capacity as Owner Trustee of the Trust or as Owner Trustee of Funding, as
the case may be, in no event shall the Trust Company or either such Owner
Trustee have any liability in respect of the representations, warranties, or
obligations of the Trust or Funding hereunder or under any other Basic Document,
as to all of which recourse shall be had solely to the assets of the Trust or
Funding, as the case may be, and for all purposes of this Agreement and each
other Basic Document, each such Owner Trustee and the Trust Company shall be
entitled to the benefits of the Trust Agreement of the Trust and/or the Trust
Agreement of Funding, as the case may be.
Section 11.15 No Petition
The Servicer and the Sellers will not, prior to the date which is one
year and one day after the termination of the Indenture, institute against the
Trust any bankruptcy proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Sale and Servicing Agreement or any of the other
Basic Documents.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
66
73
IN WITNESS WHEREOF, the Company, Funding, the Servicer and the Trust
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above written.
FIRST INTERNATIONAL BANK
as Seller and Servicer
By: /s/ Ted Horan
------------------------------------
Name: Ted Horan
-----------------------------
Title: Senior Vice President
-----------------------------
FIB FUNDING TRUST,
as Seller
By: First Union Trust Company, National
Association, not in its individual capacity
but solely as Owner Trustee on behalf of FIB
Funding Trust
By: /s/ Edward L. Truitt, Jr.
------------------------------------
Name: Edward L. Truitt, Jr.
-----------------------------
Title: Vice President
-----------------
FIRST INTERNATIONAL BANK SBA
LOAN TRUST 2000-2
By: First Union Trust Company, National
Association, not in its individual capacity but
solely as Owner Trustee on behalf of the Trust
By: /s/ Edward L. Truitt, Jr.
------------------------------------
Name: Edward L. Truitt, Jr.
-----------------------------
Title: Vice President
-----------------------------
67
74
Accepted and Agreed to:
HSBC BANK USA, not in its individual
capacity, but solely as Indenture Trustee
By: /s/ James M. Foley
------------------------------------
Name: James M. Foley
---------------------------
Title: Assistant Vice President
---------------------------
68
75
STATE OF DELAWARE )
: ss.:
COUNTY OF NEW CASTLE )
On the 21st day of November, 2000 before me, a Notary Public in and for
said State, personally appeared Edward Truitt known to me to be an officer of
First Union Trust Company, National Association, the trust company that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said banking corporation, and acknowledged to me that such banking
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Michael J. Riley
------------------------------------------
Notary Public
My Commission expires 01/12/02
---------------------
M-1
76
STATE OF CONNECTICUT )
: ss.:
COUNTY OF HARTFORD )
On the 20th day of November, 2000 before me, a Notary Public in and for
the State of Connecticut, personally appeared Ted Horan known to me to be the
Senior Vice President of First International Bank, one of the corporations that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Shari L. Olden
------------------------------------------
Notary Public
My Commission expires 09/30/03
-------------------
M-2